What is the Purpose of Zoning?

In the United States (and here in North Carolina), zoning laws are the main type of legal mechanism used to regulate the use of land and property. Generally, zoning laws apply to all types of land including land owned privately and government-owned land (although governments often exempt themselves from zoning laws). At a philosophical level, the purpose of zoning laws is to find a balance between the rights of landowners against the interests of the public. In society currently, that balance now favors the public interest. It has been a long time since it was deemed proper and allowable for private landowners to have absolute and unregulated use of their land. Indeed, in these modern times, through the use of zoning laws, all land use is regulated and controlled. Even where land is relatively free from regulation, such as farm land here in North Carolina, that freedom from regulation is provided by statute. But, freedom given by a statute can be revoked by a new statute.

In North Carolina, zoning laws must be approved by a relevant public authority such as a county or municipal government. The zoning must also be part of a larger approved comprehensive plan. In general, the "zones" in zoning laws and regulations refer to geographic blocks of land and areas where certain types of land use are permitted. Examples would be single-family residential, multi-family, light industry, commercial, and other zones. Within designated zones, only certain types of land use are allowed. Further, before a land use can commence -- that is, before a structure can be built -- approval must be sought. In other words, a permit must be obtained from the relevant zoning department or board or other government agency.

While zoning is often focused on designating areas on a map, as discussed here, actual zoning laws fall into several different types including:

• Functional
• Form-based
• Intensity and
• Incentive-based

Functional zoning is the most common type of zoning and is probably what most people think of when they consider zoning laws. The zones are regulated by the function of the land. Again, residential zoning is an example. On the other hand, form-based zoning is often more about the look of an area, its aesthetic appeal. Historical districts are examples of form-based zoning. There is often an overlap in types of zoning. Again, historical districts provide an example where the function -- residential -- overlaps with the form-based zoning regulations. As the name suggests, intensity zoning focuses on density of population, structures or uses. Finally, there is a somewhat rare type of zoning that is focused on incentivizing land uses. Typically, such zoning is done in conjunction with tax incentives.

So, what is the purpose of zoning laws and regulations? What are their justifications? Almost universally, the purpose/justification for zoning is said to be the need to protect public health, safety, and general welfare. For example, this is the purpose/justification given by R. Robert Linowes and Don T. Allensworth in their book, The Politics of Land Use. See brief summary here. More specifically, protecting health and safety involves use of zoning laws to:

• Reduce density of building to protect against fires, contagions and other dangers to the public safety and health
• Prohibit uses that might result in fires, explosions and other hazards to the general public
• Promote opens spaces and prohibit structures so as to provide light, air circulation and other benefits
• Reduce congestion that can result in hazards on public roads and in public spaces
• And more

Zoning laws and regulations also protect the general welfare by:

• Promoting the stability of neighborhoods and areas
• Directing an orderly and beneficial development of areas
• Mandating open spaces and forms which enhance and/or maintain the ascetic appeal of areas
• And more

Zoning laws and regulations also have monetary purposes for governmental units and private landowners. These include uses and support of zoning laws to maintain land values, to promote, conserve and maximize the real estate tax base, and provide a mechanism for the government to collect fees for permits and fines for violation of zoning laws.

Finally, zoning laws and regulations have an important purpose in directing and guiding how local governments provide services like sewer, water, public schools, public transportation, roads, recreation areas and venues, ports and airports, etc.

Inclusionary zoning is a type of zoning ordinance that creates a set-aside for residential housing. Inclusionary zoning comes in many forms, but, generally, it either mandates or incentivizes that a given percentage of new homes/apartments in medium-to-large developments must be priced for sale or for lease to be affordable by those with low to moderate incomes. A good example can be seen in the exclusionary zoning ordinance recently passed in New Haven, Connecticut. See news media report here.

Like many such zoning laws, the New Haven ordinance has different affordable housing requirements depending on where the development is planned, how many units are requested and whether the property was public land and transferred to the developer. The ordinance applies to new and significantly rehabbed rental apartment buildings citywide. For such buildings, developers must set aside a certain percentage of units at rents that are affordable to tenants earning no more than 50% of the area median income ("AMI") which is currently about $42,000. For example, for a ten-unit building that is transferred from public ownership to the developer, 20% of the units must be rented at 50% of AMI. For new or significantly rehabbed buildings with 10 or more apartments in the downtown “Core” area of New Haven must set aside 10% of the units at rental prices set at 50% AMI and another 5% percent for tenants with federal Section 8 rental subsidies.

The ordinance also provides various incentives for developers including an increase in allowable density, a waiver of parking space requirements, and significant tax abatements. Developers can also pay an in-lieu fee of anywhere from $168,000 to $225,000 to avoid the set-aside requirements. The requirements must be set out in the deed to the property, so the requirements apply to future owners. The term required by the New Haven ordinance is 99 years.

The answer is "no," although several North Carolina cities have passed inclusionary zoning ordinances aimed at the SALE of residential units and/or that have tried to obtain voluntary compliance from developers. For example, Chapel Hill passed an inclusionary zoning ordinance in 2010. See here.

North Carolina has a statute that bans any sort of rent control and, for rental properties, inclusionary zoning ordinances are de facto rent control ordinances. For this reason, Chapel Hill did not try to apply their zoning ordinance to rental property.

But, as reported, the Chapel Hill experiment failed in trying to apply inclusionary zoning to the sale of residential units and to obtain voluntary compliance. As reported, the ordinance resulted in the creation of only eight affordable rental units during the first five years after enactment.

Another legal hurdle for inclusionary zoning in North Carolina is the fact that the zoning powers of local governments are entirely based on what is granted by North Carolina statutes. Courts have generally said that municipalities and local governments only have the zoning power granted. For example, N.C. Gen. Stat., § 160D-702(a) states in part that:

• "... a zoning regulation may regulate and restrict the height, number of stories, and size of buildings and other structures; the percentage of lots that may be occupied; the size of yards, courts, and other open spaces; the density of population; the location and use of buildings, structures, and land."

Note that inclusionary zoning is not among the powers listed in the statute and there is no "catchall phrase." Some have argued that the phrase "use of buildings" might allow for inclusionary zoning, but inclusionary zoning has not been tested in North Carolina courts.

There have been yearly efforts by North Carolina lawmakers to allow inclusionary zoning. See here for Senate Bill 426 sponsored in 2021 by Senators Mayfield, Salvador, and Murdock to amend § 160D-702(a) to permit local governments to enact inclusionary zoning regulations. Inclusionary zoning is widely used in California, but Montana recently passed a law banning this form of zoning. See news report here.

For more information, and to schedule a confidential consultation with experienced and dedicated zoning and land use attorneys in Charlotte, contact Arnold & Smith, PLLC. Use our “Contact” page or give us a call at 704-370-2828. We handle land use, zoning and condemnation legal matters in Mecklenburg County and elsewhere in North Carolina. We have offices in Charlotte, Lake Norman, and Union County.