DEPARTMENT OF COMMERCE

HERBERT HOOVER, SECRETARY

A STANDARD

STATE ZONING ENABLING ACT

UNDER WHICH MUNICIPALITIES MAY ADOPT ZONING

REGULATIONS

BY THE

ADVISORY COMMITTEE ON ZONING

WASHINGTON

GOVERNMENT PRINTING OFFICE

1924

DEPARTMENT OF COMMERCE

HERBERT HOOVER, SECRETARY

A STANDARD

STATE ZONING ENABLING ACT

UNDER WHICH MUNICIPALITIES MAY ADOPT ZONING

REGULATIONS

BY

THE ADVISORY COMMITTEE ON ZONING

APPOINTED BY SECRETARY HOOVER

EDWARD M. BASSETT Counsel, Zoning Committee of New York. Lawyer. IRVING B. HIETT Ex-President, National Association of Real Estate

Realtor. Boards. JOHN IHLDER Manager, Civic Development Department of the Housing Consultant. Chamber of Commerce of the United States. MORRIS KNOWLES From the Chamber of Commerce of the United

Consulting Engineer. States. NELSON P. LEWIS From the National Conference on City Planning Municipal Engineer. and National Municipal League; Past Presi- dent, American City Planning Institute.

J. HORACE McFARLAND President, The American Civic Association. Master Printer and Civic Investigator. FREDERICK LAW OLMSTED President, The American Society of Landscape

Landscape Architect. Architects ; Past President, American City Planning Institute. LAWRENCE VEILLER Secretary and Director, The National Housing

Housing Expert. Association.

JOHN M. GRIES

Chief, Division of Building and Housing, Bureau of Standards, Department of Commerce

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1924
PREFACE.

A standard State zoning enabling act, under which municipalities

may adopt zoning regulations, was first issued in mimeographed

form in August, 1922. A revised edition was made public in the

same form in January, 1923, and since then a few minor changes

have been made. The act is now printed in order to make it available to a larger number of people.

The circulation of the standard act in its preliminary form was

not confined to those directly interested in the drafting of State

zoning legislation. Calls for it were received from persons in all sections of the country who desired to use it on account of its general

bearing on the legal and social aspects of zoning.
CONTENTS.

Page.

Foreword, by Herbert Hoover, Secretary of Commerce iv Explanatory notes in general 1 A standard State zoning enabling act 4

Sec. 1. Grant of power 4

Sec. 2. Districts 5

Sec. 3. Purposes in view 6

Sec. 4. Method of procedure 7

Sec. 5. Changes 7

Sec. 6. Zoning Commission 8

Sec. 7. Board of Adjustment 9

Sec. 8. Remedies 11

Sec. 9. Conflict with other laws 12

78055°—24 in
FOREWORD.

By Hekbeet Hoover.

The importance of this standard State zoning enabling act can

not well be overemphasized. When the advisory committee on zon- ing was formed in the Department of Commerce, the proposal to

frame it received unanimous support from the public-spirited organizations represented on the committee, and other groups interested in

zoning. The urgency of the need for such a standard act was at once demonstrated, when, within a year of its issuance, 11 States passed

zoning enabling acts which were modeled either wholly or partly

after it. Similar acts have been introduced in 4 other States, with

the prospect of more to follow.

The discovery that it is practical by city zoning to carry out reasonable neighborly agreements as to the use of land has made an almost

instant appeal to the American people. When the advisory committee on zoning was formed in the Department of Commerce in

September, 1921, only 48 cities and towns, with less than 11,000,000

inhabitants, had adopted zoning ordinances. By the end of 1923, a

little more than two years later, zoning was in effect in 218 municipalities, with more than 22,000,000 inhabitants, and new ones are being added to the list each month.

In this rapid movement the fundamental legal basis on which zon- ing rests can not be overlooked. Several of our States, fortunately,

already have zoning enabling acts that have stood the test in their

own courts. This standard act endeavors to provide, so far as it is practicable to foresee, that proper zoning can be undertaken under it without injustice and without violating property rights. The committee did not make it public until it had given it the most exacting

and painstaking study in relation to existing State acts and court

decisions and with reference to zoning as it has been praoticed and

found successful in cities and towns throughout the country. Practical zoners who have been associated with a majority of zoned cities

were consulted for their opinions, and the committee itself represents

the professional, commercial, and civic societies most interested in

zoning problems.

The drafting of the act has required very large effort, and the

members of the advisory committee on zoning, particularly those who

served on the subcommittee on standard law, merit the gratitude of

the people of the United States for the thoroughness with which they

executed their task.

February 15, 1924.

IV
A STANDARD STATE ZONING ENABLING ACT UNDER WHICH

MUNICIPALITIES MAY ADOPT ZONING REGULATIONS.

EXPLANATORY NOTES IN GENERAL.

1. An enabling act is advisable in all cases.—There is a tendency

in some States to assume that the powers contained in home rule

charters are sufficient to enable a municipality to undertake zoning.

This is often a mistaken belief, and some zoning ordinances have been

set aside because the municipality had not been granted the specific

power to do that which zoning implies.

2. Constitutional amendments not required.—No amendment to the

State constitution, as a rule, is necessary. Zoning is undertaken

under the police power and is well within the powers granted to the

legislature by the constitutions of the various States.

3. Modify this standard act as little as possible.—It has been prepared with a full knowledge of the decisions of the courts in every

case in which zoning acts have been under review. A safe course to

follow is to make only those changes necessary to have the act con- form to local legislative customs and modes of expression.

4. Adding neio words and phrases.—Especial caution is given to

beware of adding additional words and phrases which, as a rule,

restrict the meaning, from the legal point of view.

5. Do not try to consolidate sections.—It is natural to try to

shorten the act by consolidating sections. This may defeat one of

the purposes of the act, namely, of keeping the language of the

statute as simple and concise as possible. It is much better to have

an act broken up into a number of sections, provided they are properly drawn, than to have one or two, or a few long involved sections.

While it is recognized that some of the sections in the standard act

could be combined, it is put purposely in its present form.

6. Title and enacting clause necessary.—No title of the act and no

enacting clause have been included. These are purposely omitted,

as the custom varies in almost every State. The act should, of course,

be preceded by the appropriate title and enacting clause in accord- ance with the local legislative custom.

7. Definitions.—No definitions are included. The terms used in

the act are so commonly understood that definitions are unnecessary. Definitions are generally a source of danger. They give to

words a restricted meaning. No difficulty will be found with the

operation of the act because of the absence of such definitions.

1
2 V. S. DEPARTMENT OF COMMERCE.

8. Validity of one section affecting other sections.—Some States

have included in the enabling act a declaration to the effect that the

finding void or unconstitutional by the courts of one seotion or provision shall not affect the rest of the act. This is so well accepted

a principle of legal interpretation that it seems unnecessary to include it in the act. If any State desires to have it included, it can

be added without danger.

9. No declaration that Act is not retroactive.—Some laws contain a provision to the effect that "the powers by this Act conferred

shall not be exercised so as to deprive the owner of any existing

property of its use or maintenance for the purpose to which it is

then lawfully devoted." While the almost universal practice is to

make zoning ordinances nonretroactive, it is recognized that there

may arise local conditions of a peculiar character that make it necessary and desirable to deal with some isolated case by means of a retroactive provision affecting that case only. For this reason

it does not seem wise to debar the local legislative body from dealing

with such a situation.

10. The repeal clause.—No repeal clause has been included in the

act for the reason that the method of phrasing such a clause will

vary in nearly every State. The local legislative custom as to repeal

clauses should be followed.

11. Date of taking effect.—For similar reasons the act does not

include any provision as to the date on which it will take effect. Here

also the local legislative custom should be followed.

12. Typical ordinances or local regulations.—The department is now making a careful study of a group of typical zoning ordinances.

It is expected that a supplementary publication on this subject will

be forthcoming.

13. Interim ordinances.—After the local legislative authorities

have the power to zone, they are nearly always pressed to bring

immediate protection to certain threatened localities. Sometimes

the authorities frame an ordinance to cover a few blocks, or only a part of the city; this is called piecemeal zoning. Its adoption is

inadvisable and may lead to much litigation. Interim zoning,

although undesirable, is not as objectionable as piecemeal zoning.

Interim zoning, at least, has the advantage of applying to the whole

city. For instance, an ordinance providing that, wherever threefourths of the houses in a block are residential, then no new business

structure or factory can be built in that block, is an illustration of

interim zoning. The reason it is objectionable is because it is too

general, not sufficiently adapted to the particular need of each street,

and therefore likely to be arbitrary in many cases. In such case,

if a new house is built or an old one destroyed, the legal protection

of the district may be altered. In this sense the district is a " travel-
A STANDARD STATE ZONING ENABLING ACT. 3

ing zone." As such, a district has no stability, and as the police

power may be differently applied according to the acts of property

owners, it is not looked upon with favor by the courts. To prevent

this, the words " at the time of the passage of this ordinance " should

be inserted. If it is deemed necessary to prohibit a nonconforming

building because of the consents or protests of the property owners,

the ordinance should always be phrased so as to prohibit the non- conforming use, unless the desired majority files written consents

with the officials. In other words, a provision which conditions the

permission to have a nonconforming use upon the consents of a majority of the property owners is void. If at all possible, the first

zoning ordinance should be comprehensive.
A STANDARD STATE ZONING ENABLING ACT.

Section 1. Grant of Power.—For the purpose of promoting

health, 1 safety, morals, or 2 the general welfare 3 of the community,

the legislative body 4 of cities and incorporated villages 5 is hereby

empowered to regulate and restrict 6 the height, number of stories, 7

1 "health" : It is to be noted that the word used is " health." not " public

health," for the latter narrows the application. There are some things that

relate to the health only of the people living in a given dwelling, such, for

instance, as the size of yards, and have only a remote relation to public health.

If the term "public health" were used, the act might be set aside in a given

case where it would be possible to show that the particular provision in which

legal action was being taken did not concern itself with the public health but

only with health.

a "0r" ; it should be noted that the word used is " or " and not the word " and."

If the latter word were used, then it might be necessary to show to the satis- faction of the court that all four of the purposes mentioned were involved in a

given case, viz, health, safety, morals, and general welfare. The use of the word

"or" limits the application to any one of the four instead of to all of them.

* "general welfare" : The main pillars on which the police power rests are

these four, viz, health, safety, morals, and general welfare. It is wise, therefore, to limit the purposes of this enactment to these four. There may be

danger in adding others, as " prosperity," " comfort," " convenience," " order,"

"growth of the city," etc., and nothing is to be gained thereby.

* "legislative body" : This term is sufficiently understood to include all forms

of government, including commission and city manager, as well as the older

forms of government. Whatever form of government exists, there must be some local body performing legislative functions.

'"cities and incorporated villages": This phrase includes those municipalities

which ordinarily will find it advantageous to be given zoning powers. In some

States, where different forms of governmental provisions exist, it will be

necessary to add those municipalities to the term "cities and incorporated villages ; " in other States the word " town " or " borough " will probably need

to be added. The term " cities and incorporated villages," however, will cover

the normal situation.

""regulate and restrict": This phrase is considered sufficiently all-embracing.

Nothing will be gained by adding such terms as "exclude," " segregate," " limit,"

" determine."

7 "number of stories" : It is thought wise to add this to the term " height," as

courts may construe this expression narrowly, as limited to a given number of

feet only, and may hold that this does not give the power to limit the number

of stories, provided the building in question came within the limitation of the

number of feet imposed by the ordinance. It is obvious that the power to

restrict the number of stories should be granted.

4
A STANDARD STATE ZONING ENABLING ACT. 5

and size of buildings 8 and other structures,9 the percentage of lot 10

that may be occupied, the size of yards, courts, and other open

spaces, 11 the density of population,12 and the location and use 13 of

buildings, structures, and land for trade, industry, residence, or

other purposes.1 *' 15

Sec. 2. Districts.—For any or all of said purposes the local legislative body may divide the municipality 16 into districts of such number, shape," and area as may be deemed best suited to carry out the

purposes of this Act; and within such districts it may regulate and

restrict the erection, construction, reconstruction, alteration, repair,

8 "size of buildings" : The term " size " is a better expression to use than

"bulk" or "area," for the reason that both "bulk" and "area" imply, to some

extent, a regularity of outline that may not be involved in all cases, whereas

"size" is sufficiently all-inclusive to cover all contingencies.

* "other structures" : This phrase would include other structures which

possibly might not be denned as "buildings," such as open sheds, billboards,

fences, spite fences, etc., none of which can be strictly considered as " buildings," as commonly understood. " " percentage of lot " : This is a better method of expression than granting

the power to limit " the area of the building, " as has been done in some laws,

for the latter expression does not imply a variation of the fraction of the lot built upon.

11 " other open spaces " : This is a catch-all expression and is necessary in view of the fact that " yards " and "courts " are not defined in the Act.

12 " density of population " : The power to regulate density of population

is comparatively new in zoning practice. It is, however, highly desirable.

Many different methods may be employed. For this reason the phrase "density

of population " is a better phrase to use than one giving the power to " limit

the number of people to the acre, " as this is only one method of limiting density of population. It may be more desirable to limit the number of families to the acre or the number of families to a given house, etc. The expression " number of people to the acre " is therefore more limited in its meaning and de- scribes only one way of reducing congestion of population, while the phrase

" limiting density of population " is all-embracing. It is believed that, with

proper restrictions, this provision will make possible the creation of one- family residence districts. m " use " : This term is broad enough to include all meanings desired.

M " other purposes " : This is a catch-all phrase. It will include every use. "Although the power to require open spaces allows the fixing of setback

building lines, some recent acts contain a specific grant of that power. The

establishment of setback lines is somewhat novel in zoning practice but is be- ginning to be employed. As it is in the minds of some people of doubtful legality and has not as yet been sustained by the courts, this power has not been

included here. If it should be desired to grant such power, it can readily be

done by adding at the end of this section the following words : " and may also

establish setback building lines. " M " municipality " : This term is sufficiently broad to include cities, towns,

villages, boroughs, or whatever governmental unit may be involved.

17 " shape " : This permits districts of irregular outline, something that is quite necessary.
6 TJ. S. DEPARTMENT OF COMMERCE.

or use18 of buildings, structures, or land. All such regulations shall

be uniform for each class or kind of buildings throughout each district, 19 but the regulations in one district may differ 20 from those in

other districts.

Sec. 3. Purposes in View.21—Such regulations shall be made

in accordance with a comprehensive plan 22 and designed 23 to

lessen congestion in the streets; to secure safety from fire, panic,

and other dangers; to promote health and the general welfare; to

provide adequate light and air; to prevent the overcrowding of

land; to avoid undue concentration of population; to facilitate the

adequate provision of transportation, water, sewerage, schools,

parks, and other public requirements. Such regulations shall be

made with reasonable consideration, among other things, to the

character of the district and its peculiar suitability for particular

uses,

24 and with a view to conserving the value of buildings 25 and

encouraging the most appropriate use of land throughout such municipality.

18 " reconstruction, alteration, repair, or use " : All of these words are thought necessary, So as to allow no loophole for evasion of the law. " " uniform for each class or kind of buildings throughout each district "

:

This is important, not so much for legal reasons as because it gives notice to property owners that there shall be no improper discriminations, but that all in the same class shall be treated alike. " " may differ " : This is the essence of zoning, and without this express authority from the legislature to make different regulations in different districts,

zoning might be of doubtful validity.

31 " Purposes in view " : This section should be clearly differentiated from

the statement of purpose (under the police power) contained in the first sentence of section 1. That defined and limited the powers created by the

legislature to the municipality under the police power. This section con- tains practically a direction from the legislative body as to the purposes in

view in establishing a zoning ordinance and the manner in which the work

of preparing such an ordinance shall be done. It may be said, in brief, to constitute the " atmosphere " under which the zoning is to be done. a " with a comprehensive plan

: This will prevent haphazard or piecemeal zoning. No zoning should be done without such a comprehensive study. a " and designed " : This is the statement of direction given by the legislature referred to in note 21. It has purposely been made to include many

purposes. There are not the same dangers involved here that there are in adding to the statement of purposes under the police power, as set forth in

the first sentence of section 1. M " peculiar suitability for particular uses " : This is a reassurance to property interests that zoning is to be done in a sane and practical way.

a " conserving the value of buildings "

: It should be noted that zoning is not intended to enhance the value of buildings, but to conserve that value

that is, to prevent depreciation of values such as come in " blighted districts," for instance—but it is to encourage the most appropriate use of land.
A STANDARD STATE ZONING ENABLING ACT. 7

Sec. 4. Method of Procedure.—The legislative body of such

municipality shall provide for the manner26 in which such regulations and restrictions and the boundaries of such districts shall be

determined, established, and enforced, and from time to time

amended, supplemented, or changed. However, no such regulation,

restriction, or boundary shall become effective until after a public

hearing 27 in relation thereto, at which parties in interest and citi- zens 28 shall have an opportunity to be heard. At least 15 days'

notice 29 of the time and place of such hearing shall be published in an

official paper, or a paper of general circulation, in such municipality.

Sec. 5. Changes.30—Such regulations, restrictions, and boundaries

may from time to time be amended, supplemented, changed, modified, or repealed. In case, however, of a protest against such change,31

signed by the owners of 20 per cent or more either of the area of

the lots32 included in such proposed change, or of those immediately

28 " provide for the manner "

: In view of the great variety In the form of

government that exists throughout the country, it is not thought wise to use

the expression "provide by ordinance," for that method may be inappropriate

in those communities that have commission government or city managers.

n " after a public hearing

: It is thought wise to require by statute that

there must be a public hearing before a zoning ordinance becomes effective. There should be, as a matter of policy, many such hearings.

28 " and citizens

: This permits any person to be heard, and not merely

property owners whose property interests may be adversely affected by the

proposed ordinance. It is right that every citizen should be able to make

his voice heard and protest against any ordinance that might be detrimental

to the best interests of the city. " 15 days' notice " : This requirement can be varied to conform to local custom. All that is important is that there should be due and proper notice

and ample time for citizens to study the proposals and make their opposition

manifest.

30 " Changes

: It is obvious that provision must be made for changing

the regulations as conditions change or new conditions arise, otherwise zoning

would be a " strait-jacket " and a detriment to a community instead of an

asset.

31 " change " : This term, as here used, it is believed will be construed by

the courts to include " amendments, supplements, modifications, and repeal,"

in view of the language which it follows. These words might be added after

the word " change," but have been omitted for the sake of brevity. On the

other hand, there must be stability for zoning ordinances if they are to be of

value. For this reason the practice has been rather generally adopted of per- mitting ordinary routine changes to be adopted by a majority vote of the local legislative body, but requiring a three-fourths vote in the event of a protest

from a substantial proportion of property owners whose interests are affected. This has proved in practice to be a sound procedure, and has tended to stabilize

the ordinance.

32 " area of the lots " : Most laws heretofore enacted, based on the first enactment in New York City, have used ownership of feet frontage as the

basis for this consent This has given rise to many difficulties in practice,
8 U. S. DEPARTMENT OF COMMERCE.

adjacent33 in the rear thereof8* extending feet therefrom,85 or of

those directty opposite36 thereto extending feet35 from the street

frontage of such opposite lots, such amendment shall not become

effective except by the favorable vote of three-fourths of all the

members37 of the legislative body of such municipality. The provisions of the previous section relative to public hearings and official

notice shall apply equally to all changes or amendments.

Sec. 6. Zoning Commission.—In order to avail itself of the powers conferred by this act,38 such legislative body shall appoint a commission,39 to be known as the Zoning Commission, to recommend

the boundaries of the various original districts and appropriate

especially with corner lots which have frontage on two streets and whose

owners accordingly have had two votes to the single vote of the other property owners. In order to get rid of this unnecessarily complex method of

determining solely the question of assent to a change in the ordinance, it is recommended that area of the lots included in the proposed change be used as

the basis, instead of feet frontage. This will do away with the present unfair

element of double voting and the unnecessary complications of the generally

used method.

33 " or of those immediately adjacent " : There are three groups of property

ownership, and if 20 per cent of any one of these object to the proposed change

it will require a three-fourths vote of the legislative body before the change

can become effective. These three are (1) the owners of the lots included in the change, (2) the owners of the lots immediately adjacent in the rear, and

(3) the owners of the lots directly opposite.

34 " immediately adjacent in the rear thereof " : This phrase is necessary for

precision ; otherwise there will be doubt, and owners of lots in the rear but some distance away might claim the right to be included in the objection.

B5 " extending feet therefrom " : There should be inserted in the Act the

number of feet which is the .prevailing lot depth in the municipalities of the

state.

36 " directly opposite "

: The same considerations apply to this phrase as to

" immediately adjacent in the rear thereof."

3 ? " all the members": It is important to use this expression, otherwise

changes in the ordinance might be made by a three-fourth's vote of the members present at a given meeting.

** " In order to avail itself of the poioers conferred by this Act " : Without

this phrase it would be necessary for the local legislative body forthwith to appoint a zoning commission, even though it was not desired to take up zon- ing at that time. This Act is an enabling act empowering action, not making

it mandatory.

" shall appoint a commission "

: Even though a committee of the local legislative body might be entirely competent to undertake the painstaking, careful,

and prolonged detailed study that is ordinarily involved in the preparation of a zoning ordinance and map, the appointment of an outside body of representative citizens is most desirable as a means of securing that participation in and thorough understanding of the zoning ordinance which will insure its ac- ceptance by the people of the particular municipality. One of the most important functions of such a commission is the holding of numei'ous conferences

in all parts of the city with all classes of interests. No zoning ordinance

should be adopted until such work has been done.
A STANDARD STATE ZONING ENABLING ACT. 9

regulations to be enforced therein. Such commission shall make a preliminary report and hold public hearings thereon before submitting its final report, and such legislative body shall not hold its

public hearings or take action until 40 it has received the final report

of such commission. Where a city plan commission 41 already exists, it may be appointed 42 as the Zoning Commission.43

Sec. 7. Board of Adjustment.—Such local legislative body may

provide for the appointment of a Board of Adjustment, and in the

regulations and restrictions adopted pursuant to the authority of this

act may provide that the said Board of Adjustment may, in appropriate cases and subject to appropriate conditions and safeguards,

make special exceptions to the terms of the ordinance in harmony

with its general purpose and intent and in accordance with general or

specific rules therein contained.

The Board of Adjustment shall consist of five members, each to

be appointed for a ter-m of three years 44 and removable for cause by

the appointing authority upon written charges and after public

hearing. Vacancies shall be filled for the unexpired term of any

member whose term becomes vacant.

The board shall adopt rules in accordance with the provisions of

any ordinance adopted pursuant to this act. Meetings of the board

shall be held at the call of the chairman and at such other times

as the board may determine. Such chairman, or in his absence the

acting chairman, may administer oaths and compel the attendance of

witnesses. All meetings of the board shall be open to the public. The

** " shall not hold its public hearings or take action until " : This is a proper

safeguard against hasty or ill-considered action. It should be carefully noted

that this is in no sense a delegation of its powers by the local legislative body

to the Zoning Commission. The legislative body may still reverse the recom- mendations of the Zoning Commission.

a " city plan commission

: It is highly desirable that all zoning schemes

should be worked out as an integral part of the city plan. For that reason

the city plan commission, preferably, should be intrusted with the making of

the zoning plan. a " may be appointed "

: It should be noted that its appointment is not made

mandatory, however, as sometimes there will be local reasons for desiring a separate body.

13 "Zoning Commission " : Some laws contain a provision to the effect that all changes in the ordinance shall be reported upon by the Zoning Commission be- fore action on them can be taken by the legislative body. Such a provision

has not been included here. In the first place, that involves continuing the

Zoning Commission as a permanent body, which may not be desirable. In the

second place, it is before a zoning ordinance is established that the necessity

exists for that careful study and investigation which a Zoning Commission can

so well perform. Amendments to the original ordinance do not, as a rule, re- quire such comprehensive study and may be passed upon by the legislative

body provided that proper notice and opportunity for the public to express its views have been given.

** " each to be appointed for three years " : This can be altered to provide for

overlapping terms, if desired.
10 U. S. DEPAKTMENT OF COMMERCE.

board shall keep minutes of its proceedings, showing the vote of each

member upon each question, or, if absent or failing to vote, indicating

such fact, and shall keep records of its examinations and other official

actions, all of which shall be immediately filed in the office of the

board and shall be a public record.

Appeals to the Board of Adjustment may be taken by any person

aggrieved or by any officer, department, board, or bureau of the

municipality affected by any decision of the administrative officer.

Such appeal shall be taken within a reasonable time, as provided by

the rules of the board, by filing with the officer from whom the appeal

is taken and with the Board of Adjustment a notice of appeal specifying the grounds thereof. The officer from whom the appeal is

taken shall forthwith transmit to the board all the papers constituting the record upon which the action appealed from was taken.

An appeal stays all proceedings in furtherance of the action appealed from, unless the officer from whom the appeal is taken certifies

to the Board of Adjustment after the notice of appeal shall have

been filed with him that by reason of facts stated in the certificate a

stay would, in his opinion, cause imminent peril to life or property.

In such case proceedings shall not be stayed otherwise than by a re- straining order which may be granted by the Board of Adjustment

or by a court of record on application on notice to the officer from

whom the appeal is taken and on due cause shown.

The Board of Adjustment shall fix a reasonable time for the hearing of the appeal, give public notice thereof, as well as due notice to

the parties in interest, and decide the same within a reasonable time.

Upon the hearing any party may appear in person or by agent or by

attorney.

The Board of Adjustment shall have the following powers:

1. To hear and decide appeals where it is alleged there is error in

any order, requirement, decision, or determination made by an administrative official in the enforcement of this act or of any ordi- nance adopted pursuant thereto.

2. To hear and decide special exceptions to the terms of the ordinance upon which such board is required to pass under such ordi- nance.

3. To authorize upon appeal in specific cases such variance from

the terms of the ordinance as will not be contrary to the public interest, where, owing to special conditions, a literal enforcement of

the provisions of the ordinance will result in unnecessary hardship,

and so that the spirit of the ordinance shall be observed and substantial justice done.

In exercising the above-mentioned powers such board may, in

conformity with the provisions of this act, reverse or affirm, wholly

or partly, or may modify the order, requirement, decision, or determination appealed from and may make such order, requirement, de-
A STANDARD STATE ZONING ENABLING ACT. 11

cision, or determination as ought to be made, and to that end shall

have all the powers of the officer from whom the appeal is taken.

The concurring vote of four members of the board shall be neces- sary to reverse any order, requirement, decision, or determination

of any such administrative official, or to decide in favor of the applicant on any matter upon which it is required to pass under any

such ordinance, or to effect any variation in such ordinance.

Any person or persons, jointly or severally, aggrieved by any decision of the Board of Adjustment, or any taxpayer, or any officer,

department, board, or bureau of the municipality, may present to a court of record a petition, duly verified, setting forth that such decision is illegal, in whole or in part, specifying the grounds of the

illegality. Such petition shall be presented to the court within 30

days after the filing of the decision in the office of the board.

Upon the presentation of such petition the court may allow a writ

of certiorari directed to the Board of Adjustment to review such

decision of the Board of Adjustment and shall prescribe therein the

time within which a return thereto must be made and served upon

the relator's attorney, which shall not be less than 10 days and may

be extended by the court. The allowance of the writ shall not stay

proceedings upon the decision appealed from, but the court may,

on application, on notice to the board and on due cause shown,

grant a restraining order.

The Board of Adjustment shall not be required to return the

original papers acted upon by it, but it shall be sufficient to return

certified or sworn copies thereof or of such portions thereof as may

be called for by such writ. The return shall concisely set forth such

other facts as may be pertinent and material to show the grounds

of the decision appealed from and shall be verified.

If, upon the hearing, it shall appear to the court that testimony

is necessary for the proper disposition of the matter, it may take evidence or appoint a referee to take such evidence as it may direct and

report the same to the court with his findings of fact and conclusions of law, which shall constitute a part of the proceedings upon

which the determination of the court shall be made. The court may

reverse or affirm, wholly or partly, or may modify the decision

brought up for review.

Costs shall not be allowed against the board unless it shall appear

to the court that it acted with gross negligence, or in bad faith, or with malice in making the decision appealed from.

All issues in any proceeding under this section shall have prefer- ence over all other civil actions and proceedings.

Sec. 8. Remedies.46—In case any building or structure is erected,

constructed, reconstructed, altered, repaired, converted, or main-

- " Remedies " : This section is vital. Without it the local authorities, as a

rale, will be powerless to do more than inflict a fine or penalty for violation
12 U. S. DEPARTMENT OF COMMERCE.

tained, or any building, structure, or land is used in violation of

this act or of any ordinance or other regulation made under authority

conferred hereby, the proper local authorities of the municipality,

in addition to other remedies, may institute any appropriate action

or proceedings 46 to prevent such unlawful erection, construction,

reconstruction, alteration, repair, conversion, maintenance, or use,

to restrain, correct, or abate such violation, to prevent the occupancy

of said building, structure, or land, or to prevent any illegal act,

conduct, business, or use in or about such premises.

Sec. 9. Conflict With Other Laws. 47—Wherever the regulations

made under authority of this act require a greater width or size of

yards, courts, or other open spaces, or require a lower height of building or less number of stories, or require a greater percentage of lot

to be left unoccupied, or impose other higher standards than are required in any other statute or local ordinance or regulation, the

provisions of the regulations made under authority of this act shall

govern. Wherever the provisions of any other statute or local ordi- nance or regulation require a greater width or size of yards, courts, or other open spaces, or require a lower height of building or a less

number of stories, or require a greater percentage of lot to be left

unoccupied, or impose other higher standards than are required by

the regulations made under authority of this act, the provisions of

such statute or local ordinance or regulation shall govern.

of the zoning ordinance. It is obvious that a person desiring undue privileges

will be glad to pay a few hundred dollars in fines or penalties if thereby

he can obtain a privilege to build in a manner forbidden by law, or use his

building in an unlawful manner, when he may profit thereby to the extent

of many thousands of dollars. What is necessary is that the authorities

shall be able to stop promptly the construction of an unlawful building before

it is erected and restrain and prohibit an unlawful use.

48 " any appropriate action or proceedings

: Under the provisions of this

section the local authorities may use any or all of the following methods in trying to bring about compliance with the law : They may sue the responsible

person for a penalty in a civil suit ; they may arrest the offender and put him

in jail ; they may stop the work in the case of a new building, and prevent

its going on; they may prevent the occupancy of a building and keep it vacant until such time as the conditions complained of are remedied; they can evict the occupants of a building when the conditions are contrary to law, and prevent its reoccupancy until the conditions have been cured. All of

these things the local authorities should be given power to do if zoning laws

are to be effective.

4 ? "Conflict With Other Laws " : By this provision the community is always assured of the maintenance of the higher standard. Without a

provision of this kind the later enactment would probably govern. This

requirement is especially necessary in those States which now have or later

may enact housing laws, as housing laws also contain requirements as to height of dwellings, size of yards, and other open spaces, etc. o

DEPARTMENT OF COMMERCE,

WASHINGTON.

PUBLICATIONS IN RELATION TO HOUSING AND MUNICIPAL REGULATION.

[These publications may be obtained from the Superintendent of Documents, Govern- ment Printing Office, Washington, D. C, payments to be made by money order or New

York draft ; currency at sender's risk. Postage or foreign money not accepted.]

A Zoning Primer.

By the Advisory Committee on Zonirig: Edward M. Bassett, Irving B.

Hiett, John Ihlder, Morris Knowles, Nelson P. Lewis, J. Horace McFarland, Frederick Law Olmsted, and Lawrence Veiller. 12 pages. Government Printing Office, Washington. Price, 5 cents. How to Own Your Home.

By John M. Gries and James S. Taylor, with a foreword by Herbert

Hoover, viii+28 pages. Government Printing Office, Washington. Price,

5 cents. Recommended Minimum Requirements for Small Dwelling Construction.

By the Building Code Committee: Ira H. Woolson, chairman; Edwin H.

Brown, William K. Hatt, Rudolph P. Miller, J. A. Newlin, Ernest J. Russell, and Joseph R Worcester. 30 illustrations. 108 pages. Government Printing Office, Washington. Price, 15 cents. Recommended Minimum Requirements for Plumbing in Dwellings and Similar Buildings.

By the Subcommittee on Plumbing: George C. Whipple, chairman; Harry

Y. Carson, William C. Groeniger, Thomas F. Hanley, and A. E. Hansen.

(In preparation. To be printed by the Government Printing Office,

Washington.

)

Materials for the Household.

Government Printing Office, Washington. 254 pages. Price, 25 centa

MIMEOGRAPHED MATERIAL,

A list of zoned municipalities and references to State laws relating to zon- ing is kept by the Division of Building and Housing, Department of Commerce,

Washington, and copies may be obtained on application.