BH5

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

[REVISED EDITION, 1926

J

WASHINGTON

government PRINTING OFFICE

1926

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

CHARLES B. BALL

Sanitary Engineer. EDWARD M. BASSETT

Lawyer. ALFRED BETTMAN

Lawyer. IRVING B. HIETT

Realtor. JOHN IHLDER

Housing Consultant. MORRIS KNOWLES

Consulting Engineer. NELSON P. LEWIS * Municipal Engineer.

j. HORACE McFarland

Master Printer and Civic Investigator. FREDERICK LAW OLMSTED - - - - Landscape Architect. LAWRENCE VEILLER

Housing Expert.

* Deceased.

Secretary-Treasurer, City Planning Division, American Society of Civil Engineers. Counsel, Zoning Committee of New York.

Director, National Conference on City Planning. Ex-President, National Association of Real Estate Boards. Manager, Civic Development Department of the Chamber of Commerce of the United States. From the Chamber of Commerce of the United

States; Chairman, City Planning Division, American Society of Civil Engineers. From the National Conference on City Planning and National Municipal League; Past President, American City Planning Institute. Ex-President. The American Civic Association. Ex-President, The American Society of Landscape Architects; Ex-President, American

City Planning Institute. Secretary and Director, The National Housing

Association. JOHN M. CRIES

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

(Revised Edition, 1926] PRICE 5 CENTS

SOLD ONLY BY TH]® SLHPERINTSNDENX OP DOCUMENTS GOVERNMENT PRINTING OFFICE, WASHINGTON, D. C. WASHINGTON

GOVERNMENT PRINTING OFFICE

1926
CONTENTS

Page

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

Sec. 1. Grant of power 4

Sec. 2. Districts 6

Sec. 3. Purposes in view 6

Sec. 4. Method of procedure

Sec. 5. Changes

Sec. 6. Zoning commission

S'ec. 7. Board of adjustment

Sec. 8. Enforcement and remedies 12

Sec. 9. Conflict with other laws 13 n

CO

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FOREWORD

By Herbert 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 four 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 practiced and

found successful in cities and towns throughout the country. Prac-

^ By 1925 the following 19 States had used the standard act wholly or in part

in their laws: Arizona, Colorado, Delaware, Florida, Georgia, Idaho, Illinois, Iowa, Nevada, New Hampshire, New Jersey, North Carolina, North Dakota,

Oklahoma, Pennsylvannia, Rhode Island, South Carolina, Utah, and Wyoming.

^ On January 1, 1926, there were at least 425 zoned municipalities, comprising more than half the urban population of the country.

Ill

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IV FOREWORD

tical 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.
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.—A general State

enabling act is always advisable, and while the power to zone may,

in some States, be derived from constitutional as distinguished from

statutory home rule, still it is seldom that the home-rule powers

will cover all the necessary provisions for successful zoning.

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 was prepared

with a full knowledge of the decisions of the courts in every case

in which zoning acts have been under review, and has been carefully

checked with reference to subsequent decisions. 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 new 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

accordance with the local legislative custom.

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

the act are so commonly understood that definitions are unneces1

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2 U. S. DEPARTMENT OF COMMERCE

sary. 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.

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 section or provision shall not affect the rest of the act. This is so v^ell accepted

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

be added without danger.

9. No decla,ration that act is rwt 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 has

made a careful study of the use, height, and area regulations embodied in 16 typical zoning ordinances, together with notes on the

trend of certain newer ordinances. Single copies of this bulletin are available by application to the division of building and housing,

Department of Commerce, Washington, D. C.

13. Interim ordinances.—After the local legislative authorities

have the power to zone, they are nearly ahvays 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, al- though 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
I A STANDARD STATE ZONING ENABLING ACT 3

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

l| general, not sufficiently adapted to the particular need of each street, and therefore likely to be arbitrary in many cases. In such case,

I 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-

!j ing zone.” As such, a district has no stability, and as the police

|i! power may be differently applied according to the acts of property

I 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

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

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

I the ordinance should always be phrased so as to prohibit the nonji conforming use, unless the desired majority files written consents with the officials. In other words, a provision which conditions the

I 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.

14. Note to revised edition^ 1926.—A standard State zoning ena- bling 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 the

first printed edition in May, 1924. In this second printed edition note 15a has been added to cover the needs of cases where it is found

desirable to control the development of areas adjacent to the city

limits; and section 8, dealing with enforcement and remedies, has

been revised in order to give the municipality more effective means

of obtaining conformance to the zoning ordinance.

The circulation of the standard act has not been confined to those

directly interested in drafting State zoning legislation. Calls for

it have been received from persons in all sections of the country

who have desired to use it on account of its general bearing on the

legal and social aspects of zoning. More than 55,000 copies of the

first printed edition have been sold by the Superintendent of Documents.

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A STANDARD STATE ZONING ENABLING ACT

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

health/ safety, morals, or^ the general welfare® of the community,

the legislative body^ of cities and incorporated villages® is hereby

empowered to regulate and restrict® the height, number of stories,^

^ “ 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.

2 u Qy. »

. j|. gjiould 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 satisfaction of the court that all four of the purposes mentioned were in- volved 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, ifworporated v^illages ” : 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 vil- lages ” ; 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.”

^ “ number of stories ” : It is thought wise to add this to the term “ height,” ag 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 ® and other structures,® the percentage of lot that may be occupied, the size of yards, courts, and other open

spaces,^^ the density of population,^^ and the location and use^® of

buildings, structures, and land for trade, industry, residence, or other purposes.^^’

• “ 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 sutSciently all-inclusive to cover all contingencies.

® “ other structures ” : This phrase would include other structures which

possibly might not be defined 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. ^ “ 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. “ “ 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

describes 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. “ “ use ” : This term is broad enough to include all meanings desired. 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 beginning 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.” ““ Some communities find it desirable to control the development of areas adjacent to the city’s limits—which, in many cases, are ultimately to become a

part of that city. Where it is desired to control those “ fringes of cities,” the

legislature may grant such power to any community. Where this pov/er is desired, strike out the period after the word “ purposes ” at the end of section 1 and add the following : “ within the boundaries of such city or village ; and, in the case of cities having a population of 25,000 or over, also within that non- municipal territory iipmediately adjacent and contiguous to the boundaries of such city and extending for the radial distance of 5 miles beyond such boundaries in all directions.” Caution should be given, however, that this effort 4359°—26 2

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6 U. S. DEPARTMENT OF COMMERCE

Sec. 2. Districts.—For any or all of said purposes the local legislative body may divide the municipality 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, or use of buildings, structures, or land. All such regulations shall

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

other districts. Sec. 3. Purposes in view.^^—Such regulations shall be made in

accordance with a comprehensive plan and designed 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 pubby one community to control the development of some other community will often give rise to political and practical difficulties. It is for this reason that

this provision is not included in the text of the act but appended as a note, to be used by those who desire it. This question will ultimately have to be dealt

with, however, in most cases, by a process of regional planning.

“ municipality ” : This term is sufficiently broad to include cities, towns,

villages, boroughs, or whatever governmental unit may be involved. ” “ shape ” : This permits districts of irregular outline, something that is quite necessary.

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 Miildings 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.

“ 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 contains 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. ^ “ with a comprehensive plan ” : This will prevent haphazard or piecemeal zoning. No zoning should be done without such a comprehensive study.

“ and designed ” : This is the statement of direction given by the legis- lature 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.
A STANDARD STATE ZONING ENABLING ACT 7

lie 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,^^ and with a view to con- serving the value of buildings and encouraging the most appropriate use of land throughout such municipality.

Sec. 4. Method or procedure.

The legislative body of such

municipality shall provide for the manner 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 in relation thereto, at which parties in interest and citi- zens^® shall have an opportunity to be heard. At least 15 days’

notice 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.®®—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,®^

“ peculiar suitaMUty for particular uses ” : This is a reassurance to prop- erty interests that zoning is to be done in a sane and practical way.

“ “ 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.

“ 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.

^ “ 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.

“ 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.

“ 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. ^ “ 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

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8 U. S. DEPARTMENT OF COMMERCE

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

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

adjacent in the rear thereof extending feet therefrom, or of

those directly opposite thereto extending feet 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

members 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,^^ such legislative body shall appoint a

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

value. For this reason the practice has been rather generally adopted of per- mitting ordinary routine changes to he 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. “ “ 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 diflaculties in practice,

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.

“ 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.

“ 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. ^ “ 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.

“ directly opposite ” ; The same considerations apply to this phrase as to

“ immediately adjacent in the rear thereof.” ^ “ all the members ” : It is important to use this expression, otherwise

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

“ In order to avail itself of the powers conferred l)y 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.
A STANDARD STATE ZONING ENABLING ACT 9

commission,®® to be known as the zoning cotnmission, to recommend

the boundaries of the various original districts and appropriate

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 it has received^ the final report

of such commission. Where a city plan commissions^ already exists, it may be appointed as the zoning commission.^®

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.

“ shall appoint a commission ” : Even though a committee of the local legis- lative 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 numerous conferences

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

should be adopted until such work has been done.

“ shall not hold its puMic 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. ^ “ 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. ^ “ may he 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.

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.

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10 U. S. DEPARTMENT OF COMMERCE

The board of adjustment shall consist of five members, each to be appointed for a term of three years 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

an^^ 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

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 ap- pealed 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 ad-

** “ each to te appomted for three years ” : This can be altered to provide for overlapping terms, if desired.
A STANDARD STATE ZONING ENABLING ACT 11

ministrative 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 ordi- nance upon which such board is required to pass under such

ordinance.

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, decision, 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 appli- cant 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.

Q
12 U. S. DEPARTMENT OF COMMERCE

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. Enforcement and remedies.^®

The local legislative body

may provide by ordinance for the enforcement of this act and of any

ordinance or regulation made thereunder. A violation of this act or of such ordinance or regulation is hereby declared to be a misdemeanor, and such local legislative body may provide for the punishment thereof by fine or imprisonment or both. It is also empowered to provide civil penalties for such violation.

In case any building or structure is erected, constructed, reconstructed, altered, repaired, converted, or maintained, 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^® to prevent such unlawful erection, construction, reconstruction, altera45 “ Enforcement and Remedies ” : This section is vital. Without it the local authorities, as a rule, will be powerless to do more than inflict a fine or penalty for violation 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. “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 comi>lained 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.
A STANDARD STATE ZONING ENABLING ACT 13

tion, 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.''

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.

" “ 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

c


DEFARTMENT OF COMMERCE

WASHINGTON

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The preparation of zoning ordinances: a guide for mi

Bassett, Edward M.;Bettman, Alfred;Hiett, Irving B.;]

TH1.U4 no. 16 1931

NIST Research Library

[ 18] preparationofzonlGbass