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Jeff Gordon Header

How you do something is just as important as what you do. As a planning and zoning commissioner, I heed these words of wisdom. The courts will otherwise uphold a planning and zoning commission’s decision if the zoning regulations as they exist at the time of the decision were followed fully, the process was fair and objective, and no laws were violated. This is why planning and zoning commissioners should take care and time in reaching their decisions, so as to avoid trouble. 

A pitfall to avoid is spot zoning, which is illegal. Two often cited court descriptions of spot zoning are “a single lot or area is granted privileges which are not granted or extended to other land in the vicinity, in the same use district” and “where a zoning change is designed solely for the economic benefit of the owner of the property receiving special treatment and is not in accordance with a well considered plan for the public welfare”. 

What spot zoning creates is a special land use benefit for an individual or business. In and of itself, this is not illegal if an individual property owner is the only person who has the benefit of the unique nature of his/her land so long as such use is otherwise allowed in the zoning district. However, the problem arises when a preferential benefit is granted in a manner that is incompatible with the land use activities allowed in the surrounding zoning district, that is not allowed for others to do in the same zone, and that is without any clear public benefit. 

How spot zoning occurs is when there is an intentional change in the zoning regulations and map that affects usually a small parcel of land and this rezoning is not consistent with the comprehensive land use planning used to promote a community’s general welfare, safety and public health. It creates a disconnect between the plans a community has for how land is to be used in the long-term and the decisions made for what the land actually gets used. This consistency or inconsistency with a municipality’s master plan is important and looked at by the courts. 

Here is an example: a property owner asks to build a factory in the middle of a residential neighborhood. The regulations for residential zoning districts do not allow industry; they are allowed in industrial zones elsewhere in town. The town’s master planning document and overall method of zoning do not mix non-residential activities with residential uses so as to preserve the character of its neighborhoods (although schools, religious buildings, parks, and recreation fields are allowed). Nevertheless, this particular application gets approved. The regulations are not changed to allow for industry throughout the entirety of the residential districts. The town’s long-range planning goals are not rewritten to state acceptance of industry in residential neighborhoods. Instead, the rules are changed for just this specific parcel of land, favoring this one landowner. There is no benefit to the surrounding landowners – it may actually be detrimental to them. All of the other landowners in that same zoning district do not get such preferential treatment. The fundamental unfairness of what is done and how it is done is obvious. 

But, reality is not always “black and white” – there are “gray areas that present challenges. Would it be spot zoning if in the above example a convenience store were proposed on a corner lot in the residential district and the nearest such store was many miles away? If the intent of approving this application was to provide a public benefit so people would have reasonable access to basic necessities, then spot zoning may not have occurred. Would it be spot zoning if over time, the town actively favored having a mix of various land uses in its zoning districts (such as small stores in residential neighborhoods), moving away from the segregation of such potentially compatible activities, but it had not yet updated its master planning document to reflect this? If the actions of the town were to promote community benefit and the town has demonstrated prior use of such an overall method of zoning, then spot zoning may not have occurred. This is where perspective and public opinion come into play. 

The courts will look at these various situations to understand what was the purpose of such zoning decisions and to determine if a planning and zoning commission’s actions were lawful, non-discriminatory, and consistent with the community’s zoning regulations and long-range land use goals and methods. 

Can spot zoning be prevented? Yes. First, good planning begets good zoning. Your town makes long-range plans regarding growth, development, public needs, and preservation/conservation. Zoning regulations are the instruments used to achieve these goals. Second, decisions should be made that are consistent with these long-range plans and that follow the regulations. Third, decisions should be made using established fair processes. Fourth, each land request is different, so consideration needs to be taken of individual property rights, the importance of the proposed land use, its compatibility with neighboring properties, and any public benefits of the proposed use. Fifth, always use common sense. And sixth, take the time to review things carefully – do not work in haste. 

Spot zoning is often confused with the granting of a special permit. Sometimes, a special permit approval is called spot zoning when someone does not agree with the special permit decision that was made. Special permits and spot zoning are not the same and can be quite different if the special permit process is handled properly. My next article will delve into special zoning permits used by our towns.

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