In one town near me there is a town that has zoning restrictions like, if an addition is over so-and-so many square feet it must have planning board approval.

This would seem to be capricious interference with property rights. If the house is on a multi-acre lot and is not visible from any public roads, what business is it of the town, how big an addition is? It seems like interfering with building for the sake of being nosy and interfering. Since it costs money and time to seek such approvals, it is a real cost being imposed.

Is this kind of rule illegal, can I contest it in court, or do towns have the right to make arbitrary or pointless zoning restrictions at their whim?


Is this kind of rule illegal, can I contest it in court, or do towns have the right to make arbitrary or pointless zoning restrictions at their whim?

This kind of rule is completely legal. You could sue, but you would almost certainly lose. Generally speaking, towns have the right to make arbitrary or pointless zoning restrictions at their whim. This general rule is subject only to some very narrow exceptions:

  1. They can't totally ban any particular kind of first amendment activity, although they can regulate time, place and manner (e.g. they can't completely ban topless establishments or churches or political gathering places, although they can say where these establishments can be located).

  2. The regulations can't discriminate on their face on the basis of race or national origin, even though they can have a discriminatory effect that isn't the principal purpose of the regulations.

  3. The town's regulations can't leave property with no economically viable use whatsoever without paying compensation to the owner.

  4. The town must be able to articulate some basis for the zoning restriction, but pretty much any explanation whatsoever will do (which is to say that this kind of law is subject to the rational basis test).

  5. There are meaningful limitations arising under federal law regarding the extent to which manufactured housing can be treated differently than conventionally build housing under the regulations. In practice, it is easy to adopt neutral regulations that make manufactured housing (i.e. trailer parks) uneconomic.

  6. There are federal regulations that prohibit zoning laws from banning satellite dishes.

  7. Zoning laws can't be changed retroactively. In other words, once something is built that conforms to current zoning laws, it is "grandfathered" notwithstanding future changes in the zoning laws, until the building at the site is destroyed or substantially renovated, except in the case of some very extreme and urgent health and safety threats.

Substantive state regulation of zoning laws is pretty much non-existent, although state law may set forth a particular process that must be followed or require the regulations to fit a general template applicable in the state. Usually, however, states don't limit the authority of states to regulate land use at all. Where there is state regulation, this usually prevents regulation of something specific (e.g. political advertisements, a "right to farm" provision, prohibiting bans on xeriscaping, etc.).

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  • Your answer seems kind of contradictory. You first say they can enact anything, but then later say that zoning ordinances are subject to a "rational basis" test. – Cicero Jun 7 '17 at 10:36
  • @Cicero The discrepancy is resolved by the fact that the "rational basis" test is virtually meaningless. A basis such as "we think that this would make our city more pretty" for example, without more, would satisfy the test even if there is no objective way to measure if that was true and there is good reason to suspect an ulterior motive. – ohwilleke Jun 7 '17 at 22:08
  • "pretty" is not a factor--I am talking about a property addition that cannot be seen from a public way. – Cicero Jun 7 '17 at 22:09
  • @Cicero The "pretty" justification I suggest would would probably pass muster legally even if the property cannot be seen from a public way. The City can decide that it wants homes to be pretty for private individuals who might think about buying homes in the City even if the public can't see it. – ohwilleke Jun 7 '17 at 22:10
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    @Cicero Sorry. Not true. Only cases that are based on a legal rather than an equitable theory are resolved by juries and even then some matters are reserved for the judge. Even in MA. – ohwilleke Jun 8 '17 at 17:36

Whether or not a given restriction is constitutional depends on the nature of the restriction and particulars of what it's supposed to accomplish. For example, if the city via its mayor has personal animus towards you and blocks your property use, that won't pass constitutional muster. Zoning regulations are generally legal (Euclid, Ohio v. Ambler Realty Co, 272 U.S. 365. Your property rights are legally hemmed in by the governments interest in doing certain things, which might be for example "maintaining the residential cuteness of the town"; they could require you to paint your house white with black trim around the windows; they can prevent you from building a house more than 1 story tall, if doing so conflicts with their vision of what the town should look like.

You have a constitutional right to have your property, and that right is strongly protected so anything that would take your property away from you would be subject to strict scrutiny. Strict scrutiny is not required to restrict how you use your property, so the rationale for the restriction would have to be egregiously disconnected from the function of government. As the court held in Euclid, "While the meaning of constitutional guaranties never varies, the scope of their application must expand or contract to meet the new and different conditions which are constantly coming within the field of their operation".

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