I live in a semi-rural area that has requirements of 200 feet of frontage and 100 foot setbacks. Most of the lots are least 2.5 acres. Nevertheless, there is a 30 foot height restriction on buildings. This seems kind of crazy to me. I thought that zoning regulations to "serve a public purpose". Normally a height restriction is meant to prevent shadowing in urban environments. That is totally irrelevant to my community. Also, as far as trees are concerned, most of the trees in the area are 100-feet high, so they tower over the houses. So, there is zero risk that a house would rise above the trees if the height restriction was eliminated.

What is the legal precedent here? Can I just sue the town and get it voided?

Note that I am not interested in just building a particular building here: I want to totally overturn the restriction for everybody. So, in that case I prepared to file a class action with multiple residents as the plaintiffs if need be.

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    "serve a public purpose" Are you quoting from a particular source? Also, what state? Local zoning laws derive from the authority of the state, and I don't think any federal issues are likely to be in play. Commented Oct 2, 2021 at 3:34
  • @NateEldredge Yes, it is federal, because when zoning laws are challenged as being "arbitrary and capricious" state law is never cited. Instead it is tried as an unconstitutional taking violating the 5th Ammendment.
    – Cicero
    Commented Oct 2, 2021 at 3:42
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    If you want specific laws and precedents, please indicate a specific state. Zoning ordinances are authorized by state laws and are challenged in state courts, and results will be somewhat different in different states. Commented Oct 2, 2021 at 23:29
  • @DavidSiegel I am really more interested federal 5th ammendment precedents. The state doesn't matter. I am not trying to get an exact answer here, just a general feel for the tone of these lawsuits.
    – Cicero
    Commented Oct 3, 2021 at 0:01
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    @Cicero I don't see any fifth amendment issue here, although I would need to check before making that an answer. I don't see this as a taking or partial taking, and that is the only way this could be a federal issue. If a general ordinance was properly passed there was due process, unless there was no rational basis for the ordinance, which is quite unlikely. Commented Oct 3, 2021 at 0:07

2 Answers 2


Zoning laws can be used to preserve the character of an area

Presumably, the semi-rural area you live in is not known for its distinctive high-rise skyline. A height limitation can be a reasonable and sensible way of preventing the construction of a building that doesn’t fit with the overall character. A typical 2 storey dwelling can easily fit under a 30 foot limit, a 3 storey can if you are clever with the design - are there many 4+ storey homes in your area?

In addition, most zoning ordinances have procedures to allow the applicant to request and have approved deviations for the rules. So, if you wanted to construct a 33 foot high house that might be OK, a 66 foot one not so much.

I can’t see any basis for calling the law arbitrary or capricious. The fact is that high-rise buildings are out of character for acreage living, so it’s not arbitrary. And it has been developed with thought as to what it will achieve so it’s not capricious.

Whether a particular decision on an application for an exemption is arbitrary or capricious will depend on the content of the decision.

  • This doesn't address the legal issues. I want to know the legal precedents to gauge whether a lawsuit would have a chance at success.
    – Cicero
    Commented Oct 2, 2021 at 21:53

Height of buildings has been regulated in some semi-rural areas for the purpose of halting the spread of urbanization (as Dale suggests). For a concrete example, Orange County adopted some such regs, which included height of buildings... in 1935. The height of buildings has been part of the 1926 Standard State Zone Enabling Act (SSZEA) which served as template for many other laws that authorize regs on the height of buildings.

"Arbitrary and capricious" (which you suggested in comments might be a challenge to these) is actually a fairly easy threshold/test to meet, despite what its name might suggest. "We adopted these regs to stop the spread of urbanization" would almost certainly pass that threshold. Comparing the height of buildings with that of trees is a non-sequitur with respect to "arbitrary and capricious"; even arguing that "we want our trees to look taller so we limit the height of buildings well below that of trees" is something that would almost certainly pass the "arbitrary and capricious" test.

You might have more luck with a substantive due process test, whether (1) law & regulation "advances a legitimate governmental interest" and (2) it is "reasonable means to achieve that goal". But...

Most of the lawsuits regarding building/zoning regs have attacked interpretations of vaguer wordings like "harmonious" (with nearby architecture) on grounds of vagueness, when generally applied by the regulating bodies as "I know it when I see it". I haven't seen mention or discussion of height regulations being successfully attacked in their basic function. However, there have been some lawsuits based on the granting of special exemptions from general height regs though.

There is a height-related case predating zoning regs as such, namely Williams v. Paker 188 US 491 (from 1903) in which post hoc limits on the height of buildings was essentially judged constitutional ("we are of opinion that the statute in question cannot be adjudged in conflict with the federal Constitution"), even if it meant partially demolishing a building, as long as compensation was provided... sometime thereafter.

I think this might vary by state (constitution), but in New Hampshire at least, rational basis review is generally used for zoning regulations.

In so holding, the [NH Supreme] Court overruled two earlier cases to the extent that they don’t comply with the newly enunciated rational basis test: Metzger v. Town of Brentwood, 117 N.H. 497 (1977), which held that requiring 200 feet of frontage was unconstitutional where 123 feet “provided ready access,” and Powers v. Town of Hampton, 125 N.H. 273 (1984), which held that requiring a 24-foot wide fire lane was unconstitutional where 15 feet was sufficient. These cases factored a least-restrictive-means analysis into the rational basis test, which the Court has now ruled inappropriate.

I don't know of a (more recent) federal case involving zoning regs and some physical measurements, but in (1974) Village of Belle Terre v. Boraas a similar standard was upheld (7-2) at least on restricting dwellings to “one family”:

An ordinance restricting land use to “one-family” dwellings did not involve a procedural disparity, did not deprive any group of a fundamental right, and is rationally related to a permissible government objective. Justice William O. Douglas delivered the opinion of the 7-2 majority. The [US Supreme] Court held that the Village of Belle Terre’s ordinance restricting land use to one-family dwellings did not violate the Equal Protection Clause of the Fourteenth Amendment because the ordinance was not arbitrary, did not unreasonably apply to some individuals and not others, and was reasonably related to a rational state objective. The Court also held that the ordinance did not violate the Due Process Clause because it did not deny anyone a fundamental right such as the rights to travel, association, and privacy.

The neighbor nuisance argument on height (that you've also mentioned) mostly applies in areas without explicit (height) regs, i.e. it has been sometimes used as an ad-hoc substitute for lack of explicit height regs.

In summary, I think it will be an uphill fight to show that (uniform) height restrictions are unconstitutional, even in a rural area.

  • Well, as I said in my post, I don't see how a height regulation in my town serves a legitimate public purpose, so maybe that is 14th ammendment, not 5th ammendment. There is no threat of "urbanization" in my town. As I said, we have 200 foot frontage requirements and 100+ feet of setback required already. The town has only 700 people in it--not exactly an "urban" area. Note that I updated the question to make it clear I want to overturn the whole restriction, not just get a building built, so maybe a class action lawsuit is the way to go.
    – Cicero
    Commented Oct 4, 2021 at 4:36
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    @Cicero: if you count on mobilizing the public, it may be easier to have the regs changed by political action than in courts. Something being attacked in a class action (as opposed to a single plaintiff action) has no bearing on constitutionality conclusions. Commented Oct 4, 2021 at 5:13
  • Trying to get it voted might be difficult. Most residents are NIMBYs so they would oppose changes to zoning. In fact, a lot of them live in a bizarre fantasy world where the town goes back to being a farming village with only 100 people in it.
    – Cicero
    Commented Oct 4, 2021 at 5:22

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