The law regards municipalities as “creatures of the state” and dictates that municipalities must look to the state constitution, their charter, or state laws for authorization to exercise powers. Therefore, a municipality has no powers whatsoever unless the state decides to give the municipality power. Municipalities include, in Indiana, townships, cities and counties.

A municipality may sue and be sued, like any person. In addition, municipalities may enter into contracts, buy and sell land and pass ordinances. Finally, and most obviously, a municipality may raise, borrow and spend money. These powers are simi-lar to those possessed by most adults. However, a municipality may not, for example, buy land for any purpose that it chooses. In engaging in any of the listed activities, a municipality must be pursuing a purpose allowed by the state.

Localities generally possess the ability to plan and zone. Planning and zoning falls within the broad scope of the “police power.” However, the source and scope of a locality’s power to plan and zone depends upon whether the state is a Dillon’s Rule jurisdiction or a Home Rule jurisdiction. Even though the law accepts the general proposition that a locality possesses the power to plan and zone, the law places limits on that power.

 

The Police Power

Most purposes allowed to a municipality fall within the broad definition of the “police power.” The term “police power” refers to ability to legislate to further the public health, safety and welfare of the jurisdiction. The United States Constitution dele-gated this power to the states in the Tenth Amendment: “all powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

Therefore, even powers within the broad scope of the police power must be delegated to the municipality prior to exercise of the power. A broad grant of the police power to a locality does not give a locality the power to enact a zoning ordinance. The power to zone must be specifically delegated. The states have dele-gated portions of this police power to local governments by state constitution, charter or enabling statute. The state grants charters to recognize the legal existence of the municipality; grant powers to the municipality; place limits on the powers of the municipality; and, set out the boundaries of the entity.

One may think of a charter as the organizing document or “birth certificate” of the entity. A municipality does not exist until a charter is issued recognizing it.

Dillon’s Rule

To deal with the issue of determining what powers a particular state had allocated to municipalities, several doctrines emerged. The United States began with the proposition that municipalities are creatures of the state, and must look to the state for all power. This doctrine was later stated as Dillon’s Rule. The name derives from its primary author, a judge in Iowa. The rule dates to 1865, and in its entirety, states:

• It is a general and undisputed proposition of law that a municipal corporation possesses and can exercise the following powers and no others: First, those granted in express words; second, those necessarily or fairly implied in or incident to the powers expressly granted; third, those essential to the declared objects and purposes of the corporation—not simply convenient, but indispensable. Any fair, reasonable doubt concerning the existence of the power is resolved by the courts against the corporation, and the power is denied.

This rule arose in response to widespread corruption at the local level at the end of the nineteenth century. Courts felt that state control of local government power was necessary to combat crime boss rule of cities and other ills that were threatening democratic governance.

Home Rule

The home rule movement, beginning with Missouri in 1875, prompted several states to adopt state constitutional amendments expanding the scope of municipal independence. The home rule doctrine allows a municipality to exercise any function, so long as it is not prohibited by the state legislation or in conflict with the state constitution or any state statute. Although the doctrine appears promising to those desirous of expanding local autonomy, one commentator characterized it as “… an uncertain privilege, for it depends entirely upon the whim of the legislature and may at any time be repealed or modified”. In addition, the grants of home rule authority vary widely. Some grants are very broad, while others are somewhat restricted.

A 1978 study showed that 41 states had granted home rule authority to cities, while only 27 states had granted home rule jurisdiction to counties. Some states, including Indiana, have adopted legislative home rule, whereby local governments may exercise all powers the state legislature is capable of delegating to them even though the legislature has not delegated the power. The legislature may take certain powers from localities or limit local powers under legislative home rule. For example, if the Indiana legislature sets forth a certain manner in which a power may be exercised by a locality, the locality must follow the legislature’s instructions.

On the other hand, constitutional home rule refers to a broad grant of home rule power contained in the state constitution. In contrast to legislative home rule, the legislature cannot change or limit a local government’s power under constitutional home rule. The courts determine the scope of the constitutional grant of authority.

Home Rule in Indiana

Indiana law provides that “the policy of the state is to grant units all the powers they need for the effective operation of government as to local affairs.” Further, “the rule of law that any doubt as to the existence of a power of a unit shall be resolved against its existence is abrogated.” “Any doubt as the existence of a power of a unit shall be resolved in the favor of its existence.” The Indiana Code explicitly rejects Dillon’s Rule.

A unit in Indiana may exercise any power to the extent that the power is not expressly denied by the Indiana Constitution, Indiana statute nor expressly granted to another entity. A township may not exercise any power where a unit in which the township is located exercises that same power.

Indiana law provides that a unit must utilize the constitutionally or statutorily prescribed method of exercising any power, if the constitution or a statute provides a pre-scribed method. If no constitutionally or statutorily prescribed method exists, the unit must adopt an ordinance (county or municipality) or resolution (township) specifying the particular method of exercising the power or comply with any Indiana law permitting a specified manner for exercising the power.

Finally, the Indiana Code lists certain powers that units do not possess. These prohibited powers include unauthorized taxation and imposition of duties on other units.

The Comprehensive Plan

Indiana law requires each municipality to adopt a comprehensive plan. A comprehensive plan must contain:

• A statement of objectives for the future development of the jurisdiction;

• A statement of policy for the land use development of the jurisdiction; and,

• A statement of policy for the development of public ways, public places, public lands, public structures, and public utilities.

Comprehensive plans are not laws. Therefore, courts generally do not entertain legal actions attacking comprehensive plans, unless the attack is directed at a failure to com-ply with the requirements set forth by the legislature. Comprehensive plans must be implemented by local ordinances. The most common implementation tool for comprehensive plans is the zoning ordinance.

 

Zoning

Indiana law does not require localities to adopt zoning ordinances but allows the adoption at the option of the locality. If adopted, the zoning ordinance must contain the elements set out by the legislature in Ind. Code Section 36-7-4-600, et. seq.

Zoning is the “division of a municipality by legislative regulation into districts and the prescriptions and application in each district of regulations having to do with  structural and architectural designs of buildings and of regulations pre-scribing us to which buildings within designated districts may be put.” New York City enacted the first com-prehensive zoning ordinance in the United States in 1916. That ordinance classified uses and created zones for all uses. The zones were mapped. The provisions included height and area (setbacks, etc.) controls.

In 1926, the United States Supreme Court upheld the constitutionality of traditional comprehensive zoning ordinances in Village of Euclid v. Ambler Reality Co., 272

U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303 (1926). Land use professionals refer to “traditional” zoning as “Euclidean” zoning. Euclidean zoning encompasses division of the municipality into geometric patterns of “use districts.” In other words, Euclidean zoning divides the area into sections. The ordinance restricts use of land within each section so that each section contains a single or narrow range of uses. For example, single-family residential zones contain primarily single-family houses. Farmland should predominate in agricultural zones. Note that all land in the jurisdiction zoned, for example, single-family residential need not be, and usually is not, contiguous.

Historically, zoning seeks to pre-vent one landowner from harming his neighbor by engaging in an incompatible use. Zoning is done by dividing up a city into uses zones in which harmful uses are excluded. In other words, by segregating uses zoning attempts to separate incompatible uses.

But zoning serves purposes beyond preventing harm. Modern zoning often regulates uses to achieve public benefit or to maximize property values in a locality. Unfortunately, zoning may also be used to exclude low- to moderate-income people who cannot afford the housing permitted in the locality. This exclusion results, for example, from large minimum lot sizes or large minimum square footage requirements in residential districts. These requirements drive up the cost of housing.

Zoning laws embody the assumptions that wholesome housing must be protected from harmful neighbors. Thus, commerce and industry are excluded from residential zones, as they are deemed harmful to housing. Even within residential zones, there is a hierarchy of desirable uses. The law regards the single-family home as the highest use. Creation of districts containing only single-family homes seeks to protect this highest form of housing from intrusion by apartments, commercial development, or any other potentially interfering use.

Categories of Uses under Zoning Ordinances

Zoning ordinances allow some uses in each district, prohibit others and allow some uses only by special exception. This section examines and explains the various categories of land uses under each zoning ordinance.

“Of Right” Uses

Land use regulations specify for each zone those activities that are permit-ted as a manner “of right” or “permit-ted uses.” If listed as an “permitted use,” the landowner may engage in this use without question.

Prohibited Uses

Generally, any use not listed as “per-mitted” is prohibited. An ordinance may specifically prohibit a particular use in a district to avoid a finding that this use may be similar to a per-mitted use in the district. For example, if not specifically prohibited, a court could find that a mobile home is a “single-family dwelling” allowable in a single-family residential district.

In Indiana, a board of zoning appeals may approve a “variance.” A variance allows a use that is prohibited by the zoning ordinance. The board may impose reasonable conditions as a part of its approval. Indi-ana law prohibits a board of zoning appeals from approving a variance unless the board determines in writing that:

• the approval will not be injurious to the public health, safety, morals, and general welfare of the community;

• the use and value of the area adjacent to the property included in the variance will not be affected in a substantially adverse manner;

• the need for the variance arises from some condition peculiar to the property involved;

• the strict application of the terms of the zoning ordinance will constitute an unnecessary hardship if applied to the property for which the variance is sought; and

• the approval does not interfere substantially with the comprehensive plan of the locality.

Special Exceptions

To conduct certain uses, a landowner may have to apply for and receive a “special exception.” A special exception is a permit that allows a particular use subject to listed conditions.(Special exceptions are also referred to as special uses or conditional uses that require a permit.)

The use of the word “exception” is misleading. Special exception uses are allowed in that particular district, but not in all locations within the district and not without conditions or qualifications. For example, if listed as a special exception in the agricultural zone, an intensive livestock operation may be appropriate in those portions of an agricultural zone which are thinly populated and contain appropriate soils, topography and tree buffers. However, in other areas of the zone that are adjacent to dense residential settlements or where the intensive livestock operation may threaten groundwater, the operation is not appropriate.

The author compares permitted uses in a zoning ordinance to the purchase of clothing “off the rack.” Perhaps the use does not precisely ”fit” each area within the zone. How-ever, the governing body feels that the fit is close enough to warrant allowing the use throughout the zone.

In contrast, special exceptions are analogous to tailored clothing. The governing body of the jurisdiction tailors the conditions and restrictions of the special exception to fit the particular piece of property on which the use will be conducted.

Amendment of the Zoning Ordinance

Once a zoning ordinance has been adopted and land has been zoned, problems may arise with proposed amendments to change the zoning application to specific parcels or to grant relief from its requirements to certain lots. Amendments to a zoning ordinance are commonly called

“rezonings.” Rezonings that apply to specific parcels or certain lots should be distinguished from comprehensive rezoning. Comprehensive rezoning involves study of the entire municipality and a reworking of the entire zoning ordinance. This section details the legal issues that arise when localities rezone all or a portion of the locality.

Rezonings Generally

Like the adoption of the original zoning ordinance, the amendment of a zoning ordinance is a legislative mat-ter. As a legislative matter, the rezoning decision is left to the discretion of the local legislative body. The courts will disturb the rezoning decision of the locality only when it is arbitrary or capricious. Arbitrary and capricious decisions involve willful and unreasonable action without consideration and in disregard of the facts or circumstances of the case.

Courts examine individual or specific rezonings more closely than comprehensive rezonings because the chance for arbitrariness is heightened when only one or a few land parcels are involved.

Spot Zoning

“Spot zoning” is perhaps the most used and least understood term in zoning parlance. Spot zoning the singling out of one piece of property for a different treatment from that accorded to similar surrounding land which is indistinguishable from it in character, all for the economic bene-fit of the owner of the lot or area so singled out. In Indiana, spot zoning is not illegal per se if the zoning action bears a rational relation to the public health, safety, morals, convenience or general welfare. The key distinction is that spot zoning is not pursuant to the police power when it fails to further the public interest. Instead, spot zoning provides private benefit, perhaps to the detriment of the public.

 

Non-conforming Uses

Most of us have heard the term “grandfathered use” used in connection with zoning. “Grand-fathered use” is the everyday term commonly synonymous with “non-conforming use.” A non-conforming use is a use of the premises that legally existed prior to the enactment of a zoning ordinance or proper amendment of the zoning ordinance, and which is permitted to continue subsequent to the enactment of the ordinance despite the fact that it does not conform to the new zoning requirements. However, since non-conforming uses deviate from the desired uses under the zoning ordinance, the law frowns upon them. Typically, a zoning ordinance will allow continuance of a non-conforming use, but will prohibit extension, expansion, or change unless to a conforming use. In addition, most ordinances provide that if a non-conforming use is abandoned for two years or more, the use may not be reinstated. Some localities “amortize” the use, which requires a property owner to discontinue the nonconforming use after a certain period of time.

 

Agricultural Nonconforming Use

Indiana law now allows for an “agricultural nonconforming use.” This law that has gathered much attention, was passed in1998 and amended in1999. “Agricultural use” for nonconforming purposes is broadly defined. The essences of this new law is that zoning changes or a comprehensive plan may not terminate or restrict an agricultural use if it was consistent with or a permitted use under the prior zoning ordinances, and was in place three of the five years before a recent change in zoning.

Conclusion

Planning and zoning by local governments carry out the police power function of protecting the general health, safety and welfare of the locality’s citizens. The planning function is reflected in the comprehensive plan, which is implemented most commonly through zoning ordinances.

Zoning ordinances mainly attempt to prevent incompatible uses from locating next to one another by separating uses in different zoning districts. Zoning itself is fairly straightforward. However, the law allows variances and some uses are permitted only under certain circum-stances. In addition, uses that were permissible prior to the zoning ordinance or amendment are subject to restrictions. To understand the law behind planning and zoning, one must be familiar with the legal terminology.

References

Contact the editor if you wish to have the references and cites to references and statutes.