Spot zoning challenges have caused countless headaches to municipalities and developers over the years, resulting in development delays, increased costs, uncertainties, and legal fees and expenses. And since spot zoning challenges are usually brought by adjoining landowners they cannot be easily dismissed quickly due to lack of standing. (The problems associated with the skewed concept of standing in land use cases was the subject of my prior article, The Homeowner Always Loses: The Abusive Concept of Standing, NYLJ (Oct. 8, 2021).) A solution to avoid these "pesky" challenges was thus needed. Several decades ago, a new type of zoning tool appeared—the floating or overlay zone. An example explains these zones best. A municipality can apply a senior housing overlay zone to an area otherwise zoned for single family homes. The overlay zone does not allow the development of any such facility on any particular lot within the area that is subject to the floating zone. Rather, a developer or an owner can file a petition with the municipality asking it to apply or attach the floating zone to a particular tract of land on which the developer seeks to construct a senior housing facility.

The overlay zone clearly benefits municipalities and developers by streamlining the application and approval process. But, does it eliminate the neighbors' ability to bring spot zoning challenges? We explore this question below.

Zoning in General

Traditional zoning is referred to as Euclidean zoning, named after the U.S. Supreme Court decision in Euclid v. Ambler, 272 U.S. 365 (1926) in which the U.S Supreme Court upheld the zoning ordinance of the Village of Euclid, Ohio. See Citizens for a Better Flathead v. Bd. of Cty. Commissioners of Flathead Cty., 385 Mont. 505, 519 (2016). This method of zoning controls land use by establishing districts with set boundaries. The early zoning ordinances used three types of controls: use restrictions, height restrictions and minimum lot sizes. Applying these various restrictions to the entire municipal area regulated land use within the municipality and eventually morphed into the so-called comprehensive plan. See generally Russell R. Reno, Non-Euclidian Zoning: The Use of the Floating Zone, 23 Maryland L. R. 105 (1963); Citizens for a Better Flathead, 385 Mo. at 519. Changes to the comprehensive plan can be made by a complete re-zoning or by changes affecting specific tracks of land. A complete re-zoning requires the municipality to follow specific process to ensure due process (see Brad Neumann, How To Spot a Spot Zoning, Michigan State University) and is likely to run into extensive opposition by residents across the municipality and alienate the politicians proposing them from their voter base. Changes to specific tracks of land, however, may be invalidated as spot zoning.