Overlay Zones: A 'Clever' Way Around Spot Zoning?
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? The author explores this question.
November 08, 2021 at 11:00 AM
9 minute read
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.
This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.
To view this content, please continue to their sites.
Not a Lexis Subscriber?
Subscribe Now
Not a Bloomberg Law Subscriber?
Subscribe Now
NOT FOR REPRINT
© 2025 ALM Global, LLC, All Rights Reserved. Request academic re-use from www.copyright.com. All other uses, submit a request to [email protected]. For more information visit Asset & Logo Licensing.
You Might Like
View AllTortious Interference With a Contract; Retaliatory Eviction Defense; Illegal Lockout: This Week in Scott Mollen’s Realty Law Digest
Court of Appeals Provides Comfort to Land Use Litigants Through the Relation Back Doctrine
8 minute readPiercing the Corporate Veil; City’s Authority To Order Restorations; Standing: This Week in Scott Mollen’s Realty Law Digest
Trending Stories
- 1Midsize Firm Bressler Amery Absorbs Austin Boutique, Gaining Four Lawyers
- 2Bill Would Allow Californians to Sue Big Oil for Climate-Linked Wildfires, Floods
- 3LinkedIn Suit Says Millions of Profiles Scraped by Singapore Firm’s Fake Accounts
- 4Supreme Court Agrees to Hear Lawsuit Over FBI Raid at Wrong House
- 5What It Takes to Connect With Millennial Jurors
Who Got The Work
J. Brugh Lower of Gibbons has entered an appearance for industrial equipment supplier Devco Corporation in a pending trademark infringement lawsuit. The suit, accusing the defendant of selling knock-off Graco products, was filed Dec. 18 in New Jersey District Court by Rivkin Radler on behalf of Graco Inc. and Graco Minnesota. The case, assigned to U.S. District Judge Zahid N. Quraishi, is 3:24-cv-11294, Graco Inc. et al v. Devco Corporation.
Who Got The Work
Rebecca Maller-Stein and Kent A. Yalowitz of Arnold & Porter Kaye Scholer have entered their appearances for Hanaco Venture Capital and its executives, Lior Prosor and David Frankel, in a pending securities lawsuit. The action, filed on Dec. 24 in New York Southern District Court by Zell, Aron & Co. on behalf of Goldeneye Advisors, accuses the defendants of negligently and fraudulently managing the plaintiff's $1 million investment. The case, assigned to U.S. District Judge Vernon S. Broderick, is 1:24-cv-09918, Goldeneye Advisors, LLC v. Hanaco Venture Capital, Ltd. et al.
Who Got The Work
Attorneys from A&O Shearman has stepped in as defense counsel for Toronto-Dominion Bank and other defendants in a pending securities class action. The suit, filed Dec. 11 in New York Southern District Court by Bleichmar Fonti & Auld, accuses the defendants of concealing the bank's 'pervasive' deficiencies in regards to its compliance with the Bank Secrecy Act and the quality of its anti-money laundering controls. The case, assigned to U.S. District Judge Arun Subramanian, is 1:24-cv-09445, Gonzalez v. The Toronto-Dominion Bank et al.
Who Got The Work
Crown Castle International, a Pennsylvania company providing shared communications infrastructure, has turned to Luke D. Wolf of Gordon Rees Scully Mansukhani to fend off a pending breach-of-contract lawsuit. The court action, filed Nov. 25 in Michigan Eastern District Court by Hooper Hathaway PC on behalf of The Town Residences LLC, accuses Crown Castle of failing to transfer approximately $30,000 in utility payments from T-Mobile in breach of a roof-top lease and assignment agreement. The case, assigned to U.S. District Judge Susan K. Declercq, is 2:24-cv-13131, The Town Residences LLC v. T-Mobile US, Inc. et al.
Who Got The Work
Wilfred P. Coronato and Daniel M. Schwartz of McCarter & English have stepped in as defense counsel to Electrolux Home Products Inc. in a pending product liability lawsuit. The court action, filed Nov. 26 in New York Eastern District Court by Poulos Lopiccolo PC and Nagel Rice LLP on behalf of David Stern, alleges that the defendant's refrigerators’ drawers and shelving repeatedly break and fall apart within months after purchase. The case, assigned to U.S. District Judge Joan M. Azrack, is 2:24-cv-08204, Stern v. Electrolux Home Products, Inc.
Featured Firms
Law Offices of Gary Martin Hays & Associates, P.C.
(470) 294-1674
Law Offices of Mark E. Salomone
(857) 444-6468
Smith & Hassler
(713) 739-1250