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  • Writer's pictureStephen Nowroski

Zoning Validity Challenges

Zoning Ordinances have been considered a legitimate use of a community’s police powers, since 1926, so long as the regulations provide a benefit to public welfare. The Supreme Court established legal precedent and constitutional justification for zoning in the City of Euclid, Ohio v. Ambler Realty Co. case. Not withstanding the decision, the validity of any zoning ordinance can be subject to legal challenge. Commonly, these challenges come in the form of spot zoning, fair share, exclusionary, takings, irrationality, and equal protection.

In Pennsylvania, zoning is presumed to be valid and the burden is on the challenger to provide evidence that the ordinance is exclusionary, unreasonable, or not substantially related to the police power interests of the municipality. If the challenger is successful, that burden of proof shifts to the municipality to show that the zoning or rezoning is fairly debatable; otherwise not arbitrary or capricious.

In 1954, Pennsylvania Superior Court defined spot zoning as, “A singling out of one lot or a small area for different treatment from that accorded to similar surrounding land indistinguishable from it in character, for the economic benefit of the owner of that lot or to his economic detriment is invalid "spot" zoning”. Subsequent cases have upheld this definition.

Although ‘special’ zoning regulations for a single parcel or small area may raise the concern of spot zoning, there can be cases where it is not necessarily so, and may in fact be good planning. It may make sense for a property at the intersection of two major roadways within a residential area, to be zoned with commercial uses. The commercial use in this scenario can support the neighborhood, and make better use of a property that may be undesireable as a residential use.

Fair Share challenges are those where the municipality is being accused of not providing enough land to accomodate the demand for a use in an area. Often a fair share challenge arrises for residential uses, such as higher-density uses like apartment buildings, but can be raised for non-residential uses as well. Through the ‘Surrick v. Upper Providence Township’ case, the Pennsylvania Supreme Court has created a three-step test for claims alleging this defect in the zoning ordinance:

  1. The community is reviewed to determine if the community is in the path of development, in that it is a logical area for growth.

  2. If the first test is true, the present level of development is examined to see if the community is highly developed.

  3. The court must consider the following factors in deciding wheter a community has met its “fair share”:

  4. Existing population growth trends, and growth pressures, within the municipality and region;

  5. The percentage of land available for the use under the current zoning ordinace;

  6. The amount and perentage of undeveloped land in the community; and

  7. The extent to which the use can be accomodated under the existing zoning ordinance.

Exclusionary Zoning is a challenge where it is claimed a municipality unconstitutionally excludes uses. There are two types of exclusion, de jure and de facto.

De jur is a total exclusion, where a zoning ordinance either prohibits or excludes provisions for a particular use.

De facto is a partial exclusion, where a zoning ordinance will permit a use but it does not provide enough land or the regulations are such that it negates practical development of the use.

There are instances where exclusion could be considered constitutional by the courts, if a municipality could prove that the exclusion is considerably linked to the protection of the health, safety, and welfare.

Downzoning is what it sounds like, it is when land is rezoned to allow for less-intensive uses. For example, land that once permitted multi-family may now only allow single-family, or if commercial uses were permitted, and now only residential uses are. The uses that are no longer permitted and predate the zoning change become non-conforming uses.

Downzoning can be seen as reducing the rights of a property owner and should be done after thorough planning efforts, basing the change on legitimate public interest and providng economically reasonable use of the land.

Takings typically come in two forms, physical and regulatory. Zoning does not deal with a physical occupation of property, therefore, we will not discuss that here. A regulatory taking occurs when a government regulation limits the use of private property to a point that the landowner is functionally deprived of any economically reasonable use of their property. It is important to note that although municipalities are required to provide for a reasonable use, it is not required that it is the highest and best use.

Zoning is an important aspect of local development controls, and as such, must be carefully crafted. Successful challenges to a zoning ordinance can present significant concerns for a municipality. It is important to be aware of the evolving development patterns and how local and regional growth can affect a community, and how well suited the municipality’s land use regulations to the changing landscape.

For more information on this topic, or if you are in need of an ordinance review or amendments, please contact Stephen Nowroski at

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