Zoning and land use laws promote the common good in attempting to balance the authority of officials in local municipalities to control the impact of growth and development of college and university campuses in and near their communities with the interests of the educational institutions. Postsecondary institutions, which also promote the common good by providing an educated citizenry, often exist under specific grants of authority from the state. In such situations, multiple expressions of the common good can often come in conflict with one another, thereby pitting the authority of local and state governments against the discretion of officials at institutions of higher learning as they make decisions about how their colleges and universities are to operate.
Colleges and universities can be dynamic, vibrant organizations, thereby necessitating changing uses for buildings and properties. In addition, postsecondary organizations can be assigned varying societal roles, including, in recent years, acting as initiators of regional economic development. These changing uses can precipitate conflicts between institutional officials and local zoning boards.
Insofar as colleges and universities provide an important state function, they have enjoyed considerable freedom from oversight or control by the municipalities in which they exist or by zoning boards and commissions representing those municipalities. The general rule seems to be that because institutions of higher learning provide an important state function, they should be permitted to operate with limited interference from local municipalities. In light of the potential town and gown tensions that can arise when the rights and needs of institutions and neighboring communities conflict, this entry examines legal issues associated with the means of addressing many of these concerns in the form of zoning.
Over the past 20 years, the legal tool that the courts used most often to determine whether postsecondary institutions enjoyed immunity from local zoning control is interpretation of statutory language about “uses” for which immunity is granted. Supplemental to this legal test is the interpretation of local municipal ordinances created under powers delegated to local governments by state statutes.
In interpreting statutory language, what state law describes as protected uses is critical. For example, while Wisconsin protects all “governmental uses,” from local zoning, New York limits that protection to “educational uses.” Even more narrowly, California restricts protection from local zoning laws to “classroom uses.”
An example of interpretation of the very broad language under the Wisconsin statute, “governmental uses,” can be found in Board of Regents of University of Wisconsin System v. Dane County Board of Adjustment (2000). When university officials chose to erect a radio tower for a student-run radio station, the county board of adjustment denied their request to do so. On further review of an order in favor of the university, an appellate court affirmed that the institution could proceed as its officials had planned, because the radio tower was a governmental use under the statute.
As described above, New York protects “educational uses” from local zoning laws. When Dowling College in Islip, New York, chose to provide its students with catering services and to provide driver’s education for nonmatriculated students, the town of Islip attempted to intervene. The town unsuccessfully argued that because both activities were outside of the scope of the statutory language, they were not educational uses. In affirming an order in favor of the college, an appellate court expansively included a range of activities for educational institutions, including “social, recreational, athletic, and other accessory uses (that) are reasonably associated with their educational purposes” (Town of Islip v. Dowling College, 2000, p. 161).
California’s more narrow language relating to “classroom use” became the measure in People v. Rancho Santiago College (1990). Reversing an earlier order that had been entered in favor of the college, an appellate court was of the opinion that because the conversion of a parking lot on campus to a swap meet on weekends was not a “classroom use,” the court had to enjoin use of the parking lot for the planned event.
Interpretation of Ordinances
In addition to interpreting statutory language, courts often examine zoning ordinances to distinguish immunity from zoning laws. For example, in the issue addressed in Capricorn Equity v. Town of Chapel Hill (1993), investors proposed to build duplexes to house graduate students. However, a local building inspector refused to provide a building permit on the ground that the duplexes were “boarding houses” subject to zoning control. Ruling in favor of the investors, the Supreme Court of North Carolina explained that references in the ordinance to “boarding houses” denoted housing for transient persons and that graduate students were not transient.
Interpretation of a local ordinance was also determinative in Borough of Glassboro v. Vallorosi (1990), where borough officials adopted an ordinance allowing only family units or the functional equivalent of family units to reside in residential areas. The officials enacted the ordinance in an attempt to confine students to living in dormitories or in areas where townhomes and apartments were permitted. Thwarting this attempt, the Supreme Court of New Jersey affirmed an order of a lower court that insofar as the 10 unrelated students living in a rental house were a “family unit” within the meaning of the ordinance, they could remain in the residential areas.
When officials at Oregon State University wanted to build a hotel and conference facility, the local zoning board was charged with deciding whether the hotel and conference facility was for a civic or commercial use. After the board decided that it was both, a petitioner attempted to block the board’s decision by forcing it to choose one of the two uses on the basis that the uses were mutually exclusive. On direct appeal, the appellate court affirmed an order of the land use board of appeals that because the local zoning board’s action was not “clearly wrong,” it would uphold the board’s action (Schwerdt v. City of Corvallis, 1999).
Exemptions and Variances
Zoning regulations sometimes place height, location, or bulk constraints on building programs for colleges and universities and other owners. Institutional officials may then respond to these constraints by seeking exemptions or variances to the local regulation. Exemptions thus grant institutions freedom from general duties imposed by zoning rules. Variances afford institutions permission to step outside the literal requirements of zoning rules due to unique hardship arising from special circumstances regarding their property. Further, exemptions can be identified as extensions of the concept of immunity. On the other hand, variances are waivers from the strict interpretation of zoning laws, arguably without sacrificing their statutory spirit and intent.
At issue in Draude v. Board of Zoning Adjustment (1990) were requests by officials at George Washington University for both exemptions and variances when its board attempted to build an addition to a building at its medical school. Owners of condominiums in neighboring buildings sued the local Board of Zoning Adjustment (BZA) when the latter granted the university three exemptions and two variances. The exemptions allowed the university to change its campus plan, to exceed an established limit on the bulk of the building, and to build a nonconforming roof structure. The variances allowed the university to extend a nonconforming bulk limit into the building addition and to have an open court area buffering the building addition with the adjacent condominiums that was eight feet narrower than required.
In the District of Columbia, exemptions by local zoning boards are subject to judicial review to evaluate whether they are consistent with the zoning regulations and supported by substantial evidence. At the same time, variances require a demonstration that strict interpretation of zoning regulations would have created extraordinary practical difficulties, would have been detrimental to the public good, or would have substantially impaired the purpose, intent, or integrity of existing zoning regulations. Under these standards, the District of Columbia Court of Appeals sustained the BZA’s grant of all exemptions and variances. The court was satisfied that all of the BZA’s actions were supported by sufficient evidence that led to the rational conclusion that they were consistent with the applicable statutes and regulations.
Spot zoning occurs when specific building lots are or a small property is singled out for different treatment than that given to similar surrounding land, indistinguishable in its character, for the economic benefit or detriment of the lots’ or property’s owner (Milac Appeal, 1965). In a case from Pennsylvania, neighboring property owners unsuccessfully protested the rezoning of university property from residential property to an institutional zoning designation, arguing that doing so was improper spot zoning. The record revealed that the property in question was across the street from the main campus and was adjoined by 14 acres of university land designated as institutional property containing dormitories. In light of the proximity of other university property, all designated as institutional in nature, an appellate court affirmed that impermissible spot zoning had not occurred (Sharp v. Zoning Hearing Board of Township of Radnor and Villanova University, 1993).
David L. Dagley
See also Tax Exemptions for Colleges and Universities
Dagley, D. (2005). Town and gown issues. In J. Beckham & D. Dagley (Eds.), Contemporary issues in higher education law (pp. 449–478). Dayton, OH: Education Law Association.
Board of Regents of University of Wisconsin System v. Dane County Board of Adjustment, 618 N.W.2d 537 (Wis. Ct. App. 2000).
Borough of Glassboro v. Vallorosi, 568 A.2d 888 (N.J. 1990).
Capricorn Equity v. Town of Chapel Hill, 431 S.E.2d 183 (N.C. 1993).
Draude v. Board of Zoning Adjustment, 582 A.2d 949 (D.C. 1990).
Milac Appeal, 210 A.2d 275 (Pa. 1965).
People v. Rancho Santiago College, 277 Cal. Rptr. 69 (Cal. Ct. App. 1990).
Schwerdt v. City of Corvallis, 987 P.2d 1243 (Ore. Ct. App. 1999).
Sharp v. Zoning Hearing Board of Township of Radnor and Villanova University, 628 A.2d 1223 (Pa. Commw. Ct. 1993).
Town of Islip v. Dowling College, 712 N.Y.S.2d 160 (N.Y. App. Div. 2000).