Conditional use zoning (sometimes referred to as contingent use zoning) is a controversial type of zoning where the government authority uses negotiation with property owners when rezoning. Most states allow some types of conditional use zoning, but often, conditional use zoning will be overturned by courts as functionally an illegal attempt at contract zoning. Further, any conditional use zoning must not go against the master plan and stay within statutory limits on its authority, like limitations on spot zoning. When allowed, conditional use zoning allows a more flexible option to address problems with developing specific property, such as unique environmental concerns.
Categorical Limitations
Many courts take a categorical approach in determining whether a conditional use zoning is legal. Under this approach, conditional use is considered to be a different kind of zoning than contract zoning or spot zoning. Here, contract zoning is any zoning where the government authority, when getting concessions from a property owner, agrees to take or not take a rezoning action. Any form of this contract zoning will typically not be allowed. Conditional use zoning, however, does not involve the government authority imposing limitations on itself and instead constitutes a unilateral agreement from the property owner. A few courts may not allow any ‘negotiation’ at all, limiting conditional use zoning to only inserting new requirements in the rezoning documents themselves as applied to everyone in the same category.
Substantive Limitations
Rather than emphasize categories, some courts instead focus on the substance of the conditional use. This approach comes in different forms. Some courts use this approach as an addition to categorical analysis, looking into whether the negotiation of the conditional essentially involved concessions on the part of the government authority. The more modern approach ignores any distinction between conditional use and contract zoning at all. Instead, the courts look to whether the conditional use follows the goals of the master plan and does not appear to be the result of pressure from the property owner. This form of substantive limitations emphasizes the practical need for conditional zoning and the dangers of corruption between developers and the governing authority.
[Last updated in May of 2023 by the Wex Definitions Team]
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