Knowledgebase-Applying the Open Space Requirements in the City's Zoning Ordinance to Abutting Land in the County Zoned Residential

Information Product

Title:Applying the Open Space Requirements in the City's Zoning Ordinance to Abutting Land in the County Zoned Residential
Summary:MTAS was asked whether the open space requirements in the city's zoning ordinance apply to abutting land in the county zoned residential.
Original Author:Hemsley, Sid
Product Create Date:05/30/95
Last Reviewed on::04/19/2010
Subject:Zoning--Laws and regulations
Type:Legal Opinion
Legal Opinion:

Reference Documents:

Text of Document: May 30, 1995

You have the following question: Do the open space requirements in the city's zoning ordinance, in particular those contained in Section 14-311(2)(c)(1), apply to abutting land in the county zoned residential? Under the facts you related to me, the answer is yes.

As I understand those facts, some of the lines of a lot in an M-1 district in the city are coterminous with the municipal boundary. The land in the county abutting the municipal boundary [and the lines of the lot in question] is zoned either R-1 or R-2--Rural Residential. Section 14-311(2)(c)(1) of the city's Municipal Zoning Ordinance provides that:

(c) All site plans shall meet the minimum yard requirements (open space) established in chapters 6 and 7 of this ordinance; except that, on sites adjoining residential districts, the following additional development standards shall apply:
(i) The requirements for the yard (open space) area shall be one hundred (100) feet...

There is not the required 100 feet open space on the lot in question. The owner of the lot contends that the open space requirement does not apply to land outside the city boundary.

As far as I can determine there is only one case in the United States on this issue, but it involves almost your precise question. In Quinton v. Edison Park Development Corp., 285 A.2d 5 (1971) the Edison Township, New Jersey Zoning Ordinance contained the following provision:

Buffer strip. The owner of a lot or parcel of land having an area in excess of ten acres and upon which is to be built one or more retail stores shall provide a buffer strip one hundred feet in depth along side lot and rear lot lines adjacent to residential uses or zones. The buffer strip shall be continued in its natural state, if adequate, or the owner shall furnish additional suitable planting so as to provide an adequate screen to light and noise that may emanate from the business use or uses.

The zoning ordinance was silent on the question of whether the buffer zone applied to territory outside the township limit.

Edison Township issued the defendant a permit to build a shopping on property abutting Woodbridge Township, New Jersey. The property in Woodbridge Township adjacent to the property in Edison Township upon which the shopping center was to be built was zoned residential. The plans for the shopping center included no buffer. However, upon being advised by its attorney that the buffer was required to protect both the resident of Edison Township and Woodbridge Township, the Edison Township Council rescinded the permit. As you might expect, everybody in the Townships of Edison and Woodbridge, including the defendant shopping center, sued everybody else over the question of whether Edison Township's buffer zone applied to Woodbridge Township.

The Court held that it did. Conceding that the buffer provision in the Edison Township Zoning Ordinance did not affirmatively declare that the buffer strip was to be applicable to all adjacent residential areas inside and outside Edison Township, the Court reasoned that omission "presumably resulted from the fact that no one mentioned the subject rather than from any deliberate intent to confine the afforded protection to residents of Edison Township alone." However, the Count did not stop there, reasoning that:

To us, elemental decency dictated that all of the surrounding residents be given fair and equal protection, and we have no substantial reason for believing that the members of Edison's governing body ever entertained views to the contrary. Indeed, if in the circumstances at hand the governing body had disregarded the consideration of fairness and had deliberately sought to provide a buffer strip requirement for the side which housed adjacent Edison residents, while excluding any buffer strip requirement for the side which housed adjacent Woodbridge residents, its action would presumably have been stricken by the courts. New Jersey has since early times prided itself on the availability of broad judicial review affording its citizens wide protection against arbitrary, capricious or unreasonable official conduct. [Citations omitted].... Our cases have long recognized the duty of municipal officials to look beyond municipal lines in the discharge of their zoning responsibilities....It must be borne in mind that there could be no rational basis for denying to the adjacent Woodbridge residents the landscaped buffer protection afforded to the Edison residents. The noises from the shopping center, the lights from the store windows, the lights in the parking areas, and the fumes from the cars, along with the other disturbances, will have as much of an adverse effect on the nearby Woodbridge residents as they will on the nearby Edison residents. If a buffer strip is reasonably required for the protection of the Edison residents it is reasonably required for the protection of the Woodbridge residents who justly claim equal treatment.

I am confident that if the Tennessee courts were presented with a similar question they would reach the same result, although perhaps for different reasons. I am not sure they would directly mention the breadth of judicial review on the issue of arbitrary, capricious or unreasonable official conduct that exists in Tennessee or issues of equal protection. However, I have no doubt they would recognize the duty of municipal officials to look beyond municipal lines in the discharge of their zoning responsibilities and find policy as well as statutory reasons to support the application of the zoning ordinance outside the city, and that the policy reasons would include the affect on the residents of the county if they were denied the protection of the open space requirement inthe city's Zoning Ordinance.
In at least two other cases, one of them a Tennessee case, the courts have looked to both statutory and policy reasons to support the application of land use regulations outside local governments. In Y & M. v. Beer Commission or Board of Johnson County, 679 S.W.2d 446 (1984) Johnson County, Tennessee adopted an ordinance prohibiting beer establishments within 2,000 feet of a church. A beer permit applicant's establishment was located within 2,000 feet of a church located in North Carolina, and he was denied a permit. The Court upheld the denial of the permit. With respect to the statutory ground for upholding the denial, nothing in the statute establishing beer distance requirements suggested the distance regulations were not to apply outside the state. With respect to the policy ground for upholding the denial, the Court said:

Moreover, we are satisfied the same policy considerations which motivated the legislature to prohibit the location of an outlet for the sale of beer within 2,000 feet of a church located in Tennessee applies equally with respect to a church within that distance located outside Tennessee.

The same result was reached in Santini v. Zoning Board of Appeals, 179 A.2d 621 (Conn. 1962). There a zoning ordinance that prohibited the sale of alcoholic liquor in buildings or premises located within 1,5000 feet in any direction from the entrance to any other building or premises used for the sale of alcoholic liquor applied to liquor stores in an adjacent municipality. That regulation did not purport to give a city authority to regulate property beyond its limits; it only required the city zoning authorities to consider factors outside the city that affected land uses inside the city. Those considerations, said the Court, were consistent with sound zoning principles.

Based on the above cases the city's zoning ordinance with respect to the open space at issue applies equally within and without the city on both statutory and policy grounds. The policy reasons for applying the open space requirements to property in the county zoned R-1 or R-2-Rural Residential are so patently obvious they need no discussion.


Sidney D. Hemsley
Senior Law Consultant


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