Regulating Public Uses

PAS Report 228

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Information Report No. 228 November 1967

Regulating Public Uses

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The zoning of private property has been the subject of a voluminous literature, including many ASPO Planning Advisory Service Reports. Discussions devoted to the zoning of public uses of land pale in comparison. This apparent disinterest reflects the widespread view that publicly held land need not be zoned. For it seems self-evident that a government which exercises the police power in the name of the general welfare would heed that same welfare when using land for public purposes. In fact, governmental bodies have traditionally been immune from the restrictions of their own zoning ordinances, and higher levels of government have been exempt from local controls.

Nevertheless, in recent years governmental functions have more and more frequently been made subject to zoning restrictions similar to those imposed on the private uses of land. A previous Planning Advisory Service Report, Public Property Zoning Problems, discussed the merits and effectiveness of zoning public property and reached the following conclusion:

The application of planning controls to private property is now a fairly routine matter in most states. Despite the much smaller number of instances in which such controls are enforced on public property, the need for such control is sometimes serious. Unfortunately, we have not yet devised satisfactory methods to apply controls in these cases.1a

What progress has been made in the past decade? A fresh look at the status of public property zoning is warranted. This report will focus on alternative methods for regulating public uses in the zoning ordinance. It will also review the current effectiveness of such zoning when applied to the property and activities of traditionally exempt governmental bodies. Special emphasis will be given to the previously unevaluated and infrequently discussed public use district.

Before proceeding, a clarification of terms is in order. The term "public use" pertains mainly to government-operated activities located on land owned or leased by a public body. The term may also include public utilities, whether privately or publicly owned. Many activities are neither strictly private nor public and fall into the category of "quasi-public uses" (e.g., churches, parochial schools, and philanthropic institutions). These are sufficiently similar to government-owned, public uses that zoning ordinances frequently treat them alike. Local communities, however, can vary greatly in which quasi-public uses they choose to identify with public uses.1b


The public use of land should be regulated for much the same reasons that the private use of land is regulated. Zoning control helps to protect real property from intrusions by nuisances and incompatible uses which would detract from the value and usefulness of the land. If the private property owner is protected from private intrusions, it can be argued that he should also receive protection from public intrusions. At a minimum, the zoning ordinance which regulates public uses gives notice of the government's judgment of the public interest in regard to the location of public facilities.

A primary reason for zoning public property is that failure to zone it can lead to unfortunate results when the public use of the property is abandoned. A 1960 New York case, Russell Sage College v. City of Troy,2 tested the right of a purchaser of an abandoned school site to construct a slaughterhouse. The zoning map showed the tract in a category designated "public buildings." The ordinance text said nothing about a "public building" district. Thus, in the opinion of the court, the property was unzoned. Because of this oversight, by neglecting to zone the public property originally or to rezone for more appropriate uses when public use and ownership were relinquished, the slaughterhouse was allowed. This problem could have been avoided if proper provisions for public uses were included in the zoning ordinance.

Another benefit derived from zoning public uses is the potential for helping to coordinate the activities of different city departments in accordance with the city's over-all plan. The zoning of public uses guards against the danger of decisions about the location of public facilities being made inadvertently or hastily.3

Zoning for public uses should receive the same careful consideration as zoning for private uses. Zoning permissiveness which allows any governmental or public use in any district is inadequate protection for the private property owner. Convenience is not a legitimate excuse for a city to disregard its own land-use policy nor should zoning be so restrictive that some uses are excluded from districts where they might be appropriate (e.g., mental health centers in residence districts).

Guidelines for treating public uses in the zoning ordinance can be relatively simple. When one community was considering amendments to its zoning ordinance to regulate public uses, it evolved the following set of criteria:

  1. Public uses of land should not be given special privilege over private uses of land except when there is clear necessity for essential public facilities.
  2. Public uses should be harmonious with the (private) uses in a given district.
  3. Certain public uses are clearly compatible with, and necessary for, residential-use districts. They should be permitted and controlled by the zoning ordinance.

Public uses considered in this way are less likely to become nuisances to private citizens and are more likely to fulfill their intended purposes of serving the community.


The decision to include public uses in the zoning ordinance is only the first step. The next and most crucial step is to include them properly. Three ways of treating public uses in the zoning ordinance are examined in this report: the conventional or multi-district approach, the special district, and the public use district. These alternatives are not mutually exclusive; a community might choose one of them or all three. The public use district approach is discussed in greatest detail because its potential as a zoning tool is little known.

Multi-District Approach

The multi-district approach, for want of a more explicit term, refers to the listing of permitted public and quasi-public uses for each district which the zoning ordinance establishes. Most cities which regulate public uses in their zoning ordinance adopt some form of this technique.

The zoning resolution of the City of New York (1960), for example, regulates public and quasi-public uses in each of its 59 districts. It does so by listing public and quasi-public uses, along with private uses, in a number of different use groups. Public uses are channelled into appropriate districts because the ordinance specifies which use groups are allowed in each district. Some public and quasi-public activities, e.g., colleges, schools, libraries, museums, church monasteries, convents, philanthropic and non-profit institutions (of limited size), certain types of clubs, health, medical, and hospital facilities, playgrounds and parks, welfare centers and sanitariums, are classified as community facilities appropriate to residential districts. They are permitted in residential districts and in all but the most intense commercial district. Most other public and quasi-public uses are included under four general classifications — retail and commercial, recreation, general service, and manufacturing. Thus, post offices, court houses, fire and police stations, and governmental offices are classified in the same group as personal service and retail establishments. Public transit yards are classified as an automotive and semi-industrial use.

Many public uses, particularly those with unique characteristics, such as radio or television towers, airports, sewage disposal plants, require special permits. Some uses, e.g., electric or gas utility substations or fire and police stations, require a special permit in residence districts; others, e.g., schools, require a permit in manufacturing districts.

Special safeguards exist for public parks. Zoning map designations are not applicable to public parks which are under the control of the commissioner of parks. Should a park be sold, transferred, or exchanged, no building or use is allowed until a zoning amendment, showing a zoning designation for the park, is adopted.

The Minneapolis zoning ordinance (1963) relies heavily on conditional use provisions to regulate public activities. It permits as a matter of right elementary and senior high schools, public libraries and art galleries, public museums and aquariums, parks, playgrounds, municipal athletic fields, golf courses, municipal recreation buildings and centers, and religious institutions in all of its residential districts. Institutions for the aged and for children and fraternity and sorority houses are also permitted in the less restrictive multiple-family districts. Many public uses in residential zones are permitted as conditional uses, e.g., cemeteries, public utility and service uses, reservoirs, colleges, convalescent and nursing homes, and health and medical institutions. While many public uses are permitted outright in business districts, public utility and service uses (such as electric and gas substations, fire and police stations, post offices, telephone exchanges and transmission buildings, radio and television towers) generally require a conditional use permit in most business districts. Municipal sewage treatment plants and refuse disposal areas are allowed only in manufacturing districts and then only as conditional uses.

The zoning regulations of the Oakland, California, city planning code distinguish civic activities from other activity types, e.g., residential, commercial, manufacturing, or agricultural. "Civic activities include the performance of utility, educational, recreational, cultural, medical, protective, governmental or other activities which are strongly vested with public or social importance." Civic activities are classified in the following groups:

  1. Essential Service, e.g., public polling places, utility distribution lines, parks.
  2. Limited Child Care, e.g., day care service for three or fewer children.
  3. Nursing Home, e.g., small nursing, rest, and convalescent homes.
  4. Community Assembly, e.g., churches, playgrounds and fields, lodges, recreation centers, food concessions in public parks.
  5. Community Education, e.g., orphanages, day-care centers, nursery schools, schools through senior high.
  6. Non-Assembly Cultural, e.g., museums and art galleries, libraries and observatories.
  7. Administrative, e.g., activities performed by public, parochial, and public utility administrative offices.
  8. Health Care, e.g., health clinics, hospitals, nursing homes, convalescent hospitals, rest homes and homes for the aged, centers for observation and rehabilitation.
  9. Utility and Vehicular, e.g., communications equipment installations, electric substations, public emergency hospitals, police and fire stations, gas substations, post offices, public off-street parking lots and garages.
  10. Extensive Impact, e.g., most large public type uses from airports, cemeteries, colleges, garbage dumps, golf courses, stadiums, and corporation yards to zoos.

Categories 1 and 2 are permitted in all residential districts; categories 7–10 are conditionally allowed in all residential districts; categories 3–6 are permitted as of right in medium-high to high-intensity zones and conditionally permitted in the more restrictive residential zones. For commercial and manufacturing districts, similar gradations of allowable public uses are made with some civic activity groups permitted outright and others only conditionally permitted. In no district, however, are extensive impact activities permitted as a matter of right; they are always subject to conditional-use regulations.

The Philadelphia zoning ordinance (1962) adopts a straightforward and all-inclusive approach to the regulation of public uses by incorporating this policy statement as part of the ordinance:

Property Owned, Leased or Operated by Public Agencies. Property leased or operated by the Commonwealth of Pennsylvania or the United States, and property owned, leased or operated by the City of Philadelphia, or any other public or governmental body or agency, shall be subject to the terms of this Title, as follows:

(a) Where such public or governmental uses are specifically listed, they shall be governed as indicated;

(b) Where such public or governmental uses are not specifically listed, they shall be permitted only in districts permitting private uses of a similar or substantially similar nature;

(c) Property owned by the Commonwealth of Pennsylvania or the United States shall be exempt from the provisions of this Title only to the extent that said property may not be constitutionally regulated by this City.

As in ordinances previously described, Philadelphia lists the permitted and conditionally permitted public uses in each district. Cemeteries, however, require specific authorization by ordinance; airports, quarries, dumps, and landfills require a certificate from the zoning board of adjustment.

Long lists of public uses or even classifying public uses into groups may seem complicated and unnecessary, but a few court cases illustrate the problems arising out of the alternative — granting blanket governmental permission to locate any public use in any district. In the case of Francis v. Housing Authority of Brevard County,4 a multiple-family public housing project was permitted as a "municipal use" in a single-family residence zone. Although public housing projects in this state (Florida) must comply with zoning laws, a local zoning ordinance, which allowed municipal, county, state, or federal uses in single-family zones without specifying the nature of these municipal uses, could not prohibit the construction of the housing project. In a similar ruling, a post office was permitted in a residence zone because the ordinance allowed "schools, institutions of an educational or philanthropic nature, public buildings." Neighbors argued that public buildings meant only buildings for educational or philanthropic purposes; the court concluded that "public buildings" was a distinct and separate category to which a post office surely belonged.5

The listing of permitted public uses within the conventional districts of the zoning ordinance and the requirement of special permits for other public uses is a widely used technique. This approach ensures that public uses and properties are zoned, and it specifies which public uses are appropriate for each district.

Special Districts

Where functionally related public and quasi-public uses are clustered or where public policy envisions such clustering, special districts are often established. The civic center district, the medical center district, or various forms of institutional districts are characteristic of larger cities where complexes of similar uses can be expected to occur. Sometimes special districts are established for particular types of land use, e.g., parks, airports, or cemeteries, because of the distinct open characteristics they possess.

The purpose of the civic center district of Oakland, California, is stated succinctly in the ordinance:

The S-2 zone is intended to create, preserve, and enhance areas devoted primarily to major public and quasi-public facilities and auxiliary uses and is typically appropriate to portions of the Oakland Central Business District and to outlying areas of public facilities.

Oakland allows residential activities and some commercial activities in the district in addition to most civic activities. Additional civic and commercial activities are permitted with a conditional use permit. Other ordinances limit the civic center district to civic center buildings only, e.g., Pasadena, California (amended to 1964).

The institutional district like the civic center district applies mainly to public and quasi-public uses. A district of this type is based on the view that a concentration of very particular kinds of uses deserves special zoning protection. Oakland's medical center zone protects "areas devoted primarily to medical facilities and auxiliary uses and is typically appropriate to compact areas around large hospitals." The institutional development district established by the Philadelphia ordinance is a device "to encourage the development of institutional uses in accordance with an approved plan of development."

Frequently an institutional district represents a hybrid between the least restrictive residential district and the most restrictive commercial districts. For example, the Minneapolis office-residence district allows dwellings, clubs, educational and cultural institutions, health and medical institutions, philanthropic and charity uses, religious institutions, recreational and social facilities, and business and professional offices.

In some cities special districts are created to recognize through zoning "open" public or quasi-public uses such as recreational areas, parks, and cemeteries. Philadelphia's recreational district applies to park and recreational land under the jurisdiction of the city department of recreation and the Fairmount park commission, while New Haven's park district protects "areas that are public or semi-publicly owned and are designated as public parks and open spaces." New Haven's ordinance also establishes a separate special district for cemeteries, but provides that if the land is not developed as a cemetery, it may be used for residential purposes.

The special district can cover many types of public and quasi-public uses. The use of special districts is most appropriate where concentrations of similar facilities exist or can be anticipated. The choice of the number and kinds of special districts depends largely upon the spatial structure of a community and upon the extent to which such related uses tend or might be encouraged to cluster.

Public Use Districts

The third approach is a separate zoning classification for public uses (and sometimes for quasi-public uses as well). The public use district offers an alternative to the forms of special districts previously discussed.

Definition and Purposes. "[The public use district] is a classification intended to cover major parcels of land in public and quasi-public uses. In it would be included parks, civic centers, large public and parochial school campuses, universities and cemeteries."6

The public use district is a preferred way to zone planned or already existing concentrations of public facilities. It is not a substitute for the conventional zoning approach which lists governmental and institutional activities as permitted uses in a residential or commercial zone, but an adjunct to it.

The public use district represents a broadening of the concept of the special district. It can substitute for many different specialized districts and it can be applied to different types of public and quasi-public use concentrations. In all but the larger cities, many of the special districts may be unwarranted. The public use district therefore appears to be most popular in small- and medium-sized cities.

The public use district, however, has not been widely assimilated into zoning ordinances. To inform other communities of its potential as a zoning tool, a review of the experiences of communities which have established public use districts became part of this study of public uses. The following account from communities with public use districts reveals the variety of purposes the district can serve.

One community summarizes its public use district this way:

  1. It is convenient for showing the location of publicly owned lands on the zoning map and indicating the relationship of the public areas to the community's land-use pattern.
  2. By designating areas devoted to public building sites, parks, etc., it informs abutting property owners of the possible character of development.
  3. It provides a record of governmental ownership and the development potential of the land.

The protective aspects of the public use district can be emphasized: "It seems logical that control of public and quasi-public lands should be included in the broad land-use regulation that zoning is intended to accomplish. ... Large public and semi-public investments obviously deserve the protection of compatible uses as set out in the public district."

The usefulness of the public use district in alerting the public is also significant, as the experience of a California city reveals. The public type district was employed because "there had been a large number of citizen complaints that 'they didn't know' the intended public use of an adjacent parcel and it was felt that designating such properties on the Zone Map would assist in informing prospective purchasers of property."

One city also states the following rationale for inclusion of a public use district in the zoning ordinance: "The public facilities district is considered a tool that can be used to some degree in influencing land use so that such use will be compatible with the projected land use plan."

Whatever the variations in the establishment or application of the public use district, it has the distinct advantage of giving the local governing body, more particularly the local legislature, leverage over any future use of the land. When public or quasi-public use or ownership is abandoned, rezoning will become necessary if the property is to be sold for private use. Independent local commissions and boards, such as the school board, are thus unable to dispose of public property for nonpublic purposes without consent of the governing body. Consequently disposal of public land must take into account the prevailing land-use policies of the community.

Examples of the Public Use District. Six cities with public use districts were chosen as examples of this districting technique. The statements of intent for the district quoted from the zoning ordinances of five of these communities illustrate how other communities may expect to employ the public use district.

Bismarck, North Dakota (1958): The P Public Use District is established as a district in which the predominant use of land is for public education uses. The intent is:

1. To encourage the continued use of the land for public recreation and public education uses;

2. To prohibit residential, commercial and industrial uses of the land, to prohibit particularly commercial recreation uses of the land, and to prohibit any use of the land which would diminish its value in serving the educational and recreational needs of the city.

Lawton, Oklahoma (1964): This district [P-F Public Facilities] is intended to accommodate governmental, public recreational, public utility, public educational, and institutional facilities.

Palo Alto, California (1963): This district [P-F Public Facilities] is designed to accommodate governmental, public utility, and educational facilities.

San Francisco, California (Amended to 1964): ... There shall also be in the city a Public Use District referred to as a P district to apply to land that is owned by a governmental agency, and in some form of public use, including open space, The purpose of designating such land as a P district [Public Use] on the Zoning Map is to relate the Zoning Map to major elements of actual land use and the City-Wide Land Use Plan of the Master Plan.

Anchorage, Alaska (drafted in 1963): Public Lands and Institutions Districts are intended to include major open lands and major public and quasi-public institutional uses, including existing land reserves for future public and institutional use.

Provisions for permitted uses, conditional uses, and other requirements for the public district as summarized in the following table demonstrate the typical application of the public use district. Provisions for height, bulk, yards, parking, and other similar requirements vary greatly, and are not included in the table. Requirements for lot size and parking are simple — sometimes as simple as "sufficient for the specific intended use." Yard requirements tend to be similar or identical to the most restrictive abutting district. Detailed provisions such as these must be related to the particular situation. Simplicity is generally the rule on the assumption that the quality of public development would make detailed formulas unnecessary.

Table 1. Illustrative Provisions of Public Use Districts

Permitted Uses Special or Conditional Uses

Bismarck, North Dakota


Educational facilities*

Public recreation*

Utility service facilities*

(Cannot rezone any portion of city to a P district if any use exists in that district which would become non-conforming. District designates only areas at present devoted or that become later devoted to public recreation, public education [including parochial institutions] and cemeteries)


Cemetery, mausoleum, columbarium or crematory.


Clearwater, Florida

Public streets, places, alleys, public parks, public buildings, public recreation grounds, public aviation fields, golf courses, baseball fields, other athletic fields, bathing beaches, amusement parks, recreational centers, railways (other than street railways), places of scenic beauty calculated to attract visitors and tourists


None listed.


Palo Alto, California

  1. All facilities owned, leased, or operated by the city, county, state, U.S. government, or school district or any other district
  2. Public or private colleges and universities and facilities


Facilities of all public utilities and corporations or other organizations under jurisdiction of FCC or ICC


San Francisco, California

  1. Buildings and uses of governmental agencies not subject to regulation by the San Francisco code
  2. Public buildings and uses of the city and other governmental agencies that are subject to regulation by the San Francisco code, when in conformity with the master plan and other applicable laws


Parochial or private elementary or secondary school


Nursery school, day nursery, child care center

Private non-commercial recreation open use. Community clubhouse or institutional recreational building

Community garage, utility installation, public service facility, landing field for aircraft, wireless transmission tower, railroad; provided that operating requirements necessitate location within the district

Greenhouse or plant nursery (no retail sales)

Lawton, Oklahoma

City hall; fire station; police station; utility bill collection office; county court house; armory; army reserve building; post office; city, state, county, or federal office building

Public school; public college or university

Hospital; sanitarium or convalescent home

Public airport or air terminal; public utility transmission or generation station

Public fairgrounds; public medical building; museum, art gallery, aquarium, planetarium, library, public recreation building, public exhibition hall, public auditorium, assembly hall and/or gymnasium, public sports stadium


Institutional uses and facilities similar in function and character to permitted uses






Public uses similar in function and character to permitted uses


Anchorage, Alaska

Parks, parkways, land reserves, and related facilities

Golf course, playgrounds, playfields, and the like

Zoos, museums, historic and cultural exhibits, and the like

Water conservation and flood control installations

Quasi-public institutions, schools, colleges, and universities, hospitals, children's homes, convalescent homes, homes for the aged, correctional institutions, rehabilitation centers, and the like

Cemeteries, churches, sewer, water supply and utilities installations


Exploitation of mineral resources (tracts 90,000 square feet or more)

Oil and gas development (tracts as above)

Commercial farming (10 acres or more)

Radio and tv transmission towers

Recreation uses, including commercial for a period to be determined by the planning commission

*Defined more specifically in ordinance.  

Application of the Public Use District. The public use district is intended to cover large tracts of land in public or quasi-public uses or clusters of public and quasi-public uses. Unless the institution or open spaces comprise a substantial tract of land, they should not be made the basis of a public use district classification.

To prevent an excessive number of public use districts, dotted about the city, the Bismarck ordinance states:

It is the further intent of this article and section to designate no area as P Public Use District which is now used, or is intended to be used, for a church and accessory religious educational buildings only....

Dennis O'Harrow, who prepared these provisions, reflected that this statement was included because of the large number of churches scattered throughout the city.

For an area like the Greater Anchorage Area Borough, where much of the land is in government ownership (predominantly federal) and in institutional uses, the public use district can work especially well. In the city of Anchorage there are almost 2,000 acres in 11 "Public Lands and Institutions Districts" which account for about 23 per cent of the land within the city limits.

In some of the communities studied, this guideline of relatively large acreages has not been strictly followed. Districts vary in size from part of a lot to a few lots to relatively large park acreages. While individual quasi-public or institutional uses are rarely, if ever, the basis for a public use classification, individual public neighborhood parks and public school sites frequently are. The application of the public use district to such small sites does not seem to negate its usefulness as a zoning tool, although the alternative approach of including the individual park or school as a permitted use in a conventional zone (residential or commercial) would accomplish the same end.

While the public use district mainly applies to public facilities operated by some governmental authority, the city, the state, or the school district, it also can include nongovernmentally operated facilities. The characteristics which make a use eligible for a public use district can be variously interpreted as the following examples demonstrate.

The Palo Alto ordinance specifies that publicly (i e., government) owned or leased facilities and public or private colleges and universities are eligible. Clearwater, Florida, construes its ordinance to allow only public ownership. The tone of the ordinances of Bismarck, Lawton, and San Francisco suggests that the district is principally intended for publicly owned uses. As the table indicates, however, a variety of additional uses like churches, parochial schools, and other institutions, typically operated by quasi-public organizations, can qualify. Conversely, the Anchorage ordinance allows a broad range of public and quasi-public uses with no requirement that they must be public in the sense of being government-owned and operated.

Designating land used for private purposes (distinguished from institutional use of land) as a public use district would be both inequitable and illegal. It is unrealistic to imagine that a private owner could be reasonably expected to use his land only for a school, park, library, church, or some similar institutional use. In Appeal of Glorioso,7 the Pennsylvania Supreme Court reasoned that, as applied to Glorioso's property, the special district (which allowed governmental uses, cultivation, and a few institutional uses) constituted an illegal taking. Only three pieces of property, Glorioso's lot, a supermarket (a nonconforming use), and a railroad property (permitted), had been included in the district. The court concluded:

By creation of this "Special" district in this small area of land, completely surrounded by districts zoned commercial and industrial, the Borough has singled out and created a small "island" of severely restricted uses, despite the absence of any differentiating relevant facts between the 11 island" and the surrounding districts.... the highest motives and the exercise of legislative wisdom are not sufficient to preserve an ordinance from the prohibition of the constitutional mandate that property shall not be taken for public use without just compensation. (Emphasis supplied.)

Thus, as this case demonstrates, the public use district is not a shortcut to, nor a substitute for eminent domain. When, however, a governmental body acquires extensive acreages of undeveloped land through eminent domain, as it might in a land bank, the public use district offers an appropriate zoning category for this open public land. Permitted uses in this type of public use district should be chosen to allow continued open use of the undeveloped land held in this way. Because the community retains the right to rezone, it gains considerable leverage over any future use of the land.

Summary. When and where it is applicable, the public use district offers important benefits and is a useful part of the zoning ordinance.

  1. It ensures that public property is zoned.
  2. It establishes a classification in the zoning ordinance that recognizes the public nature of the land and provides guidelines for its continued use or future development.
  3. When public use or ownership is abandoned, the local authority retains control over future nonpublic use and any rezoning of the land.

Status of Governmental Immunity From Zoning

The inclusion of public uses in the zoning ordinance encourages the appropriate location of public facilities. The "persuasiveness" of the zoning of government-owned facilities depends upon the extent to which municipal or county zoning ordinances are interpreted as legally binding on the enacting government and other governments. An increasing tendency for federal, state, county, and municipal agencies to respect local land-use regulations is apparent.

Similarly, through statute and judicial decisions, there are recent indications that the time-honored principle, "the king can do no wrong," is being modified by subjecting state development projects to reasonable standards imposed by local zoning ordinances.

Deciding when governments are bound to local zoning ordinances and when they are exempt has been an issue in numerous court cases and legal discussions. This discussion of governmental immunity is only a brief review of the present situation. For more detailed analysis and legal opinions the reader is directed to the references listed in the footnotes and the bibliography,

Governmental immunity from zoning ordinances can take a variety of forms:

  1. The right of a city or county to disregard its own ordinance.
  2. The right of a state or federal agency to disregard a local ordinance.
  3. The right of one local government or special district to disregard the ordinance of another local government.

A City or County and Its Own Ordinance

Unless a state enabling act subjects local government functions to local zoning ordinances (e.g., North Carolina Gen, Stat. sec. 160-181.1) or the enacting authority subjects itself to its own zoning ordinance (e.g., Philadelphia, as previously discussed), local immunity from the local zoning ordinance can prevail. Indeed, some cities specifically exempt themselves from their own zoning regulations, and others may simply give blanket permission for governmental uses in any district. A city can, of course, comply with its own zoning ordinance as a matter of policy.

When the right of the enacting authority to disregard its own ordinance has been tested in the courts, the courts have usually concluded that governmental functions do not require compliance with the zoning ordinance while proprietary functions do. The distinction between the two is often fuzzy. A function is usually considered proprietary if it results primarily in private benefits and only indirectly in public benefits or if the function is performed by legislative permission; a governmental function is one required by legislative mandate or which results in general public benefit. There is no clear-cut rule about which functions are proprietary and which are not. Because garbage disposal was deemed a governmental function, a sanitary landfill was not made subject to a city's own zoning ordinance.8 On the other hand, a city-owned power substation was made to comply with zoning because "in the operation and distribution of electrical power the City of Idaho Falls is acting in a proprietary capacity."9

A more recent approach to the problem suggests that authority to perform a public function does not imply authority to perform that function in some particular location. In the opinion of one commentator, the location of a public use in violation of the zoning ordinance should require an amendment to the ordinance:

It is urged that a city should never be given an exemption from the force and effect of its own zoning ordinance. There is no compelling reason why a city should not be required to amend the zoning ordinance preceding the establishment of a prohibited land use. . . . Compliance with the statutory procedure imposes no undue hardship of delay on the city. . . . By demanding the zoning ordinance be amended, the city is required to put its land use machinery into operation, not simply its park or sewage department machinery. The effect of this would be to force the city to give thought to the appropriateness of the land use location rather than simply the program considerations in locating the facility at a particular site. It seems highly desirable that the government comply with established rules and procedures in taking this action.10

Higher Levels of Government and the Local Zoning Ordinance

The applicability of local zoning ordinances to the state and federal governments is also based on the distinction between governmental and proprietary public facilities and additionally on the sovereign right of eminent domain of states and the federal government. The first basis gives higher levels of government limited immunity, i.e., they are only exempt from local zoning ordinances where governmental functions are concerned.

The second basis establishes complete immunity. It is predicated on the assumption that since state agencies have the right to condemn land for a public purpose, they also have the right to use it without regard to the restrictions of zoning.

Because of the ambiguity of the governmental-proprietary distinction in the case of public utilities, some states have specifically exempted them from the regulations of local zoning ordinances. The New Jersey formula is considered typical. If the public utility commission determines that the restrictions of a zoning ordinance are unreasonable in a particular situation, the commission can exempt the utility from adhering to them.

In other instances the municipalities retain local zoning control. The State of North Carolina specifically subjects the construction of state owned buildings to local zoning ordinances, Generally, state housing authority acts require that public housing authorities conform to local zoning. The federal government has endeavored to make it a matter of policy to respect local land-use regulation, e.g., in the location of post offices.

It seems that the courts have relied upon mechanical criteria to protect the sovereign immunity of the state whenever a conflict between a higher level of government and the local level has occurred. An alternative approach suggests that a resolution of conflicts over public use of the land could require a "balancing of conflicting interests:"

Legislative guidelines for balancing these conflicting interests may be available. In conferring broad zoning power, the legislature has implicitly recognized a fundamental local interest in zoning objectives. Thus, to the extent that an effective zoning system requires unqualified municipal jurisdiction, the zoning ordinance should govern the activities of other state agencies absent an express withdrawal of municipal jurisdiction. While the other agencies are typically charged with relatively narrow statutory responsibilities, municipalities invariably bear responsibility for a wide variety of interests.... Since it is reasonable to presume that the legislature intended a balanced viewpoint to control in cases of conflict, it would seem that an agency's power to conduct a state function is not a license to disregard local zoning restrictions, but authorization to operate in accordance with them. This construction, when accompanied by the power of the state agency, like any private landowner, to challenge an unreasonable ordinance or see its amendment, accommodates municipal interests without unduly interfering with agency performance of statutory responsibilities.11

lntergovernmental Conflicts at the Local Level

Conflict over compliance with a city or county's zoning ordinance by another city or county, a school district, water district, or other special district has assumed increasing importance with the proliferation of jurisdictions and the increasing need for some communities to locate public facilities (airports or sewage disposal plants, for example) within the jurisdiction of another. The doctrine of sovereign immunity (where a jurisdiction has been granted the power of eminent domain) and the proprietary-governmental distinction are again frequently invoked in deciding the applicability of a zoning ordinance. In the past, most courts have favored immunity from the zoning ordinance whenever authorities are exercising a proper governmental function. The case of City of Scottsdale v. Municipal Court of Tempe is illustrative. There the court stated:

Where the power of eminent domain exists, a political subdivision may locate its governmental functions within the territorial limits of another subdivision without regard to limitations created by zoning.... It is generally recognized that zoning restrictions do not apply to the state or any of its agencies vested with the right of eminent domain in the acquisition or use of land for public purposes....The state and its public agencies should not be required to acquire property by eminent domain which otherwise would be purchased merely to avoid restrictive zoning.12

Some recent cases have shown a tendency for the courts to require compliance with zoning unless specific exemption from local zoning has been granted for that particular public function. In St. Louis County v. City of Manchester, it was decided that the statute giving cities power of eminent domain to acquire sewage treatment plants outside their own city limits did not also confer the right to locate plants without regard to the county zoning ordinance.

There are approximately 100 incorporated cities in St. Louis County. To permit each of them or any considerable number of them to ignore valid provisions of the zoning ordinance would tend to nullify and destroy the municipal powers vested in charter counties by the Constitution....13

The school district of Philadelphia was made to comply with the off-street parking requirements of the Philadelphia zoning ordinance in School Dist. of Philadelphia v. Zoning Bd. of Adjustment:

In the first place, we do not consider the imposition of a zoning regulation, enacted for the protection of the health, safety and general welfare of the community, requiring off-street parking to avoid traffic congestion to be regulation of public schools.... In requiring off-street parking facilities, the City here is not "regulating public schools;" it is merely trying to enforce methods of combating the congestion of its public streets by means which it considers reasonably calculated to accomplish this result.14

Likewise, a water authority was held subject to zoning in Pennsylvania in Wilkinsburg-Penn Joint Water Auth. v. Borough of Churchill.15 The court noted that water authorities were not like public utilities and were not subject to any statewide system of regulation, so it could not be assumed that the legislature intended to exempt them from municipal zoning.

The tone of these more recent cases demonstrates a willingness to uphold the authority of local zoning regulations and to recognize that the municipality has the right to make reasonable zoning regulations apply across the board to private and to public facilities and property.


The zoning of public property, public uses, and quasi-public uses, and conformance with the zoning ordinance by the enacting authority and other governments, are two desirable and necessary steps to improved local land-use regulation. Methods of providing for the gamut of public and quasi-public uses have been sufficiently refined so that no local authority should neglect consideration of publicly owned property, public uses, and quasi-public uses in its zoning ordinance. Nor should the local authority feel that it is subject only to the whims of higher governmental authorities who have no regard for local zoning when the location of another government's public facility is at issue. The opportunity and the precedent for action to regulate public uses are available.


1a. Public Property Zoning Problems. July 1958. Planning Advisory Service Information Report No. 112, ASPO, p. 15.

1b. Some uses, e.g., churches and cemeteries, are not typically operated by a government, but in the sense that they are community facilities they have a public nature. Other uses, e.g., schools and parks, can be governmentally operated or not. Some communities distinguish between the governmental operation and the nongovernmental operation of the same activity and regulate them differently in the zoning ordinance. Some discussion of the validity of making this distinction is included in PAS Report No. 112 to which the reader is referred for more information.

2. Russell Sage College v. City of Troy, Supreme Court (N.Y.), 198 N.Y.S. 2d 391, 12 ZD 383, (1960).

3. Public Property Zoning Problems, pp. 7–8, provides more detailed information about the relationship of mandatory referral to zoning in achieving coordination of public facility location.

4. Francis v. Housing Authority of Brevard County, 118 So. 2d 589, 12 ZD 346, (1960).

5. Bryan v. Wilson, 130 S.E. 2d 68, 15 ZD 240, (1963).

6. Zoning Districts. July 1960. Planning Advisory Service Information Report No. 136. ASPO. p. 5.

7. Appeal of Glorioso, Pennsylvania Supreme Court, 196 A. 2d 668, 16 ZD 129, (1964).

8. City of Birmingham v. Scogin, Supreme Court of Alabama, 115 So. 2d 505, 12 ZD 198, (1959).

9. Hunke v. Foote, Supreme Court of Idaho, 373 P. 2d 322, 14 ZD 299, (1962).

10. Comment, "The Applicability of Zoning Ordinances to Governmental Land Use," 39 Texas Law Review 322: February 1961.

11. Note, ''Municipal Power to Regulate Building Construction and Land Use by Other State Agencies," 49 Minnesota Law Review 297: December 1964.

12. City of Scottsdale v. Municipal Court of Tempe, Supreme Court of Arizona, 368 P. 2d 637, 14 ZD 299, (1962).

13. St. Louis County v. City of Manchester, Supreme Court of Missouri, 360 S.W. 2d 638, 15 ZD 71, (1962).

14. School Dist. of Philadelphia v. Zoning Board of Adjustment, City of Philadelphia, 207 A. 2d 864, 17 ZD 238, (1965).

15. Wilkinsburg-Penn Joint Water Auth. v. Borough of Churchill, Supreme Court of Pennsylvania, 207 A. 2d 905, 17 ZD 281, (1965).


"The Applicability of Zoning Ordinances to Governmental Land Use," 39 Texas Law Review (February 1961), 316–29.

Basset, Edward M. Zoning. New York: Russell Sage Foundation, 1936.

"Municipal Corporations — Control Over Public Utilities Through Zoning Ordinances," 42 North Carolina Law Review (April 1964), 761–73.

"Municipal Power to Regulate Building Construction and Land Use by Other State Agencies," 49 Minnesota Law Review (December 1964), 284–301.

Public Property Zoning Problems. ("ASPO Planning Advisory Service Information Report," No. 112.) ASPO: Chicago, July 1958.

"Zoning and the Expanding Public Utility," 13 Syracuse Law Review (Summer 1962), 581–8.

Zoning Districts. ("ASPO Planning Advisory Service Information Report," No. 136.) ASPO: Chicago, July 1960.


Zoning Ordinance of Greater Anchorage Area Borough, drafted 1963.

Planning and Zoning Ordinances, City of Bismarck, North Dakota, 1966.

Zoning Ordinance of the City of Clearwater, Florida, amended to 1963.

City Planning Code of San Francisco Municipal Code, amended to 1964.

Comprehensive Zoning Ordinance, Lawton, Oklahoma, 1964.

Minneapolis Zoning Ordinance, 1963.

Zoning Ordinance, New Haven, Connecticut, 1963.

Zoning Resolution of the City of New York, 1960 as amended.

Oakland, California Planning Code, Zoning Regulations, 1965.

Zoning Ordinance, City of Palo Alto, California, 1963.

Zoning Ordinance of the City of Pasadena, California, amended to 1964.

Zoning Code of the City of Philadelphia, 1962.

Prepared by Charlotte Bingham. Copyright @ 1967 by American Society of Planning Officials.