A Lot at Stake: IJ Battles Restrictive Zoning

Art Yatsko had a modest dream. Tiring of the harsh New England winters in his native Rhode Island, he envisioned a sunny retirement in Florida. To make that dream a reality, in 2006, he bought an undeveloped residential lot in a quiet community in North Port, Florida, a growing suburb on the west coast of the state. The lot was perfect to accommodate the small home he’d envisioned: a one-story house with room for a pool and an extra bedroom for the grandkids.

North Port—and its zoning officials—had other plans. Even though Art’s property was zoned for a single-family home (and always had been), North Port recently decided that single-family homes were not generating enough tax revenue for its coffers. So, to enhance its tax base, North Port rezoned Art’s neighborhood, converting it from a single-family neighborhood into a commercial corridor. 

This is not the sort of “upzoning” that IJ applauds. Rather than allow additional commercial activity and stop there, North Port went one step further. It prohibited the only existing use in the neighborhood: single-family homes. Bizarrely, this means that the existing homes may now be neighbored by night clubs, gun ranges, and other businesses—just not new houses.

Whatever the government’s aims, banning single-family homes does not serve those interests.

Art joined with IJ to challenge the constitutionality of North Port’s zoning code. After all, if there remains any limitation to the zoning power, it must be that local governments cannot arbitrarily prohibit a harmless and traditional use, like a typical house, when that use is compatible with the surrounding neighborhood.

For loyal followers of IJ, the legal framework that courts typically apply when weighing a zoning challenge is familiar: the rational basis test. For decades, IJ has argued that the rational basis test requires more than just blind deference from the courts to the decisions of bureaucrats. And while we intend to argue that again here, we have a unique opportunity to revive a dormant U.S. Supreme Court decision from nearly a hundred years ago that says Art should win.

In 1928, in Nectow v. Cambridge, the Court struck down a zoning ordinance on the basis that the challenged zoning code made illegal a perfectly sensible and compatible use. As the Court explained, that meant that the ordinance did not bear a substantial relationship to any legitimate government interest. 

That is exactly what we’re arguing in North Port. Art’s desired home is the only use that makes sense in the existing neighborhood. Whatever the government’s aims, banning single-family homes does not serve those interests.

Nectow has never been overruled. And its reinvigoration has long been a dream for property rights advocates like IJ. Nectow is still the law of the land. Getting a court to say as much will mark a monumental step toward greater property rights protections for landowners battling overzealous zoning nationwide.

Ari Bargil is an IJ senior attorney.