Some opponents of the adult-use zoning ordinances passed by the Northampton City Council on November 2 have been arguing that they constitute illegal “spot zoning” because the ordinance was partly motivated by opposition to a specific business, namely Capital Video’s plans for a large porn shop at 135 King Street. They say that the 1,000-square-foot threshold for adult material unfairly treats Capital Video differently from other businesses in town that include such material in their inventory. This is a complete misunderstanding of the term “spot zoning”.
Spot zoning is a zoning reclassification that creates a small zone of inconsistent use within a larger zone, for the benefit of the individual property owner, and with no objective basis for treating that parcel differently from its surroundings. Courts may invalidate such piecemeal zoning if it appears that the city has given the landowner preferential treatment to the detriment of his neighbors. [See Real Property in a Nutshell, 4th edition (St. Paul: West Group, 2000); Gary Taylor, “Removing Spot Zoning from the Fabric of Zoning Practice” (PDF), Michigan State University Public Policy Brief, 2004.]
The issue often arises when residential neighbors object to the rezoning of an adjacent parcel for commercial use, as was the case in Rando v. Town of North Attleborough, 692 N.E.2d 544 (Mass. App. 1998). Homeowners sued to overturn a zoning amendment that had extended the nearby commercial strip to permit a developer to build a shopping mall, in exchange for his economic concessions to ease the impact of increased traffic. In rejecting their claim, the Land Court observed, “Spot zoning occurs when there is a ‘singling out of one lot for different treatment from that accorded to similar surrounding land indistinguishable from it in character, all for the economic benefit of the owner of that lot.’ Whittemore v. Building Inspector of Falmouth, 313 Mass. 248, 249 (1943).” The court found that the rezoning benefited the general public as well as the developer, and therefore allowed it to stand.
Although spot zoning cases usually involve zoning that treats a landowner better than his neighbors, the objection might apply just as well to the reverse scenario, where one parcel is singled out for worse treatment without a rational basis other than the city’s animus against the owner. Either way, this principle is inapplicable to the recent Northampton ordinance, which does not discriminate among identical parcels in a zone, but imposes new restrictions on all the land within that zone. The City Council’s finding that the size of an adult business increases the severity of its secondary effects on the neighborhood is enough to make the 1,000-square-foot rule survive rational-basis review. In any event, that would not be a spot zoning claim, but a general Equal Protection Clause claim that Capital Video was not being treated the same as other media retailers.
We note that cities have only two options when it comes to zoning of problematic businesses: either pass comprehensive restrictions ahead of time, or wait till there is an imminent threat. Had the Northampton City Council taken the former course 10 years ago when the nude dancing ban was on the table, and enacted adult-use zoning similar to the ordinances that many other Massachusetts towns have passed, the same people who are now alleging “spot zoning” would have accused the Council of overreaching to combat imaginary dangers. Legislation does not occur in a theoretical vacuum, nor do cities have infinite time to react to changing conditions. Zoning changes are often made in response to particular development proposals. The recent ordinance is no different from thousands of other such amendments that have withstood court challenges.