Zoning

Statutory Uses

Over the past 20 years, the legal tool that the courts used most often to determine whether post-secondary institutions enjoyed immunity from local zoning control is interpretation of statutory language about “uses” for which immunity is granted. Supplemental to this legal test is the interpretation of local municipal ordinances created under powers delegated to local governments by state statutes.

In interpreting statutory language, what state law describes as protected uses is critical. For example, while Wisconsin protects all “governmental uses,” from local zoning, New York limits that protection to “educational uses.” Even more narrowly, California restricts protection from local zoning laws to “classroom uses.”

An example of interpretation of the very broad language under the Wisconsin statute, “governmental uses,” can be found in Board of Regents of University of Wisconsin System v. Dane County Board of Adjustment (2000). When university officials chose to erect a radio tower for a student-run radio station, the county board of adjustment denied their request to do so. On further review of an order in favor of the university, an appellate [Page 538]court affirmed that the institution could proceed as its officials had planned, because the radio tower was a governmental use under the statute.

As described above, New York protects “educational uses” from local zoning laws. When Dowling College in Islip, New York, chose to provide its students with catering services and to provide driver's education for nonmatriculated students, the town of Islip attempted to intervene. The town unsuccessfully argued that because both activities were outside of the scope of the statutory language, they were not educational uses. In affirming an order in favor of the college, an appellate court expansively included a range of activities for educational institutions, including “social, recreational, athletic, and other accessory uses (that) are reasonably associated with their educational purposes” (Town of Islip v. Dowling College, 2000, p. 161).

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