Permissibility of Unlisted Zoning Uses Report

December 2023
Heather Kiningham**, Matt Sehrsweeney**, Larry Borum III**

Over the next several decades, the electricity grid is on track to transition away from reliance on fossil-fuel-burning power plants and toward renewable electricity generation, which will entail the siting and construction of utility-scale renewable electricity generation projects across the country.1 While technical and engineering challenges of such a transition are well understood, one key policy dimension of building these projects is, as yet, understudied: zoning authority. This paper examines the complexities of state and local zoning authority as it applies to renewable energy production. Because renewable energy production is a relatively new category of land use, in many parts of the United States, municipalities and counties lack language in their zoning ordinances adjudicating exactly how renewable energy infrastructure should be zoned. This leaves open potentially important questions about how exactly unlisted land uses are governed, leading us to our central research question: in each state, if zoning ordinances do not explicitly list a certain land use, is it prohibited, permitted, or is there a process by which it must be approved? We sought to investigate the significance of these “silences” in zoning ordinances across the US. The first section of this paper provides background on zoning authority in the United States, briefly outlining the history of zoning laws, the principal doctrines of local government authority, and the degree to which zoning authority is devolved from state to state. The second section of this paper centers on a state-by-state examination of the significance of “silences” in zoning code on renewable energy production as a potential land use.