Challenging a zoning ordinance in court requires a showing that there is direct and adverse affects caused by the ordinance. In most jurisdictions, it is required that all available administrative remedies be exhausted prior to challenging the ordinance ?@in court. There are some exceptions to this requirement in cases where the local zoning board lacks the authority to grant relief from the particular restriction in question.
Zoning ordinances are city and county regulations pertaining to land use and development. State and federal governments do not typically engage in land use regulations. The purpose of zoning ordinances is to divide an area or municipality into various zones. The areas of land use that can be regulated through zoning ordinances are the following:
- Residential Land Use: Residential zoning includes single-family residences, suburban homestead, or any other designations. These ordinances can cover issues including whether mobile homes can be on a property, the number of animals allowed at a residence, and whether a property can have a home-based business.
- Industrial Land Use: Industrial zoning ordinances are typically specific to a type of business. Environmental factors include noise issues. This means that industrial zoning ordinances will typically deal with issues such as noise concerns and set-back requirements.
- Commercial Land Use: Commercial land use ordinances regulate the type of business that can be in an area. Particularly the ordinances will regulate office buildings, shopping centers, nightclubs, hotels, warehouses, and perhaps some apartment complexes.
- Agricultural Land Use: Agricultural zoning is used by communities that are concerned about maintaining the economic viability of agricultural industries in the area. Zoning ordinances of agricultural land include limiting the density of development and restricts non-farm uses of land.
- Rural Land Use: Rural zoning ordinances are used for farms or ranches.
- Historic Zoning: Historic zoning ordinances are regulations that prevent the alteration of historical structures from original conditions.
- Esthetic Zoning: Esthetic zoning is popular in upscale communities and covers such regulations as color schemes of homes, landscaping limitations, types of mailboxes permitted, fences, decks, and materials.
- Permitted and Accessory Uses: These ordinances include providing that a hotel property not zoned for a bar can have a bar that is connected to the hotel as a permitted use.
Within these zones, the county or city will incorporate additional restrictions. These restrictions include the type of buildings are allowed, location of utility lines, restrictions on accessory buildings, building setbacks from the streets and other boundaries, size and height of buildings, number of rooms, floor space, and minimum cost of buildings. Residential regulations include restricting property from single-family homes or townhouses. Additionally, in areas of cultural significance, zoning regulations may require that the locales be preserved for historical purposes.
If been denied the ability to develop a piece of land owned due to a zoning ordinance, a person may seek one or more of the following administrative remedies from the zoning board:
- Variance: A variance permits the administrative board to grant a variance of land use when the regulation or zoning ordinance would cause unnecessary hardship. The test for granting a variance requires that the grant of variance would not adversely affect neighboring properties or effectiveness of the zoning ordinance. Also, there must be an unnecessary hardship to the landowner due to the zoning ordinance.
- Amendments: A person may request the zoning board to amend the zoning ordinance to rezone the property. In the past, the following reasons have been deemed sufficient to grant a rezoning: a neighbor protest, a mistake or change of the condition, an administrative act, and spot zoning.
- Permit: The administrative board may grant you a special permit to violate the zoning ordinance.
Once you have sought and been denied one of these remedies, you may challenge the zoning ordinance in court.
In order to repeal a zoning ordinance, it must proven that the person has been negatively affected by the ordinance. This can be proven by demonstrating that the ordinance had the effect of decreasing the value of your property. Additionally, it can be proven if it prevented a person from engaging in your profession on your own property. The court will examine the following factors to determine whether to grant relief or uphold the zoning ordinance:
- The existing uses and zoning of nearby property.
- The effect that the ordinance has on your property value and the value of the nearby property.
- The effect of the ordinance on the health, safety and welfare of the general public.
- The length of time the property has been under the current zoning restrictions.
- The community need/desire to uphold the ordinance.
An experienced real estate attorney can offer the expertise to deal with any zoning problems, including seeking administrative remedies or challenging a zoning ordinance in court.