Setback ordinances are property laws that govern property boundary lines. A setback is the minimum distance from the property line that a structure can be built. Generally, these distances are regulated by zoning laws and restrictions maintained by local municipal governments.

The purpose of a setback ordinance is to prevent a structure from being built too close to another. Additionally, a setback ordinance may govern access to ventilation or light. In other words, prohibiting property from blocking a neighbor’s access or view.  

Setback ordinances may also apply to businesses. They typically govern the minimum distance that the building can be from the road in order to promote safety.

What is Zoning?

Zoning is a system that is used to classify parcels of privately owned real estate. Cities, counties, and states all use zoning to classify property according to its land use.

States have laws, or statutes, to regulate zoning. Cities have ordinances, which are similar to laws, but are less powerful. For example, state laws would trump city ordinances in a dispute.

The two main classifications for property are residential and commercial. Residential includes individual’s residences. Commercial classification is used for businesses. 

Another property classification is industrial, which is used for properties that include factories or other buildings that require special considerations. Additional categories include agricultural and recreational. 

These broad categories also include subcategories. For example, the residential category includes different types of housing such as single-family and multiple-family dwellings.

Zoning disputes may arise for reasons similar to setback ordinances. They may involve a dispute between two private, single-family homeowners, when they have a dispute over where the property line is located. Disputes also commonly occur between a private commercial property and the local city government.

This type zoning dispute typically involves a commercial building that is located very close to a residential neighborhood. Some common zoning disputes include:

  • A commercial business owner’s parking lot is too close to a residential area;
  • A residential owners’ view is obstructed because a commercial building is too tall;
  • A commercial sign is placed so that they clutter a neighborhood;
  • A setback issue. As discussed above, a setback refers to the minimum distance that a building can be located from a property line. The majority of setback ordinances are meant to avoid disputes over access to sunlight or ventilation. They may also be aesthetic in nature, for example, to avoid an overcrowded appearance of a certain type of zone. They may also involve the distance of a structure from the roadway for safety purposes; or
  • Industrial, agricultural or commercial properties may cause noise, air or water pollution to nearby properties.

Where Do I Find Local Zoning Laws and Ordinances?

The best place for an individual to find their local laws is at the office of their city or town government. The offices of the mayor, city attorney, or department of housing can be great places to start. In addition, some public libraries may have local ordinance materials. 

It is also becoming more common for zoning laws to be posted online. If an individual is a member of a gated community or a homeowner’s association (HOA), their covenants, conditions, and restrictions should outline any zoning laws or ordinances that are specific to their neighborhood.

What is a Variance?

A variance is a deviation from the zoning requirements that are currently in place. A property owner may request a variance in some instances. If it is granted, it permits the owner to use their land in a way that is not normally permitted by the ordinance. A variance does not change the active zoning law but waives a requirement of the law.

Examples of when a variance may apply may include:

  • Building a gazebo in a residential backyard;
  • Adding a second story to a structure in a one-story zone; or
  • Requesting that the setback requirements be adjusted in order to fit a structure into an odd-shaped lot.

The steps required to obtain a zoning variance will vary by location. Most jurisdictions have fees associated with permits or zoning variances. An individual can discuss the fee structure with their local municipality or consult with an experienced real estate attorney in their area.

How Do I Prove A Variance is Necessary?

If an individual wants to apply for a variance to change the permitted use of their land, they may be required to prove one of the following:

  • If the variance is granted, the new use of the property will preserve the appearance and ambience of neighboring property;
  • The new use will be applicable only to the individual’s unique piece of property and not to those surrounding it; or
  • The existing restrictions create a serious hardship on the property owner. To determine what constitutes a hardship, a court will examine the circumstances of the individual case as well as the general objectives of zoning in the neighborhood. The court will also examine the nature of the requested change, the effect on the adjacent neighbors, or any practical difficulty of using the property. 

Who Can I Sue if I Have a Dispute Over Setback Issues?

A dispute over a setback issue may involve several different parties. An individual may be able to sue one of the following parties if they have a dispute over a setback rule:

  • A neighbor. For example, if the neighbor’s home, fence, or structure is encroaching upon an individual’s land;
  • A business or corporation. In some cases, a business may cause setback disputes by building a structure near a residential area; 
  • Local government bodies. In these cases, an individual is usually required to file a complaint with a government agency prior to filing a private civil lawsuit.   

A setback lawsuit may also involve interactions between all the previously mentioned parties. For example, a resident and a business may file a lawsuit against a local municipality if they believe a setback ordinance is unfair.

What are the Legal Remedies for Setback violations?

There are several legal remedies that may be available for setback violations. These may include:

  • An injunction to cease building operations, if they have not already begun;
  • An injunction that requires a party to move a structure or a fence;
  • A changes or modifications to property lines; or
  • A damages award, if the violations caused losses or property damage.

A difficulty that arises when attempting to remedy a setback violation is that the structure may already be in place. If so, it may be difficult for the owner to move the structure if it is found to be in violation of setback rules. It may be even more difficult to request that the building be torn down or demolished because it is over the setback distance. 

Because of this, in most cases where the structure is already in place, an appropriate legal remedy is a damages award. This reimburses the party for losses associated with the violation.

Do I Need a Lawyer for Issues With Setback Ordinances?

Yes, it is essential to have the help of an experienced real estate lawyer for any setback ordinance issues. These ordinances may vary from place to place since every city and neighborhood will have different needs. An attorney will help you with any inquiries, complaints, or disputes over setback ordinances. 

A local attorney will be familiar with the ordinances in your area and the steps to take if you have an issue. An attorney will be able to review your case and assist you with filing a lawsuit, if necessary.