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 Zoning, Planning, and Land Use Legal Issues

Zoning is how a local government attempts to create uniform neighborhoods and uniform land use in some areas. Controlling how individuals use their property and what they can build on it is one way to do this.

Using zoning powers by a locality has been deemed constitutional by the Supreme Court of the United States. Local governments and municipal codes typically maintain land use and zoning laws.

In a municipality, zoning is used to categorize and separate different land uses into distinct districts. Generally, a local government will create separate districts for the following purposes:

  • Residences;
  • Business; and
  • Industrial.

Several different types of zones can be found in land-use regulations. They include:

  • Use districts, which dictate the type of use permitted within the zone: Use districts consist of: residential, commercial, industrial; and agricultural;
  • Height districts, which provide regulations for building heights: These districts are a type of land use regulation. The height of buildings within a given area is restricted;
  • Land coverage and bulk regulations, which take on various forms: These may include minimum floor space, minimum lot space, floor-area ratio, open space, and cluster;
  • Floating zones: found where a noncompliant use is permitted within a specific zoning area; and
  • Holding zones: restrict development in certain areas before there has been an opportunity to zone or plan it. A planning department within a municipality may temporarily zone the land for low-intensity uses.

Who Makes Zoning Decisions?

The majority of municipalities have a planning or zoning department that proposes zoning ordinances and conducts zoning and land use hearings. In some localities and counties, the board of supervisors is charged with this responsibility.

Planning or zoning departments also decide on variances, conditional use permits, and other issues that may affect a zoning or land use ordinance. Typically, the department will hold a public hearing where the individual or group whose land is affected can present their arguments. Members of the public are also able to express their opinions during the hearing. A court may review a zoning department’s decision.

What if My Land Use Does Not Comply With the Zoning Ordinance?

A general land use plan can be used by those whose land use does not comply with their district’s zoning ordinance. Such uses are generally discouraged. Therefore, a variety of techniques may be used to restrict nonconforming uses. Generally, these techniques are respected.

Examples are:

  • A restriction on resumption: this may occur if the use is discontinued for a certain period of time or if the structure is destroyed: In those instances, the land owner may be denied permission to resume the previous use;
  • A restriction on enlargement: the landowner may be denied permission to enlarge a structure or use it in such a way that was allowed as a nonconforming use; and
  • Amortization: the landowner may be allowed only a certain number of years to continue the nonconforming features of the structure or activity.

If a person owns property subject to a zoning ordinance that prevents them from using their land as they wish, they can circumvent the ordinance by following one of the following methods:

  • A variance;
  • An amendment;
  • Rezoning; or
  • A permit.

A board can grant a variance to a landowner. Landowners can continue to use their property in a manner that is prohibited by zoning regulations. Generally, the landowner must establish that the enforcement of the ordinance will cause unnecessary hardship due to the unique features of the property that make it difficult to use the property as it is currently zoned. In addition, it must be shown that granting the variance will not adversely affect the neighboring properties or the effectiveness of the zoning ordinance.

The local municipal body may amend the zoning ordinance that applies to a property owned by a landowner. The landowner can request a rezoning if that is not approved.
In a few cases, rezoning has been allowed.

Some examples are:

  • The neighbor protest is when a neighbor protests the zoning ordinance: There may be a rezoning amendment in these cases;
  • A mistake or a change in condition: It must be shown that there was a mistake or a change in the condition of the property in question. This is required in some jurisdictions;
  • A legal act: A legislative body makes decisions regarding an amendment or rezoning instead of the local court.
  • Spot zoning: It occurs when zoning appears to give a preferential parcel treatment over others. If spot zoning is found, it may be invalidated as a result.

A special permit can be granted by the administrative board in the area for an individual to violate the zoning ordinance. If one of these remedies has been denied, an individual may challenge the zoning ordinance in court.

Generally, new zoning laws cannot force existing structures or uses to change. Consequently, a structure that existed before a zoning ordinance was passed cannot be deemed illegal and does not need to be modified. The zoning department considers this a nonconforming use.

The Most Common Uses Found in Zoning Ordinances

Although not true of all zoning ordinances, most contain the following features in one form or another:

  • Cumulative Uses: Generally, uses are ranked on a hierarchy running from a single-family residential (highest) down to heavy industrial (lowest). Lower districts usually permit higher uses. If some or all higher uses are excluded from lower zones, it is referred to as a non-cumulative or exclusive zone.
  • Conditional Uses and Special Exceptions: A category midway between those prohibited in a zone and permitted uses. Hospitals, schools, and churches are usually permitted in a zone, but only after a special review by the local regulatory body. They will assess the project’s impact on the surrounding neighborhood and determine whether special restrictions are needed to prevent any adverse effects.
  • Non-Conforming Uses: When zoning is enacted in an already developed area, some existing uses may not be allowed as new uses in the district. However, since such uses pre-date the zoning, they are normally permitted to continue as nonconforming uses.

When new height or bulk regulations apply to already improved properties, the structure, rather than the use, may be nonconforming. Both local governments and the courts are reluctant to order an owner to halt an activity immediately or demolish a lawful building until the new ordinance is enacted, as it may constitute a taking of the property.

What Are Permissible Restrictions?

As a result of the undesirable nature of nonconforming uses, various restrictive techniques have been employed and are generally upheld. Among the most commonly used restrictive techniques are:

  • If the use is discontinued for an extended period or if the structure is destroyed, the owner may be denied permission to resume.
  • An owner may be denied permission to enlarge a structure or use that was allowed as a nonconforming use.
  • The owner may only be allowed a certain number of years to continue the nonconforming features of the structure.

Should I Contact a Property Attorney about My Zoning Questions?

If you have questions or a potential legal matter involving zoning, the advice of a real estate lawyer with experience with zoning could be extremely helpful. In this area of law, attorneys can help you determine the strength of your case and explain some of the complex legal concepts involved.


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