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). Higher uses are usually permitted in lower districts. When some or all higher uses are excluded from lower zones, the zone is referred to as non-cumulative or exclusive.
- Conditional Uses and Special Exceptions: A category midway between those uses prohibited in a zone and those uses that are permitted. Uses such as hospitals, schools and churches are usually permitted in a zone, but only after special consideration of the project by a local regulatory body. These bodies will evaluate the impact the project will have on the neighborhood and the need for the creation for special restrictions to negate any adverse affects.
- 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 preceded the zoning, they normally are allowed to continue as nonconforming uses. The structure, rather than the use, may be nonconforming, when the new height or bulk regulations are enacted to cover already improved property. Both local governments and courts are reluctant to order an owner to discontinue an activity immediately or to demolish a building that was lawful until the enactment of the new ordinance, because it may constitute a taking of the property.
Because of the undesirability of nonconforming uses, a variety of restrictive techniques have been employed and are generally upheld. The following are examples of the most commonly employed of these restrictive techniques:
- Resumption: If the use is discontinued for a certain period of time or if the structure is destroyed, the owner may be denied permission to resume.
- Enlargement: The owner may be denied permission to enlarge a structure or use that was allowed as a nonconforming use.
- Amortization: The owner may be allowed only a certain number of years to continue the nonconforming features of the structure or activity.
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. Attorneys in this field will be able to help you decide the strength of your potential case, and will be able to explain some of the complex legal ideas behind this particular area of law.