Land Use Planning and Zoning Law

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 Zoning, Planning, and Land Use Legal Issues

Zoning is a manner in which a local government attempts to create uniform neighborhoods and uniform land uses in some areas. This is accomplished by controlling how individuals can use their property and what they can build on their property.

A locality’s use of zoning powers has been approved as constitutional by the United States Supreme Court. Land use and zoning laws are typically maintained by local governments and by municipal codes.

Zoning is used to categorize and separate different land uses into distinct districts within a municipality. In most cases, a local government will provide separate districts for the following uses:

  • Residential;
  • Business; and
  • Industrial.

There are several different common types of zones that are encountered in land use regulations. These 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, which are found where a noncompliant use is permitted within a specific zoning area; and
  • Holding zones, which 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.

What is a General Plan?

A general or master plan of a locality provides the purpose for the zoning and land use ordinances the locality enacts. In general, a zoning ordinance must conform to the general plan in the locality.

A land use plan is implemented which determines how land is to be used, allotted, or improved by private or government entities. This type of plan may be implemented to ensure that the zoning ordinances are being followed.

A well-executed land use plan is necessary for certain industries, including:

  • Farming;
  • Mining; and
  • Natural gas.

The majority of local city governments typically have a land use plan in place that aids in structuring how the city operates. For example, a city may have a goal to be a green city, meaning they are environmentally conscious and practice conservation. 

A land use plan outlines how the city will operate to promote an environmentally friendly development. Businesses in the area must adhere to the principles in the land use plan.

Who Makes Zoning Decisions?

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

The planning or zoning departments also make decisions regarding variances, conditional use permits or other issues that may implicate a zoning or land use ordinance. Typically, the department will have a public hearing where the individual or group whose land is affected will be able to present their arguments. The hearing also permits members of the public to voice their opinions on the issue. A decision made by a zoning department is subject to review by a court.

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

A general land use plan typically provides multiple possibilities for individuals whose land use does not comply with the zoning ordinance for their district. Generally, nonconforming uses are disfavored. Therefore, a variety of techniques may be used to restrict nonconforming uses. They are typically upheld. The most common include:

  • A restriction on resumption, which 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, where the landowner may be allowed only a certain number of years to continue the nonconforming features of the structure or activity.

If an individual owns property that is subject to a zoning ordinance which is preventing them from using their land the way they wish to, they may attempt to circumvent the zoning ordinance through one of the following ways:

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

A variance may be granted to a landowner by a board. It permits the landowner to continue using their property in a way that is prohibited by a zoning ordinance. The landowner must show that the enforcement of the ordinance would cause unnecessary hardship due to unique features of the property which 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 neighboring properties or the effectiveness of the zoning ordinance.

The landowner may request that the local municipal body amend the zoning ordinance that applies to their land. If that is not approved, the landowner may request rezoning of their property.

There are a few instances that have been shown to permit rezoning. These include:

  • A neighbor protest, which occurs when a closely situated neighbor protests the zoning ordinance. In these cases, there may be a rezoning amendment;
  • A mistake or change of condition. In these cases, it must be shown that there was a mistake or change of condition on the land in question. In some jurisdictions, this is a required justification;
  • An administrative act. In some jurisdictions, there is a legislative body that makes the decisions regarding an amendment or rezoning instead of allowing the local court to do so.
  • Spot zoning. This occurs when  zoning appears to confer preferential treatment onto a parcel that is not afforded to others. If spot zoning is found it may be invalidated as a result.

The administrative board in the area may grant an individual a special permit to violate the zoning ordinance. Once an individual has sought one of these remedies and been denied, they may challenge the zoning ordinance in a court of law.

It is important to note that usually, new zoning laws cannot force an existing structure or use to change. Therefore, a structure that existed prior to a zoning ordinance being passed cannot be deemed illegal and is not required to be changed. This is considered a non-conforming use by the zoning department.

Should I Consult a Real Estate Attorney?

Yes, it is essential to have the assistance of an experienced real estate lawyer with any zoning, planning, or land use issues you may encounter. Every jurisdiction has different procedures regarding zoning and land use decisions. In addition, public hearings often required a detailed description of the issue and an argument that embraces both the unique facts of your case and the local laws that apply. 

A zoning lawyer will be familiar with the procedures of the regulating body in your area as well as the local laws that apply to your case. An attorney can review your case, inform you of the land use and zoning options for your business or residence, and assist you in requesting a variance, if necessary.

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