FAQ - Environmental Law
Land use and zoning law involves the regulation of the use and development of real estate. The most common form of land use regulation, and the best known, is zoning. Zoning regulations and restrictions are used by municipalities to control and direct the development of property within their borders based on a comprehensive or master plan. New York City adopted the first zoning ordinance in 1916, and since then, zoning regulations have been adopted by virtually every major urban area in the United States.
While land use and zoning law is intended to eliminate conflict, disputes do sometimes arise over restrictions placed on land use or the use of certain property in a manner for which it was not zoned. When such disputes arise, attorneys experienced in land use law can assist the disputants in reaching a fair outcome.
Land Use and Zoning Laws Define How Property May Be Used.
The basic purpose and function of zoning is to divide a municipality into residential, commercial, and industrial districts (or zones), that are for the most part separate from one another with the use of property within each district being reasonably uniform. Within these three main types of districts there generally will be additional restrictions that can frequently be quite detailed. Restrictions may contain specific requirements as to the type of buildings 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 or area and cubic feet, and minimum cost of buildings. They may also regulate frontage of lots; minimum lot area; front, rear, and side yards; off-street parking; the number of buildings on a lot; and the number of dwelling units in a certain area. Regulations may restrict areas to single-family homes or to multi-family dwellings or townhouses. In areas of historic or cultural significance, zoning regulations may require that those features be preserved.
Land use regulation is not restricted to controlling existing buildings and uses; in large part, it is designed to guide future development, often with environmental impact in mind. Municipalities most commonly follow a planning process that ultimately results in a comprehensive master plan and in some states the creation of an official map for a municipality. The master plan is then put into effect by ordinances controlling zoning, regulation of subdivision developments, street plans, plans for public facilities, and building regulations. Future developers must plan their subdivisions in accordance with the official map or plan. In recent years, an increasing emphasis has been placed on regional and statewide planning. Recognizing that the actions of one municipality will strongly affect neighboring cities, occasionally in conflicting and contradictory ways, these planning initiatives allow the creation of a regional plan that offers one comprehensive vision and one set of regulations.
Land use and zoning regulations restrict the rights of owners to use their property as they otherwise could (and often want to), and are at times controversial. Additionally, the scope and limits of governments' ability to regulate land use is hard to define with specificity. Courts have held that a zoning regulation is permissible if it is reasonable and not arbitrary; if it bears a reasonable and substantial relation to the public health, safety, comfort, morals, and general welfare; and if the means employed are reasonably necessary for the accomplishment of its purpose. Given the subjective nature of these factors, there is significant room for disagreement, and on occasion litigation.
One extremely difficult question presented in this area of law is how far land use regulations may go without running into the constitutional prohibition against taking private property for public use without just compensation. Recent court decisions have made it more difficult for municipalities to require that land developers give up part of their property for public purposes, such as access to lakeshores, sidewalks, access roads, and parks through the use of statutory regulation. These cases serve to define the point at which government demands for control over the land become such that it must compensate the owner by exercising its power of eminent domain and condemning the property.
There are numerous other restrictions on the power of government to regulate land use, any of which may provide a basis to challenge such regulations. Zoning ordinances must be reasonable based on all factors involved, such as the need of the municipality; the purpose of the restriction; the location, size, and physical characteristics of the land; the character of the neighborhood; and its effect on the value of property involved. The underlying rationale is that it promotes the good of the entire community in accordance with a comprehensive plan. Spot zoning of individual parcels of property in a manner different from that of surrounding property, primarily for the private interests of the owner of the property so zoned, is subject to challenge unless there is there is a reasonable basis for distinguishing the parcel from surrounding parcels. Restrictions based solely on race or occupancy of property are not permitted, and a classification that discriminates against a racial or religious group can only be upheld if the state demonstrates an overwhelming interest that can be served no other way.
In many jurisdictions, statues have created boards of zoning appeals to handle these issues. These are quasi-judicial bodies that can conduct hearings with sworn testimony by witnesses and whose decisions are subject to court review. Given both the complexity of zoning law and the specialized nature of zoning appeals boards, an owner who contests a zoning requirement is ill advised to try to argue his case without legal assistance. The members of the board, the municipal attorney, and the planning official involved in the process have substantial experience, knowledge of the law, and a tendency to favor their interpretations of the ordinances, and an owner who cannot bring equivalent legal experience to bear on the problem will be at a substantial disadvantage.
Not all land use restrictions are created by governments. Land developers may also incorporate restrictions in their developments, most commonly through the use of restrictive covenants and easements. Restrictive covenants are provisions in a deed limiting the use of the property and prohibiting certain uses. Restrictive covenants are typically used by land developers to establish minimum house sizes, setback lines, and aesthetic requirements thought to enhance the neighborhood. Easements are rights to use the property of another for particular purposes. Easements also are now used for public objectives, such as the preservation of open space and conservation. For example, an easement might preclude someone from building on a parcel of land, which leaves the property open and thereby preserves an open green space for the benefit of the public as a whole.
The theory behind state and local zoning ordinances is that uses within a particular area should be uniform. While this system generally works well, obviously there will on occasion be the need for exceptions to the general rule. Depending on the needs of the individuals involved, and the impact on the neighborhood as a whole, it may be possible to change the zoning on a particular property by obtaining a variance. A variance is permission to depart from the requirements of a zoning ordinance in one or more particulars. Generally, a variance request is granted or denied through administrative action. Variances can be divided into area variances and use variances.
An area variance may be requested where the use is permissible, but does not quite fit the property. For example, if an owner wanted to add a deck to his or her home that would violate the minimum setback requirements of the zoning regulation, or wanted to build a two-story garage, which exceeded the height requirement, an area variance would be required. By contrast, the use variance relates to a use of the property that is otherwise impermissible in the given zone. If, for example, a landowner wanted to build a grocery store in a locality zoned exclusively for residential purposes, a use variance would be required. Generally, a use variance will be harder to obtain than an area variance. The land owner requesting the variance must show undue hardship that is not self-imposed, and must demonstrate that the variance would not harm the public welfare, would not have an excessive impact on the general zoning plan, or would not adversely impact surrounding property values. The requirement that any hardship not be self-imposed is of particular significance. The purpose of this requirement is to prevent an owner from building a nonconforming structure and then seeking a variance for it on the grounds that it would be a hardship to tear it down.
Land use and zoning laws are enacted for the protection of the environment and the public. Despite these goals, conflicts sometimes arise over the permissible use of certain property. In such cases, an experienced land use and zoning lawyer can assist you with resolving the conflict in the most expedient and fair manner possible. Attorneys experienced in real estate and environmental law can help achieve the outcome that best suits your needs.
Copyright © 1994-2006 FindLaw, a Thomson business
DISCLAIMER: This site and any information contained herein are intended for informational purposes only and should not be construed as legal advice. Seek competent legal counsel for advice on any legal matter.