What Is Land Use and Zoning Law?

If you have ever tried improving your property — perhaps installing solar panels or digging an in-ground swimming pool — you've likely encountered zoning laws. It may have surprised you to learn that just because you own property does not mean you can do whatever you want with it. Land use, zoning, and restrictive covenants regulate what property owners can do on their land.

If you have land use issues, your first step should be contacting a zoning lawyer. They can explain the zoning laws in your area and the steps you'll need to take to effectively comply with regulations in your state and municipality. Large cities like New York and Los Angeles have their own zoning regulations that may differ from county or state regulations.

Land Use and Zoning Laws

Although land use and zoning laws are usually lumped together, they are different. Land use defines usage types, such as agriculture, industry, or transportation. Zoning regulations are how developers and companies put laws into practice.

Land use regulation breaks land into five broad categories:

• Residential, including single-family and multifamily housing
• Commercial, business, and industrial
• Agricultural
• Recreational, such as parks and greenbelts
• Transportation, such as land set aside for roads, highways, and rail lines

Land use law involves management of these areas. For instance, residential land use considers factors such as population density, traffic flow patterns, school district plans, and state affordable housing requirements. Land use must conform with local zoning ordinances and community planning.

Zoning laws affect property use within the designated areas. A zoning ordinance determines which portions of a residential area are single-family dwellings and mixed-use or multifamily dwellings. Zoning laws decide what areas are "heavy industrial," such as refineries, and which are "light industrial," like auto shops.

These laws keep towns and cities organized and maintain property values for owners and businesses. They help ensure uniformity and prevent unfair competition among businesses. They also encourage new development projects through rezoning as property use changes.

Variances, Easements, and Eminent Domain

The local zoning board usually determines zoning land use. The board meets to discuss land development issues in the municipality.

Zoning boards work with city councils and permitting agencies to resolve legal issues that arise with new development proposals, redevelopment, or changes to land use regulations.

Variances

New businesses often fall outside current zoning restrictions. Changes in population as people move into or out of an area may affect zones, as can regulatory changes. For instance, rezoning a commercial area may leave a few office buildings across the street from a residential district.

In these cases, the owner must request a variance from the zoning board. A variance is a permit that allows an owner to use their property in ways prohibited by zoning ordinances. There are two kinds of variances:

• A use variance permits a type of use not otherwise allowed, such as commercial use in a residential zone.
• An area variance permits what would otherwise be a space violation, such as adding a new room that would violate setback requirements.

Getting a variance can be difficult. It's best to consult a land use attorney or someone versed in this area of law. There are very specific criteria needed to obtain a variance. For instance, an area variance must consider any environmental issues, impact on other homeowners, and whether the building conforms with local land use.

Easements

An easement is a legal term for access to another person's property. An easement occurs when an owner of one parcel of property can only reach it by crossing another parcel. Easements include:

• Shared driveways or walkways
• A deeded right to use another's land for recreational purposes
• A utility pole in a backyard

Easements “run with the land," meaning they are part of the property deeds. Easements may also be “implied." If an easement is needed but not specified in the deed, an easement is created by law.

The property that has the easement is known as the servient estate. The holder of the easement may make any use of the easement they wish, as long as it does not “unduly burden" the servient estate. If the owner abandons the easement or if it becomes burdensome on the servient estate, legal action can remove it. This is another situation in which a real estate lawyer is essential.

Eminent Domain

Eminent domain is what happens when local governments and real estate development collide. Eminent domain refers to the power of the government to take private property for public development.

The government first creates a public improvement site plan in an eminent domain action. It must demonstrate that the benefit of the proposed plan outweighs the harm of the forced sale of the property. The U.S. Supreme Court ruled in 2005 that large-scale private business development like a shopping center or a business park is a “public benefit."

Eminent domain may be used for practical reasons, such as removing damaged buildings after a natural disaster, or for environmental reasons, like when the government condemns Superfund sites to relocate the residents. Sometimes historic preservation may be part of the process. If a historic site is in danger of demolition, the government may purchase it to prevent its destruction while conservation efforts continue.

Homeowners whose homes are the subject of eminent domain proceedings have the right to “fair market value" for their property. If they do not wish to accept the first offer, the matter goes to court. If you find yourself in this situation, never challenge the government alone. You will need a real estate attorney whose practice area is eminent domain defense.

Finding a Land Use and Zoning Law Attorney

Real estate law is only one facet of land use litigation. You may need zoning attorneys, eminent domain specialists, and even environmental law practitioners. Regulatory agencies cover many areas of law, and so will your attorney. If you're looking for advocacy, try FindLaw's attorney referral system to reach a land use lawyer near you.