Land Use and Zoning Practices

Zoning is an important aspect of urban planning. The government uses zoning laws to regulate the use of land and create incentives for the redevelopment of private property. Zoning initiatives can also promote the government’s goals to accommodate:

• Aesthetic beauty, such as open spaces in dense cities
• Historic preservation of old buildings and landmarks
• Environmental protection of natural locations
• New needs and priorities of the community
• Affordable housing and employment opportunities
• Food and healthcare access
• Changes in population growth, density, and economic status

Members of the general public don’t usually have much reason to think about zoning or other land use issues. But this can change when these issues directly impact a person's home or business.  If a county or city zoning decision is affecting you, you may feel both overwhelmed and frustrated.  However, understanding the government’s perspective on zoning can help you overcome these challenges.

Zoning Rules the Government Must Follow

Zoning by city and county governmental units is part of a municipality's police power.  Police power is a city’s ability to regulate advancing and protecting:

• Public health and safety
• Community morals
• The general welfare of the community as a whole

Zoning regulations will only be upheld when deemed a valid exercise of a municipality's police power. In most states, zoning ordinances must be enacted within the parameters of state law and private property rights. The government balances these interests by establishing:

1. Zoning and planning commissions; and
2. Local zoning ordinances by those commissions

The government must follow certain procedures before enacting zoning regulations.  Examples of such required procedures are:

• Due diligence studies or comprehensive plan studies of population and land use patterns
• Public notice and holding of public hearings
• Avoid discrimination while broadly serving the public good
• Very clear and specific regulations that are enforceable under police power
• Reasonable penalties for violations

Challenging Government Zoning Regulations

Parties challenging zoning regulations may often argue that:

1. They did not receive notice of the proposed zoning; and
2. They did not have the opportunity to participate in the public hearing

Challenges to a zoning regulation may be brought if it wasn’t enacted within the scope of the law. When challenged, the validity of a given zoning regulation is examined. A court will question whether the decision was made in an unreasonable, arbitrary, or capricious manner.  A landowner challenging zoning may argue that:

• A zoning regulation has changed the character of their property in a way that deprives a private property owner of reasonable use of the property

For example, suppose a mixed-use building in New York City is unusable after a zoning change. The new zoning law requires all property in the neighborhood to be for residential use only. An owner of a mixed-use building will argue that the new zoning law has resulted in a "taking" of their property.

Government takings are regulated under eminent domain laws. The U.S. Supreme Court has interpreted these laws to prohibit the government from taking property without just compensation.  In such cases, a property owner will seek monetary compensation against the government through an inverse condemnation lawsuit.

Alternatives to Zoning Challenges

The government must also be responsive to its citizenry’s requests for:

• Amendments
• Variances
• Permits

A zoning board will generally have an application review process that looks at development plans and decides how to respond to these accommodation requests.

Amendments

If a successful challenge is unlikely, an affected landowner instead might try to get the zoning regulation amended. Usually, however, rezoning requires showing that there has been a change in the character of an area.  It’s also important that the interested landowner show that:

1. The hardship caused by a certain zoning classification is quite substantial, while
2. The corresponding positive impact of the zoning on the general public is minimal. 

It’s not necessary to show that the impact of the zoning is so extreme that it results in a "taking" of the property, as discussed above.

Variances

Another way to seek relief from a zoning regulation is to obtain a variance. Variances are granted when the zoning authority finds that "unnecessary hardship" or "practical difficulties" will result without approval.  This has been interpreted to mean that the hardship conditions must be peculiar to and uniquely associated with the specific land use in question.

There are two kinds of variances: use and area variances. An area variance usually involves:

• Some physical oddity of the land making construction in conformity with zoning restrictions difficult or impossible

The relief granted by an area variance is relaxing zoning restrictions to make construction possible. A use variance allows the property to be used in a manner not permitted by the zoning.  For instance, a use variance might allow a commercial operation on land zoned as residential.

Permits

A "conditional use" or "special use" permit is another alternative to challenging zoning regulations. Such relief may be outlined in the zoning ordinance itself. It will be allowed when the interested landowner can demonstrate that the conditions specified in the ordinance have been met.  A permit must not conflict with the overall scheme of the neighborhood where the zoning ordinance governs land use. This usually involves finding compatibility with the surrounding areas and the type of land development already existing in that area.

For example, a special use permit might:

• Allow the development of a park/recreational area in an area zoned residential, but not allow the establishment of a junkyard in the same area

The Best Lawyer for Land Use Development

Perhaps you’re a single-family homeowner, or you’re handling commercial real estate development projects. Either way, you’ll want the best law firms on your side to give you legal advice on real property matters. If you’re facing challenges involving land use regulations, a land use and zoning attorney may be able to help. They can help you navigate the regulatory aspects of real estate development and ensure your rights are protected. A lawyer skilled in zoning practices can also help you challenge the city or county zoning regulation negatively impacting you.