Options for Zoning Relief

Zoning is the government regulation of land use. It's the principal urban planning tool municipalities use. Zoning laws help an area grow in an orderly and public-interest way.

State governments have the power to zone for the advancement of health, morals, safety, and general welfare of the community. State laws, in turn, grant this power to local governments, enabling them to control the character of a particular location.

When zoning affects a property owner's real estate, the owner has options that fall into two basic categories:

1. Ask the government to make an exception for the landowner
2. Challenge the zoning ordinance itself as improper or unconstitutional

Multiple routes may be appropriate depending on the property owner's needs. So, a property owner should consult an experienced land use attorney before challenging a zoning decision.

Nonconforming Uses and Variances

When a zoning ordinance gets passed, it may change the character of the zone where a landowner's property lies. For example, land use laws to promote affordability may alter the zoning code for low-income redevelopment. A city council planning commission may create zoning districts for high-occupancy dwelling units. These kinds of land-use regulations may reduce homelessness but drive down property values.

Here, an affected landowner whose property has lost value has several options. Suppose the property owner wants to continue commercial activity even though their business now falls outside the new zoning map. Occasionally, property that has been used in a certain way may continue to be used in that manner even after a new ordinance gets passed. This is a "continuing existing use" or "lawful nonconforming use."

It is generally held that an owner may continue uninterrupted use when:

1. They've made substantial expenditures in construction or
2. Where an existing business (nonconforming use) operates on the property

The disclaimer is that this rule depends on the effect of the continuing use on the public. So, if the public benefit of the new zoning ordinance is greater than the detriment to the landowner, the city can prohibit the nonconforming use. Also, if the operator discontinues the use at any point, it will no longer qualify for an exemption. Additions or expansions of the nonconforming use are almost never allowed.

Another option for landowners affected by a zoning decision is to request a variance. There are two kinds of variances. One addresses the use of the land, while the other deals with structures built on the land. In either case, the landowner must show that conforming to the zoning ordinance would create undue hardship. Some states further require that granting a variance is not detrimental to the public interest.

A "conditional use permit" is like a variance. The court will issue a special permit for a use that is:

• Expressly identified in the ordinance
• Stated as a qualifying exception to the zoning rule at issue

For example, a church in a residentially zoned affordable housing area may have a permit to operate there. A library or public health facility may likewise be permitted in an area otherwise zoned for single-family homes. This is not the same as a real property building permit for general construction purposes.

Challenging the Zoning Procedure

Another action an aggrieved landowner might take is challenging the zoning ordinance itself. One way to do this is to challenge the zoning ordinance's adoption process. Some states require that zoning ordinances follow a "Master Plan." A master plan or comprehensive plan is an area-wide map that:

1. Is based on a variety of social and economic factors
2. Displays current land use and
3. Projects future uses

All local zoning done after the adoption must conform to the master plan when:

1. State law requires that a locality adopt a master plan or
2. The locality voluntarily adopts one

People can challenge a zoning ordinance if it does not conform to the master plan, which means it does not meet the incentives and goals identified in the plan.

Likewise, the 14th Amendment of the U.S. Constitution protects landowners. It states that no state shall "deprive any person of life, liberty, or property, without the due process of law." This means that a state must give a person a chance to speak in a public hearing before it deprives them of certain interests.

Due process rights are violated when:

1. A statutory procedure outlining the process required for passing a zoning ordinance has not been followed or
2. Enough notice and hearing have not been provided to those whose property interests will be affected.        

The 'Taking' Argument

A landowner suffering under a changed zoning ordinance may also argue that the government has effectively taken the property owner's land. States have the right to regulate how people use land to protect residents' health, safety, and welfare. It is generally assumed that local governments are most familiar with the needs of those in the immediate area. For this reason, local government decisions about zoning regulations get a great deal of deference.

But, the Constitution limits government power through the "Takings Clause," which states that if a government takes private property for public use, it must fairly compensate the owner.

So, a zoning regulation may be unconstitutional when:

1. It denies a property owner all economically viable use of land or
2. It does not substantially advance legitimate state interests.

The clearest example of a taking is when the government physically infringes on a landowner's property. But without permanent physical encroachment, the property owner must be deprived of all economically viable land use before compensation is granted.

Courts will weigh the benefit to the public against the economic harm to the landowner if a property owner can no longer use the land for its current purpose but has alternative uses available.

Your Legal Options

State and local governments can regulate land use to promote health, safety, and welfare. Their actions in exercising this power through zoning regulations are generally presumed valid and are usually upheld in the face of a legal challenge. But an aggrieved landowner or homeowner has options.

One approach is to get a waiver for the property's intended use. Another is to challenge the zoning regulation itself. The options discussed above are not exhaustive, and it is a good idea to consult a land-use and zoning attorney to evaluate your situation and explain your legal options.