Land Use and Zoning Basics

The most common form of land-use regulation is zoning. Municipalities use zoning regulations and restrictions to control and direct property development.

Members of the general public don’t usually have much reason to think about zoning or other land use issues. But this can change if these issues directly impact your home or business.

If a county or city zoning decision is affecting you and your property rights, you may feel both overwhelmed and frustrated. Learning about zoning laws is a good place to start. You can also speak with a real estate attorney about your options for relief. 

What Are Zoning Regulations?

Local governments, including city councils, use zoning to serve the needs of municipalities. Since New York City adopted the first zoning ordinance in 1916, zoning regulations have been adopted by almost every major urban area in the U.S.

Purpose of Zoning

The basic purpose and function of zoning is to divide a municipality into the following districts (or zones):

• Residential
• Commercial
• Industrial

These zones are mostly separate from one another, with the use of property within each district being reasonably uniform.

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

Specific Restrictions

Within these three main types of districts, there will be additional detailed restrictions, including:

• 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

These restrictions may also cover:

• Frontage of lots
• Minimum lot area
• Front, rear, and side yards
• Off-street parking
• Number of dwelling units

Regulations may restrict areas to single-family homes, multi-family dwellings, or townhouses. In areas of historic or cultural significance, zoning regulations may require that those features be preserved.

Regulation of Development in Your Community

Land-use regulation is not restricted to controlling existing buildings and uses. In large part, it is designed to guide future development. Municipalities commonly follow a planning process that results in a comprehensive or master plan.

A comprehensive plan creates an official map for a municipality. It is put into effect by ordinances controlling:

• Zoning
• Regulation of subdivision developments
• Street plans
• Plans for public facilities
• Building regulations

Future developers must plan their subdivisions in accordance with the official zoning map or plan.

In recent years, an increasing emphasis has been placed on regional and statewide planning. After all, the actions of one municipality will strongly affect neighboring cities, sometimes in contradictory ways. Broader planning initiatives allow the creation of a regional plan that offers one comprehensive vision and one set of regulations.

Limits on Zoning Regulation

Land-use and zoning regulations restrict the rights of owners to use their property as they otherwise could (and often want to). That’s why they can be controversial. Plus, it’s hard to exactly define the scope and limits of governments’ ability to regulate land use.

Courts have held that a zoning regulation is permissible if:

• It is reasonable and not arbitrary
• It bears a reasonable and substantial relation to the public health, safety, comfort, morals, and general welfare
• The means employed are reasonably necessary for the accomplishment of its purpose

These factors are fairly subjective. There is a lot of room for disagreement, and sometimes it leads to litigation.

The question of how far land-use regulations may go is difficult to answer in this area of law. Excessive regulation may violate the constitutional prohibition against taking private property for public use without just compensation.

Challenges to Zoning Regulations

There are many other restrictions on government power to regulate land use. Often, these restrictions provide a basis for challenging regulations.

Reasonability of Zoning

Zoning ordinances must be reasonable based on all factors involved, such as:

• The reasonable needs of the municipality
• The purpose of the restriction
• The location, size, and physical characteristics of the land
• The character of the neighborhood
• Their effect on the value of the property involved

The rationale behind zoning is that it promotes the good of the entire community in accordance with a comprehensive plan. For example, it may promote homeowner safety and aesthetics by setting:

• Minimum lot sizes
• Floor area ratios
• Building heights in residential zones

Zoning rules may also protect property owners in residential zones who rely on affordable housing.

Spot Zoning

Not all types of zoning pass legal muster. For instance, spot zoning is usually illegal. It involves zoning individual parcels of property differently from surrounding property. It is done primarily for the private interests of the property owner so zoned. Spot zoning is subject to legal challenges. However, it may be permissible as a reasonable basis for distinguishing a parcel from surrounding parcels.

Discriminatory Zoning

Restrictions also can’t be based solely on race or occupancy of property. If a zoning rule discriminates against a racial or religious group, it can only be upheld if:

• The state demonstrates an overwhelming interest
• The interest can be served no other way

Appealing a Zoning Decision

In many jurisdictions, statutes have created boards of zoning appeals to handle these issues. These are quasi-judicial bodies that can conduct public hearings.

Planning commissions may also hear issues regarding local zoning laws from:

• Witness testimonies
• Owners of different types of businesses
• Residents in residential neighborhoods
• Others affected by zoning districts

You should be aware of the complexity of zoning law and the specialized nature of appeals. An owner who contests a zoning requirement is ill-advised to try to argue their case without legal assistance.

Alternatives to Zoning Challenges

The government must also be responsive to citizens’ 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 both of the following:

• The hardship caused by a certain zoning classification is quite substantial
• 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:

• Area: An area variance usually involves some physical oddity of the land that makes construction in conformity with zoning restrictions difficult or impossible. The relief granted by an area variance is relaxing zoning restrictions to make construction possible.
• Use: 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 for residential use. But it might not allow a junkyard in the same area.

Nongovernment Restrictions on Property Use

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

Restrictive covenants are provisions in a deed limiting the use of the property and prohibiting certain uses. For example, they may disallow home-based businesses from operating on a piece of land.

Land developers use restrictive covenants to establish:

• Minimum house sizes
• Setback lines
• Aesthetic requirements thought to enhance the neighborhood

Easements

Easements are rights to use the property of another for particular purposes. Easements may also meet public objectives for types of land use such as:

• The preservation of open space, landscapes, and conservation
• Industrial uses in commercial zones that generate tax revenue
• Mixed uses that benefit commercial and residential areas simultaneously

For example, an easement might prevent someone from building on a parcel of real property. This leaves the property untouched. It preserves an open green space for the benefit of the public as a whole.

Get Legal Help With Your Land Use and Zoning Questions

Perhaps you have questions regarding zoning designations or building permits. Maybe you are looking at property for a new business or have other land use and zoning law questions.

An attorney should be able to help. Contact a land use and zoning lawyer near you to get your questions answered. They can provide you with valuable legal advice for your real estate endeavors.