Zoning is how a local government attempts to create uniform neighborhoods and uniform land use in some areas. One way to achieve this is by controlling what individuals can do with their properties.
A locality’s use of zoning powers has been declared constitutional by the Supreme Court. Local governments and municipal codes typically maintain land use and zoning laws.
Municipalities use zoning to categorize and separate different land uses. Local governments generally create separate districts for the following reasons:
- Residences;
- Business; and
- Industrial
In land-use regulations, there are several types of zones. They include:
- Use districts, which dictate the type of use permitted within the zone: Use districts consist of residential, commercial, industrial, and agricultural;
- Height districts, which provide regulations for building heights: These districts are a type of land use regulation. The height of buildings within a given area is restricted;
- Land coverage and bulk regulations, which take on various forms: These may include minimum floor space, minimum lot space, floor-area ratio, open space, and cluster;
- Floating zones: found where a noncompliant use is permitted within a specific zoning area; and
- Holding zones: restrict development in certain areas before an opportunity to zone or plan it. Municipal planning departments may temporarily zone land for low-intensity uses.
An Overview of Growth Control and Zoning
Local governments have begun issuing zoning ordinances that restrict growth rates in certain areas. These growth control ordinances are issued under the local government’s general policing power and must comply with zoning requirements.
The purpose of growth control zoning ordinances is to prevent uncontrolled sprawl, resulting in increased traffic, noise, pollution, demand for parking, and other associated problems.
Are Growth Control Ordinances Legal?
In general, courts have upheld growth control ordinances because their goals of limiting sprawl and its problems rationally relate to the local government’s authority to ensure public health, safety, and welfare.
However, these ordinances must aim to control the timing of development, not prevent it. In order to adequately accommodate a substantial increase in population, local governments must demonstrate that they cannot provide the basic and essential services and facilities. In addition, the growth control ordinance must be part of a comprehensive plan that ensures the normal and controlled growth of the community.
In addition, the local government must demonstrate that the growth control ordinance is reasonable. A zoning ordinance aimed at growth control will be judged on the following factors:
- The cost of extending necessary services and facilities to an increased population
- The existing community’s ability to adjust to the higher tax burden necessary to extend services and facilities
- Resource availability
- The probable use of existing dwellings
- The availability and suitability of undeveloped land in the surrounding areas
- The overall growth of the region in which the community exists
A growth control ordinance can be justified by preserving a community’s rural character.
It is more likely that growth control ordinances based on extensive studies and part of carefully developed plans will be upheld, as will those that are temporary.
Who Makes Zoning Decisions?
In most municipalities, a planning or zoning department conducts zoning and land use hearings. Some localities and counties entrust this responsibility to their boards of supervisors.
Planning or zoning departments also handle variances, conditional use permits, and other issues that can affect zoning or land use regulations. It is common for the department to hold a public hearing where the individual or group whose land is affected can present their arguments. It is also possible for public members to express their opinions at the hearing. A court can review a zoning department’s decision.
The Most Common Uses Found in Zoning Ordinances
Although not true of all zoning ordinances, most contain the following features in one form or another:
- Cumulative Uses: Generally, uses are ranked on a hierarchy running from a single-family residential (highest) down to heavy industrial (lowest). Higher uses are usually permitted in lower districts. A non-cumulative or exclusive zone is one in which some or all higher uses are excluded from lower zones.
- Conditional Uses and Special Exceptions: A category midway between those prohibited in a zone and permitted uses. Hospitals, schools, and churches are usually allowed in a zone, but only after a special review by the local regulatory body. Assessing the project’s impact on the surrounding neighborhood will determine whether special restrictions are necessary.
- Non-Conforming Uses: When zoning is enacted in an already developed area, some existing uses may not be allowed as new uses in the district. Since such uses predate the zoning, they are normally allowed to continue as nonconforming uses.
The structure, rather than the use, may be nonconforming when height or bulk regulations apply to already improved properties. In the absence of a new ordinance, local governments and courts are reluctant to order an owner to stop activity immediately or demolish a lawful building.
What if My Land Use Does Not Comply With the Zoning Ordinance?
Those whose land use does not comply with their district’s zoning ordinance can use a general land use plan. In general, such uses are discouraged. In order to restrict nonconforming uses, a variety of techniques can be used. These techniques are generally respected.
Examples are:
- A restriction on resumption: this may occur if the use is discontinued for a certain period of time or if the structure is destroyed: In those instances, the land owner may be denied permission to resume the previous use;
- A restriction on enlargement: the landowner may be denied permission to enlarge a structure or use it in such a way that was allowed as a nonconforming use; and
- Amortization: the landowner may be allowed only a certain number of years to continue the nonconforming features of the structure or activity.
People who own property subject to zoning ordinances can circumvent the ordinance by following one of these methods:
- A variance;
- An amendment;
- Rezoning; or
- A permit.
A variance can be granted to a landowner by a board. Despite zoning regulations, landowners can continue to use their property in prohibited ways.
A landowner must generally demonstrate that the enforcement of the ordinance will cause undue hardship because the property’s unique features make it difficult to use as it is currently zoned. It must also be shown that granting the variance will not adversely affect neighboring properties or the effectiveness of the zoning ordinance.
The local municipal body can amend the zoning ordinance that applies to a landowner’s property. If the rezoning is not approved, the landowner may request one.
Rezoning is permitted in some cases.
Some examples are:
- The neighborhood protests the zoning ordinance: There may be a rezoning amendment in these cases;
- A mistake or a change in condition: It must be shown that there was a mistake or a change in the property’s condition in question. This is required in some jurisdictions;
- A legal act: A legislative body makes decisions regarding an amendment or rezoning instead of the local court.
- Spot zoning: It occurs when zoning appears to give a preferential parcel treatment over others. If spot zoning is found, it may be invalidated as a result.
An individual can receive a special permit from the administrative board in the area to violate the zoning ordinance. An individual may challenge the zoning ordinance in court if one of these remedies has been denied.
In general, new zoning laws cannot force existing structures or uses to change. A structure that existed before a zoning ordinance was passed is not illegal and does not need to be modified. This is a nonconforming use, according to the zoning department.
Can a Lawyer Help Me With My Growth Control Ordinance Problem?
A real estate attorney can advise you on how a growth control ordinance may affect you as a current or future landowner or developer. It is also possible to challenge a new or pending zoning ordinance with the help of an attorney.
