Land use and zoning laws usually take the form of zoning regulations enacted by local governments that address how land within municipal or county borders can be developed and used. The creation of zoning regulations is mostly left to agencies of municipal and county governments. State governments and the federal government play a limited role with certain exceptions.
Every major city and, in some places, counties also had adopted zoning ordinances governing how land can be used since 1916 when New York City adopted the first one in the U.S.
Who Decides Land Use Planning Laws?
As a general matter, the federal government does not directly regulate the zoning of property. Instead, local and state government bodies regulate the use of property within their boundaries. However, the federal government indirectly influences how land use is regulated through its decisions regarding the distribution of money for state and local projects. In addition, the doctrine of eminent domain plays a role.
Several entities have authority over how land is used:
- Voters: Voters in a city or county play a role when they elect local officials with authority to manage a local planning board. The role of voters is usually not direct, such as when the community members are allowed to provide input to a planning board about the board’s planned action on a land use issue. The community members do not decide directly whether an action is taken or not; they only provide input;
- State Laws and Regulations: These also play a role that is likely to be indirect;
- Planning or Zoning Boards: Local planning boards and the local officials who manage planning boards may play the most direct role in developing zoning ordinances and enforcing them;
- Regional Agencies: Sometimes regional agencies may be authorized to regulate some regional utility, e.g., regional boards or agencies may have the authority to manage regional transportation infrastructure;
- Homeowner and Condominium Associations: These community associations are authorized by state law and their governing documents to regulate the uses that can be made of property that is owned by the associations and the owners of units located within them;
- Covenants: Restrictive covenants are provisions in a property deed that limit the uses that can be made of the property. They may prohibit certain uses. Restrictive covenants are mostly used by developers of a piece of land, for example, to set neighborhood standards by mandating minimum sizes for houses, setback lines, and appearance requirements;
- Easements: An easement is one person’s right to use the property of another for a particular purpose or to restrict the owner’s rights. For example, an easement might prohibit an owner from building on a parcel of land, which preserves an open green space on the property for the benefit of the public. Or the open space may preserve the view of a feature of the landscape for a neighboring private property.
What Is Zoning?
Zoning laws generally allocate land in particular locations to certain uses. In most localities, the basic land use scheme is the following:
- Commercial zones;
- Residential zones;
- Industrial zones.
Generally, zoning regulations allow only uses and structures that conform to the zone’s character where the uses are to be located. So, for example, a person would not be able to build a hotel in a residential zone.
Zoning regulations may establish additional restrictions on the uses of property within the three main kinds of zones. Among the restrictions may be the following:
- Specific requirements regarding the kind of buildings allowed;
- The location of utility lines;
- Restrictions on buildings that are in addition to the main structure on a parcel of property, building setbacks from
- the streets and other boundaries;
- The size and height of buildings;
- Minimum lot area;
- The number of rooms a structure should have;
- Whether there has to be off-street parking;
- The number of dwelling units that one structure can contain.
In many residential zones in cities and counties today, only single-family residences are allowed. So apartment buildings, townhouses, and condominiums are prohibited. Recently, in light of the nationwide housing shortage, many localities have considered allowing the construction of multi-family residences, i.e., apartment buildings, townhouses, and condominiums, in areas zoned for single-family residences exclusively.
Can I Find Out How My Land Is Zoned?
A landowner can obtain a copy of the zoning map and the zoning ordinances that apply to their land to learn how it is zoned. The government agency’s office that oversees zoning in a person’s city or county should have a copy of the map. A person can check the map for zone designation. Or a person can seek the assistance of zoning department personnel in finding the exact zoning for their property.
What Is Eminent Domain?
Eminent domain is the power of a government, local, state, or federal, to take a person’s private property and convert it to public use. Of course, the government has to compensate the owner for the property. The Fifth Amendment to the U.S. Constitution provides that the government may only exercise its power of eminent domain if the government justly compensates the owner.
The government may exercise the power of eminent domain in one of two ways. The taking may be the actual eviction of the owner by the government in which the government affects a permanent physical occupation of the property. Or a taking by eminent domain may happen when the government restricts a person’s use of their property to the point that it is essentially an eviction and occupation.
In 2005 in the case of Kelo v. City of New London, the U.S. Supreme Court upheld a municipality’s taking of property to facilitate private economic development on the land. The Court reasoned that the development would benefit the general public welfare of the municipality. Further, the Kelo court determined that a governmental claim of eminent domain is justified if the taking is “rationally related to a conceivable public purpose.” This is quite a relaxed standard for eminent domain.
There was concern about the Kelo ruling in many states, and some of them have passed laws restricting their government’s authority to use eminent domain. They have done this by enacting a more limited definition of public use.
What About Planning?
Municipalities and counties often employ a planning process that ultimately results in a comprehensive or master plan for a community’s long-term planning purposes. The master plan is then implemented through local laws, or ordinances, that control zoning, the development of housing subdivisions, plans for streets, plans for public facilities, and the regulation of buildings. Future developers must formulate their construction plans per the plan.
More attention has been paid to regional and statewide planning in recent years. Public officials recognize that what happens in one city will strongly affect neighboring areas and regions, such as traffic management. So, they have seen the wisdom of developing regional plans that offer a comprehensive vision with a single set of regulations.
What If I Learn That My Property Does Not Comply with Zoning Ordinances?
If this happens, a landowner may have several options. One is to apply for a zoning variance, which allows them to use the land in a way that does not comply with applicable zoning ordinances. A landowner would submit their application to some board of their local Zoning Board or Planning Department which would be responsible for making the final decision to approve it, approve it with conditions, postpone it, or deny the proposed variance.
Another kind of use is conditional or special use or special exception. An application for an exception asks for approval for a minor deviation from what the zoning ordinances allow. Special or conditional use must be allowed in an applicable zoning ordinance, but it is not allowed as a matter of right in all locations in a zoned district. A request for one must be subject to special review by the planning commission or zoning board, which decides whether it is appropriate for the property for which it is sought.
Zoning regulations can be challenged. Generally, they must be reasonable based on all relevant factors, such as the needs of the municipality in which it is located; the purpose of any restrictions; the location, size, and the physical characteristics of the land to which the regulations apply. Other factors are relevant as well. The rationale for zoning is to benefit the entire community in ways consistent with a comprehensive plan.
Do I Need the Help of a Lawyer with My Land Use Issue?
If you have a zoning problem or want to know if a use you wish to make of your property is allowed, you want to consult a real estate lawyer. Your lawyer will be able to analyze the zoning regulations, covenants, easement, and possible homeowner association restrictions that may apply to your property. A zoning lawyer can also help if you need a variance or special use permit.
Or, if your state or local government is proposing to take your property through an exercise of its power of eminent domain, again, a real estate lawyer has the expertise to help you avoid the taking, if possible, or at least get the most compensation possible from the deal.
