Planning is a legal term that refers to the written laws that govern the creation of local planning boards and regulate how land is to be used concerning a general or master land plan. Planning laws typically fall under the umbrella of property laws and regulations.
Many states have laws that create planning districts that, in turn, create a planning commission whose primary function as an agency is to direct and limit the use of land in that district. Then, the local legislative body creates rules that follow the direction of the planning commission.
A general or master plan of a locality is a written document providing the purpose for the zoning and land use ordinances the locality enacts. Generally, a zoning ordinance must conform to the general plan drafted for that locality.
Once again, a land use plan is a written plan implemented by a planning commission that determines how land will be used, allotted, or improved by private or government entities within a specified area. Land use plans may be implemented to ensure that the area’s zoning ordinances are followed.
A well-executed land use plan is necessary for the operation of certain industries, including but not limited to:
- Farming and agricultural development;
- Mining of natural resources, such as rock; and
- Natural gas and oil operations.
Most local city governments will typically have a land use plan in place that aids in structuring how that city operates. For example, a city may have an overall goal to be green. This means that the city will have an environmentally conscious land use plan that practices conservation. Then, businesses in the specified area must adhere to the principles and rules in the land use plan.
What Is Zoning?
In simple terms, zoning determines what types of buildings can be placed in specific areas. Zoning ordinances are written rules that regulate how property can be used when that property is located in a specific location. Zoning laws are intended for land use regulation similar to planning laws and generally consist of the following:
- A zoning ordinance that specifies the regulations applicable to each zone; and
- A zoning map that indicates the zone characteristics of each parcel of land within the community.
Zones may be regulated regarding use, height, and land coverage. Then, within each district or zone, the applicable restrictions should be uniform. Uniformity aims to promote fairness and reduce the likelihood of future zoning issues.
Locations within a zone are commonly defined by geographic location or specific coordinates on a map. In general, zoning locations are limited to areas within cities and counties. This means that the local government can limit and regulate what activities are performed within its jurisdiction. It is important to note that State and Federal governments do not typically engage in land regulations.
The following are the most common types of zones that are associated with land use regulation:
- Use Districts: Typical use districts include residential, commercial, industrial, and agricultural. Use districts may be further subdivided according to the intensity of the permitted use.
- For example, residential use districts are generally divided along a continuum, from the single-family dwelling to the high-rise apartment;
- Height Districts: Building height regulations are among the oldest land use regulations. A community may set different height limits for different parts of town, which may or may not coincide with use and bulk districts;
- Land Coverage: There are numerous examples of land coverage and bulk regulations. The following are the most common coverage limitations:
- Minimum floor space;
- Minimum lot size;
- Floor-area ratio;
- Open space; and
- Cluster.
- Floating Zones: A zoning ordinance may permit a specific type of use but not include it within any of the districts shown on the zoning map. Such a use or zone “floats” until it is then applied to a specific parcel of land; and
- Holding Zones: A community may be unprepared to comprehensively zone its entire area immediately. As such, to restrict development in an area before there has been an opportunity to zone and plan it, the planning board may temporarily zone the land for low-intensity uses.
Who Makes Zoning Decisions?
As mentioned above, most municipalities will have a planning or zoning department that proposes zoning ordinances and oversees zoning and land use hearings. Typically, in most localities, a board of supervisors will be charged with that duty.
The planning or zoning departments will also make decisions regarding variances, conditional use permits, or other issues that may implicate a zoning or land use ordinance.
Generally, the department will have a public hearing where the individuals or groups whose land is affected will be able to present their arguments on whether the zoning or land use ordinances should move forward. After that, any decision made by a zoning department will be subject to review by a court.
Can an Individual Deviate from a Master Plan or Zoning Requirements?
In short, it depends on whether the individual is granted a variance. A variance is a request to deviate from current zoning requirements. If the variance is granted, the variance will permit the owner to use their land in a way ordinarily not permitted by the zoning ordinance. Importantly, variances do not change active zoning laws. Instead, variances waive a specific requirement of a particular zoning ordinance.
If an individual wishes to apply for a variance to change the permitted use of your land, they may need to prove the following factors:
- The new use of the property preserves the appearance and ambiance of the neighboring property;
- The new use applies only to their unique piece of property and not to those surrounding it; and
- The existing restrictions create a considerably serious hardship for them.
When determining what constitutes a hardship, courts will consider the following:
- The circumstances and general objectives of zoning in the requestor’s neighborhood;
- The nature of the proposed change and its effect on the requestor’s adjacent neighbors; and
- Any practical difficulty in using the property.
Once again, zoning codes regulate structures’ size, location, and use within designated areas. If a person wishes to deviate from a regulation, they must apply to the relevant governing body for a variance to change the particular zoning code.
Further, zoning laws vary from state to state and even among municipalities. Because of this, the procedures for applying for a variance will differ depending on jurisdiction. Gated communities and homeowner’s associations may also have additional ordinances to consider.
In general, the legal procedures for obtaining a variance may include:
- Obtaining permission from one’s local governing board;
- Holding a public hearing;
- Making an appearance before the local planning commission; or
- Obtaining permission from one’s neighbors.
In some cases, a person may also wish to apply to the relevant governing body to amend the zoning laws—for example, redefining zoning boundaries or changing a specific area from residential to commercial. Similar to variances, the applicant must show a need for the change and that the change will not adversely affect the surrounding area or master plan.
Do I Need an Attorney for Help With Planning and Zoning?
As can be seen, the laws regarding planning and zoning require a thorough knowledge of local statutes and ordinances. As such, if you have any issues regarding planning, you should immediately consult with an experienced real estate attorney in your area.
An experienced real estate attorney will be able to explain the laws and requirements that govern your situation and represent you at any necessary in-person proceedings.
