Basics of Zoning Laws

Zoning ordinances and regulations are laws that define how you can use your property. Cities, counties, townships, and other local governments adopt zoning plans in order to set development standards to assure that land is used for the common good.

Zoning Overview

Zoning laws come into play on every single property regardless of how big or small. If you are thinking about buying property or making improvements to property you already own, make you understand the zoning restrictions before you commit to anything.

Property is zoned into commercial and residential uses, so a commercial building cannot be built in a residential neighborhood and vice versa without a change in zoning ordinances.

Zoning changes on property is a very difficult process. It requires a process of giving public notice and then having a variance approved by government agencies that oversee enforcement of the zoning plan. Opposition to zoning changes by neighbors and other interested parties can be fierce.

You can find out how property is zoned by contacting your local planning agency; or use the state and local search engine to find if your city or county has zoning ordinances online. Your local planning agency can also explain what you would need to do to get a variance.

Before getting too involved in a zoning issue, it would be a good idea to hire a local land use attorney to help you through the process.

Zoning Restrictions

Use requirements refer to how property can be used. Typical zonings categories include:

• Residential
• Commercial
• Industrial
• Agricultural
• Recreational

These categories usually break down into further subcategories. For example, there are subcategories for single-family (i.e., residences) and multiple-family (e.g., apartments or condominiums) residential use.

Zoning laws will set forth many use restrictions, such as:

• the height and overall size of buildings
• their proximity to one another
• what percentage of the area of a building lot may contain structures
• what particular kinds of facilities must be included with certain kinds of uses

For example, zoning ordinances will typically limit the number of stories and total height of a building, require a certain number of parking spaces for a commercial building, and require a driveway and garage on a suburban residential property.

The bulk requirements of a zoning ordinance refer to:

• the height and size restrictions on buildings including the number of stories in a building
• the square feet of space which a building provides
• the percentage of area it covers on a building lot
• the minimum lot size requirements, if any

The setback and side-yard requirements of a zoning ordinance refer to the distance between the front and back property lines and from the side property lines.

Subdivisions

Land is divided up into legal parcels. If you own land and want to divide it up, you have to go through an authorization process to create new legal parcels.

Most zoning ordinances place limitations on a property owner's ability to subdivide land. There are rigorous procedural requirements for notices, hearings, and consideration by zoning authorities before permission can be given to subdivide property.

There are usually simplified procedures if you want to divide your property into only a few parcels (e.g., not more that 4 parcels). These are sometimes called lot splits.

A major subdivision, however, will be subject to more rigorous rules. At a minimum, these rules would include requirements that a developer prepare a site plan or a subdivision map, which is a comprehensive map showing the planned use of a particular property in detail.

In addition, subdivision laws may require:

• the lots be of a particular size
• the streets be of a particular width and quality
• the water, gas, and sewer lines of a particular type be supplied

Some states permit local governments to require developers who are subdividing property to pay for some portion of the municipal improvements that are necessary for residential use, such as:

• Sewers
• Schools
• Roads

A subdivision will go through many public hearings, giving ample opportunity for anyone to speak in favor of or against a project.

Zoning Problems

You may be unpleasantly surprised to find you can't use your property as intended without violating zoning ordinances. There are many ways a lawyer can help you to get around the technical requirements of the regulations.

Non-Conforming Use

Existing properties are often used in a manner that's inconsistent with a new zoning ordinance. Such uses are referred to as non-conforming uses because they don't conform to the requirements of the zoning ordinance.

A use may be non-conforming because:

• the nature or characteristics of the building itself don't conform to the zoning ordinance
• the activity going on in the building doesn't conform

For example, a factory located in a residential zone is a non-conforming use. A two-story building located in a one-story zone is also a non-conforming use.Generally, you don't have to quit an existing non-conforming use and may continue after the adoption of a zoning ordinance.However, the right to continue a non-conforming use may be lost if the non-conforming use is abandoned. For example, if a fast-food restaurant is operated in a storefront in an area that is later zoned to exclude all food-related operations, the restaurant may continue to operate. If the restaurant closes, the right to continue the use may be lost if the same restaurant is not reopened or if some other similar food-related use is not begun within a certain period of time. If the building itself is non-conforming, the right to be non-conforming may be lost if the building is completely, or even partially, destroyed.

Amortization is another way to limit non-conforming uses. Under this approach, a non-conforming use is permitted to continue for a specific period of time, after which it must be converted to a conforming use.

Conditional Use

A conditional use is a use which is permitted under a zoning ordinance, but which must meet certain conditions. For example, a zoning ordinance may permit professional offices in a residential zone if at least four off-street parking places are provided.

When a use is conditional, the zoning ordinance often will require the property owner to file an application with local officials so that they may determine whether the conditions have been met.

Variances

A variance or special use permit is an exception to the requirements of a zoning ordinance. Most statutes permitting the adoption of zoning ordinances also detail the circumstances under which variances may be granted.

Usually, you must show some kind of hardship to justify getting a variance. Some examples of hardship are:

• an undersized lot on which a variance is needed to construct any useful structure
• an odd-shaped lot cannot satisfy the side-yard and setback requirements for the construction of a residence that would otherwise be permitted in the zone

Spot Zoning

Local land use plans and zoning ordinances usually contain restrictions on land uses in specific areas (or zones) outlined in the plan or ordinance.

Once local officials have adopted a plan and ordinance, property owners may seek exceptions to the requirements and limitations either through:

• an amendment to the plan or ordinance
• an application for a variance or special use permit

In both cases, the amendment or application may be opposed on the grounds that permitting special exceptions for specific properties is inconsistent with the overall land use plan or ordinance, and constitutes illegal spot zoning.

Whether or not a particular exception constitutes illegal spot zoning or is merely a permissible exception greatly varies according to:

• the facts of the property use
• the provisions of the applicable enabling statute
• the land use plan in question