Land Use & Zoning

Land use and zoning law involves the regulation of the use and development of real estate. The most common form of land-use regulation, and the best known, is zoning. Zoning regulations and restrictions are used by municipalities to control and direct the development of property within their borders based on a comprehensive, or master, plan. Since New York City adopted the first zoning ordinance in 1916, zoning regulations have been adopted by virtually every major urban area in the United States.

The basic purpose and function of zoning is to divide a municipality into residential, commercial, and industrial districts (or zones), that are for the most part separate from one another with the use of property within each district being reasonably uniform. Within these three main types of districts there generally will be additional restrictions that can frequently be quite detailed. Restrictions may contain 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, floor space or area and cubic feet, and minimum cost of buildings. They may also regulate frontage of lots; minimum lot area; front, rear, and side yards; off-street parking; the number of buildings on a lot; and the number of dwelling units in a certain area. Regulations may restrict areas to single-family homes or to multi-family dwellings or townhouses. In areas of historic or cultural significance, zoning regulations may require that those features be preserved.

Land use regulation is not limited to controlling existing buildings and uses; in large part, it is designed to guide future development. Municipalities most commonly follow a planning process that ultimately results in a comprehensive, master plan; and in some states, the creation of an official map for a municipality. The master plan is then put into effect by ordinances controlling zoning, regulation of subdivision developments, street plans, plans for public facilities, and building regulations. Future developers must plan their subdivisions in accordance with the official map or plan. In recent years, an increasing emphasis has been placed on regional and statewide planning. Recognizing that the actions of one municipality will strongly affect neighboring cities, occasionally in conflicting and contradictory ways, these planning initiatives allow the creation of a regional plan that offers one comprehensive vision and one set of regulations.

Since land-use and zoning regulations restrict the rights of owners to use their property as they otherwise could (and often want to), they are at times controversial. Additionally, the scope and limits of governments' ability to regulate land use is hard to define with specificity. Courts have held that a zoning regulation is permissible if it is reasonable and not arbitrary; if it bears a reasonable and substantial relation to the public health, safety, comfort, morals, and general welfare; and if the means employed are reasonably necessary for the accomplishment of its purpose. Given the subjective nature of these factors, there is obviously a lot of room for disagreement, and on occasion litigation.

One extremely difficult question presented in this area of law is how far land-use regulations may go without running into the constitutional prohibition against taking private property for public use without just compensation. Recent court decisions have made it more difficult for municipalities to require that land developers give up part of their property for public purposes, such as access to lakeshores, sidewalks, access roads, and parks through the use of statutory regulation. However, the U.S. Supreme Court has ruled that a moratorium on development of land in a particular area, imposed while local government considers how best to direct and control such development, does not automatically constitute a taking of the affected land for which the government must pay compensation. These cases serve to define the point at which government demands for control over the land become such that it must compensate the owner by exercising its power of eminent domain and condemning the property.

There are numerous other restrictions on the power of government to regulate land use, any of which may provide a basis upon which such regulations can be challenged. Zoning ordinances must be reasonable, based on all factors involved, such as the need of the municipality; the purpose of the restriction; the location, size, and physical characteristics of the land; the character of the neighborhood; and its effect on the value of property involved. The rationale behind zoning is that it promotes the good of the entire community in accordance with a comprehensive plan. Spot zoning of individual parcels of property in a manner different from that of surrounding property, primarily for the private interests of the owner of the property so zoned, is subject to challenge unless there is a reasonable basis for distinguishing the parcel from surrounding parcels. Restrictions based solely on race or occupancy of property are not permitted, and a classification that discriminates against a racial or religious group can only be upheld if the state demonstrates an overwhelming interest that can be served no other way.

In many jurisdictions, statutes have created boards of zoning appeals to handle these issues. These are quasi-judicial bodies that can conduct hearings with sworn testimony by witnesses and whose decisions are subject to court review. Given both the complexity of zoning law and the specialized nature of zoning appeals boards, an owner who contests a zoning requirement is ill advised to try to argue his case without legal assistance. The members of the board, the municipal attorney, and the planning official involved in the process have substantial experience, knowledge of the law, and a tendency to favor their interpretations of the ordinances, and an owner who cannot bring equivalent legal experience to bear on the problem will be at a substantial disadvantage.

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 are provisions in a deed limiting the use of the property and prohibiting certain uses. Restrictive covenants are typically used by land developers to establish minimum house sizes, setback lines, and aesthetic requirements thought to enhance the neighborhood. Easements are rights to use the property of another for particular purposes. Easements also are now used for public objectives, such as the preservation of open space and conservation. For example, an easement might preclude someone from building on a parcel of land, which leaves the property open and thereby preserves an open green space for the benefit of the public as a whole.

Lessons Learned the Hard Way: Zoning Issues

All over the United States there are laws that prohibit junkyards in residential areas and other laws that allow junkyards as long as they are licensed. These zoning laws can create inconsistent outcomes.

A property owner in Maine had a huge mass of used materials in his yard, including loose boards, barrels, truck bodies, wheels, pipes, tanks, buckets, iron, several vehicles, wheelbarrows, and tires, as well as a bunch of unidentifiable stuff. The vehicles were not registered and they did not run. The town sued him for violating a state law against having an unlicensed junkyard as well as an unlicensed automobile graveyard. Everyone, including the landowner himself, agreed that yard was messy, but the property owner took issue with the junkyard label. According to the law, a junkyard contained discarded, worn, and junked materials. The landowner argued that he had every intention of using each item, so it was not really junk. The judge disagreed, and ordered him to clean up his yard and to pay a fine.

In an earlier case in Pennsylvania, a homeowner was ordered to pay a large fine for operating a junkyard without a license in violation of a township ordinance. The landowner sued the township, arguing that the junkyard licensing law was unconstitutional. The judge agreed. The licensing law said that the township could consider several factors in deciding whether or not to grant the license. One of the factors was the aesthetic impact on the township. But the statute did not specify exactly how the aesthetic impact would be measured-it was too vague. It encouraged the township to issue junkyard licenses in an erratic manner. Consequently, it was considered unfair to deny a person a license on the basis of aesthetics.

In a third case, from Nebraska, the state sued a man who had collected vehicles on his property for nearly twenty years. Photographs presented at trial showed farm equipment, military vehicles, wagons, and trucks totaling in the hundreds. They were in various states of repair, and some he kept for display as a makeshift museum. The state accused him of violating the junkyard licensing statute. The judges on the court studied the statute. It had been passed, in part, to preserve the natural beauty of Nebraska. Then the judges on the court studied the landowner's items and determined that he did not maintain wrecked, ruined, or scrapped vehicles, although many of the vehicles were dismantled. However, the vehicles on his property fit the definition of junk, which included wrecked automobiles or those that were no longer intended to be used on the road.

The owner argued that he was not required to obtain a junkyard license, because he had been running a junkyard since before the statute was enacted. In response, the court stated that the statute was enacted in part to preserve the natural beauty, and that therefore even one junked vehicle would constitute a junkyard for which a license would be required. The photographs showed that the owner in this case had at least four junked vehicles in his yard since before the law was enacted. Therefore, his property was a junkyard long before the statute was enacted, so the new statute was found not to apply to him. He was allowed to continue to use his property as he had all along, as a junkyard and museum.

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