How zoning laws apply to current and future property owners

February 28, 2013 (Press-News.org) How zoning laws apply to current and future property owners

Article provided by Bernstein & Feldman, P.A.
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Cities, counties and states across the country use zoning rules to shape future property development inside their borders. Zoning laws tell property owners what they can and cannot do to develop their properties. However, zoning laws are not set in stone and owners are able to petition their local governments for an exception or challenge them if they believe zoning laws are too restrictive.

Zoning law basics

The aim of zoning laws is to shape and control the future development of areas within in a city, region or state. Most cities are broken up into three general zones: residential, commercial and industrial. When an area is zoned as residential, it is typically not possible for future property owners to build properties for commercial or industrial use in that area.

Sometimes, cities go a step further and classify the different types of zones. For example, one residential zone in a city may encourage the growth of single-family homes while another focuses on the development of multi-unit apartment buildings or townhomes.

Not only can zoning laws dictate the type of properties owners can develop in a given area, they also often require buildings to adhere to certain specifications. For example, zoning laws may require buildings to adhere to height and length restrictions, impose limits on the number of rooms in a building, dictate how far back a building must sit from the street or frontage lot and even require buildings to adhere to an area's historic character.

Zoning laws primarily target future construction on properties, not existing structures. Therefore, it may be possible to have a business in the middle of a primarily residential neighborhood if the business existed before zoning laws were in place.

To be upheld in court, zoning laws must be fair to property owners. Zoning rules cannot be enacted arbitrarily or without a relationship to the needs of a city or area. In other words, zoning laws must reflect the needs of public health, safety, morals, comfort or welfare. If they do not, or if zoning laws present a special hardship for property owners, it may be possible to challenge zoning laws or obtain an exemption.

Challenging zoning laws for current property owners

Sometimes, the circumstances within a certain zone change enough that a property owner faces a hardship under the current zoning laws or would face a hardship under proposed zoning laws. In these cases, property owners can challenge the zoning rules if they can prove the rules make it impossible for them to use the property.

Other times, current property owners can seek a zoning variance. Variances are exemptions from zoning laws granted to properties for which the unique circumstances of the property or undue hardship require an exception.

There are two types of variances. A use variance allows a property owner to use his or her property in a way not allowed by zoning laws, for example, allowing a commercial property in a residential zone. An area variance may be appropriate when a property's physical characteristics, like number of stories or other features, make it impossible or extremely difficult to comply with existing zoning laws.

Challenging zoning laws for future property owners

Property owners who wish to develop their land in the future can also challenge zoning laws. Future property owners can argue that current zoning law restrictions are capricious, unreasonable or arbitrary and do not reflect the needs of the city. To do so, property owners may provide evidence of the character of the neighborhood or the zoning laws' effect on property values.

Property owners may also try to rezone their properties so they can develop them. Rezoning can be difficult because owners typically need to prove a change in character of the area or that current zoning laws create a hardship for the property owner that outweighs the benefits they provide to the public.

Navigating zoning laws can be tricky, so it is important that property owners contemplating a zoning law challenge contact an experienced real estate attorney.