Zoning is a regulatory tool that helps communities regulate and control how land is used and limits the type of business in a given area.
Zoning ordinances are local laws that implement the comprehensive plan and regulate and control the use of land and structures within designated land-use districts. If the comprehensive or master plan is the big picture, zoning makes up the details.
No nationwide or statewide zoning ordinances exist.
Rather, zoning powers are conferred on municipal governments by state enabling acts. State and federal governments may, however, regulate land use through special legislation, such as scenic easement, coastal management, and environmental laws.
Zoning affects such matters as:
- permitted uses of each parcel of land,
- lot sizes,
- types of structures,
- building heights,
- setbacks (the minimum distance away from streets or sidewalks that structures may be built),
- style and appearance of structures,
- density (the ratio of land area to structure area), and
- protection of natural resources.
Zoning ordinances cannot be static, they must remain flexible to meet the changing needs of society.
Zoning Objectives
Land is divided into zones. The zones are identified by a coding system that outlines how the land may be used according to the code. Common zoning classifications include :
- “C” for commercial,
- “R” for residential, and
- “A” for agricultural,
- “M” for manufacturing,
- “B” for business.
There are subcategories in the classifications, and some land may be zoned for mixed use.
A planned unit development (PUD) is a development where land is set aside for mixed-use purposes, such as residential, commercial, and public areas. Zoning regulations may be modified for PUDs.
Zoning ordinances have traditionally classified land use into:
- Residential,
- Commercial,
- Industrial,
- Agricultural.
These land-use areas are further divided into subclasses Residential areas may be subdivided to provide for :
- detached single-family dwellings,
- semi-detached structures containing not more than four dwelling units,
- walk-up apartments,
- high rise apartments.
Some municipalities also use buffer zones to ease transition from one use to another. A buffer zone is typically a strip of land separating land dedicated to one use from land dedicated to another use. For example, landscaped parks and playgrounds and hiking trails are used to screen residential areas from nonresidential zones.
Certain types of zoning that focus on special land-use objectives are used in some areas. These include
- bulk zoning (or density zoning) to control density and avoid overcrowding by imposing restrictions such as setbacks, building heights, and percentage of open area or by restricting new construction projects,
- aesthetic zoning to specify certain types of architecture for new buildings, and
- incentive zoning to ensure that certain uses are incorporated into developments, such as requiring the street floor of an office building to house retail establishments.
Constitutional issues and zoning ordinances
The ongoing question is how a local government can enact zoning ordinances that protect public safety and welfare without violating the constitutional rights of property owners. The government provides a forum for the citizens to discuss zoning ordinances before they are enacted; these are called public hearings.
Any land-use legislation that is destructive, unreasonable, arbitrary, or confiscatory usually is considered void. Furthermore, zoning ordinances must not violate the various provisions of the state’s constitution. Commonly applied tests in determining the validity of ordinances require that
- power be exercised in a reasonable manner,
- provisions be clear and specific,
- ordinances be nondiscriminatory,
- ordinances promote public health, safety, and general welfare under the police power concept,
- ordinances apply to all property in a similar manner.
Taking
The concept of taking is similar to eminent domain in that it comes from the takings clause of the Fifth Amendment to the U.S. Constitution. The clause reads, “nor shall private property be taken for public use, without just compensation.” This payment is referred to as just compensation – compensation that is just and fair. The compensation may be negotiated between the owner and the government, or the owner may seek a court judgment setting an amount based on appraisals. In general, no land is exempt from government seizure.
Zoning Permits
Compliance with zoning can be monitored by requiring that property owners obtain permits before they begin any development. A permit will not be issued unless a proposed development conforms to the permitted zoning, among other requirements. Zoning permits are usually required before building permits can be issued.
Zoning hearing board Zoning hearing boards (or zoning boards of appeal) have been established in most communities to hear complaints about the effects a zoning ordinance may have on specific parcels of property. Petitions for variances or exceptions to the zoning law may be presented to an appeal board.
Nonconforming use Frequently, a lot or an improvement does not conform to the zoning law because it existed before the enactment or amendment of the zoning ordinance. Such a nonconforming use may be allowed to continue legally as long as it complies with the regulations governing nonconformities in the local ordinance or until the improvement is destroyed or torn down or the current use is abandoned. If the nonconforming use is allowed to continue indefinitely, it is grandfathered into the new zoning.
Real estate licensees should never assume, nor allow their clients to assume, that the existing nonconforming use will be allowed to continue. Buyers should verify with the local zoning authorities the conditions under which the use is allowed to remain or whether changes are permitted.
Conditional-Use Permits and Variances
Conditional Use Permit — Zoning Category existed before a Zoning Change/ Variance — Current Zoning is being changed
A conditional use permit (also known as a special use permit) is usually granted to a property owner to allow a special use of property, defined as an allowable conditional use, within that zone, such as a house of worship or day care center in a residential district. For a conditional use permit to be appropriate, the intended use must meet certain standards set by the municipality.
A variance (or exception), on the other hand, provides relief if zoning regulations deprive an owner of the reasonable use of the property. To qualify for a variance, the owner must demonstrate the unique circumstances that make the variance necessary. In addition, the owner must prove that she is harmed and burdened by the current regulations. Any such variance is said to “run with the land,” meaning the exception is passed on to any later owners after a change has been made.
Both variances and conditional-use permits are issued by zoning boards only after public hearings. The neighbors of a proposed use must be given an opportunity to voice their opinions.
