Land Use and Zoning Practices

While zoning is an important aspect of urban planning, members of the general public do not have much reason to think about zoning or other land use issues until they directly impact a person's home or business.  If a county or city zoning decision is affecting you, you may feel both overwhelmed and frustrated.  You may feel like a little fish doing battle with a big, powerful shark. If you find yourself in such a situation, you would be wise to contact an experienced real estate or land use attorney.  An attorney skilled in zoning practices can help you properly understand and, if necessary, challenge the city or county zoning regulation that is negatively impacting you. 

Zoning Laws & Land Use: A Background

Zoning by city and county governmental units is allowed as a proper function of the municipality's police power.  Police power is defined as the power to regulate for the advancement and protection of the health, morals, safety or general welfare of the community as a whole. Zoning regulations will only be upheld when they are deemed a valid exercise of a municipality's police power. Also, in most states, zoning ordinances must be enacted within the parameters of the enabling authority -- usually a state law that authorizes both the establishment of zoning/planning commissions and the creation of local zoning ordinances by those commissions, and requires that certain procedures be followed prior to the enactment of zoning regulations.  Examples of such required procedures are comprehensive studies of population and land use patterns, public notice, and the holding of public hearings. 

Challenging Zoning Regulations

Parties challenging zoning regulations may often argue that they did not receive notice of the proposed zoning and did not have opportunity to participate in the public hearing.  In other words, challenges to a given zoning regulation may be brought on the basis that the ordinance in question was not enacted within the scope of the enabling authority. Also, when challenged, the validity of a given zoning regulation is examined to see whether the decision was made in an unreasonable, arbitrary or capricious manner.  Where the decision has been successfully shown to be unreasonable, arbitrary and capricious, the zoning regulation will be invalidated.  Finally, a landowner challenging zoning may argue that the zoning has changed the character of the property so as to deprive him or her of all reasonable use of the property.  Thus, the zoning resulted in a complete "taking" of the property from the owner.  In these cases, the property owner will seek monetary compensation from the involved governmental authority. 

Alternatives to Challenges: Amendments, Variances, and Permits

If a successful challenge is unlikely, an affected landowner instead might try to get the zoning regulation amended. Usually, however, rezoning requires a showing that there has been a change in the character of an area.  It is also important that the interested landowner show that the hardship caused by a certain zoning classification is quite substantial, while the corresponding positive impact of the zoning to the general public is minimal.  It is not necessary to show that the impact of the zoning is so extreme that it results in a "taking" of the property, as discussed above.

Another way to seek relief from a zoning regulation is to obtain a variance. Variances are granted when the zoning authority finds that "unnecessary hardship" or "practical difficulties" will result if the variance is not granted.  This has been interpreted to mean that the hardship conditions must be peculiar to and uniquely associated with the specific land use in question.  There are two kinds of variances: use and area variances.  An area variance usually involves some physical oddity of the land that makes construction in conformity with zoning restrictions difficult or impossible.  The relief granted by an area variance is the relaxation of zoning restrictions to make construction possible.  A use variance allows the property to be used in a manner not permitted by the zoning.  For instance, a use variance might allow a commercial operation in land that has been zoned as residential.

Finally, there is one other commonly used method for seeking relief from zoning regulations. This is to apply for a "conditional use," or "special use," permit. Such relief is outlined in the zoning ordinance and will be allowed when the interested landowner can demonstrate that the conditions specified in the ordinance have been met.  Such relief must not conflict with the overall scheme of the neighborhood where the zoning ordinance governs land use. This usually involves a finding of compatibility with the surrounding areas and the type of land development already existent in that area.  Thus, a special use permit might allow the development of a park/recreational area in an area zoned residential, but not allow the establishment of a junkyard in the same area.

Zoning procedure and regulations often can be both confusing and frustrating, if not a continual cutting through red tape.  While your property is probably one of your most valued possessions, battling governmental units can seem futile. An experienced real estate or land use attorney can help you navigate through some of the red tape and gain leverage with the governmental unit.  In this manner, you can let the zoning authority know that you have resources to assist you in fighting for your property rights.

Next Steps

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