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Options for Zoning Relief

Zoning, the regulation of land use by the government, is the principle tool used by a municipality in urban planning. In theory, zoning helps an area grow in a way that is orderly and serves the public interest. State governments have the power to zone for the advancement of the health, morals, safety or general welfare of the community.  They in turn grant this power to local governments, enabling them to control the character of a particular location.

When a property owner's land is affected by zoning, the owner has options that fall into two basic categories. The first category involves essentially asking the government to make an exception for the landowner.  The other approach is to challenge the zoning ordinance itself as improper or unconstitutional.  Depending on the needs of the property owner, more than one route may be appropriate.  Therefore, a property owner should consult with an experienced land use attorney before attempting to challenge a zoning decision.

Non-Conforming Uses and Variances

When a zoning ordinance is passed, changing the character of the zone where the landowner's property lies, the landowner has several options. Occasionally, property that has been used in a certain way may continue to be used in that manner even after a new ordinance is passed. This is called a "continuing existing use" or "lawful nonconforming use". It is generally held that, when substantial expenditure has been made in construction, or where a business is currently carried out on the property, the owner may continue this use without interruption. However, this rule is generally qualified by the effect of the continuing use on the public. So, if the public benefit of the new zoning ordinance is greater than the detriment to the landowner, the non-conforming use may be prohibited. In addition, if the use is discontinued at any point, the nonconforming use will no longer qualify for an exemption. Additions or expansions of the nonconforming use are almost never allowed.

Another option for landowners affecting by a zoning decision is to request a variance. There are two kinds of variances. One addresses the use of the land, while the other deals with structures built upon the land. In either case, the landowner must demonstrate that conforming to the zoning ordinance would create undue hardship. Some states further require that the granting of a variance not be detrimental to the public interest. Similar to the variance is the "special permit". A special permit is granted for a use that is expressly identified in the ordinance as qualifying as an exception to the zoning rule at issue -- i.e., a church in a residentially zoned area. 

Challenging the Zoning Procedure

Another type of action an aggrieved landowner might take is to challenge the zoning ordinance itself. One way to do this is to challenge the process by which the zoning ordinance was adopted. Some states require that zoning ordinances conform to a "Master Plan". A Master Plan is an area-wide map, based on a variety of social and economic factors, which displays current land use and projects future uses.  When a state requires that a locality adopt a Master Plan, or when the locality voluntarily adopts one, all zoning done after the adoption must conform to the Master Plan. A zoning ordinance can be challenged on the basis that it does not conform to the Master Plan, meaning that it does not meet with the spirit and the goals identified and laid out in the plan.

Likewise, the Fourteenth Amendment of the US Constitution states that no state shall "deprive any person of life, liberty, or property, without the due process of law." This means that a state must give a person an opportunity to be heard, at a meaningful time and at a meaningful place, before it deprives him or her of certain interests. Procedural due process is violated when a statutory procedure outlining the process required for passing a zoning ordinance has not been followed, or when sufficient notice and hearing have not been provided to those whose property interests will be affected.        

The "Taking" Argument

Another approach that may be taken by a landowner who is suffering under a changed zoning ordinance is to show that, by passing the zoning ordinance, the government has effectively taken the property owner's land. States have the right to regulate the way land is used to protect citizen's health, safety and welfare, and it is generally assumed that local governments are most familiar with the needs of those in the immediate area. For this reason, local government decisions regarding zoning regulations are given a great deal of deference. But the United States Constitution limits this government power through the "Takings Clause" which provides that, if a government takes private property for a public use, the government must fairly compensate the property owner. So, when a new zoning regulation denies a property owner all economically viable use of his or her land, or does not substantially advance legitimate state interests, the regulation can be construed as a "taking" of the land and may be considered unconstitutional. 

The clearest example of a taking would be where the government physically infringes on a landowner's property. But in the absence of permanent physical encroachment, the property owner must be deprived of all economically viable use of the land before compensation will be granted. If a property owner can no longer use the land for its current purpose, but has alternative uses available to him or her, the courts will weigh the benefit to the public against the economic harm to the landowner.

Your Legal Options

State and local governments have the power to regulate land use for the health, safety and welfare of their people. Their actions in exercising this power through zoning regulations are generally presumed valid, and are usually upheld in the face of a legal challenge. But an aggrieved landowner does have options. One approach is to get a kind of waiver for the intended use of the property. Another is to challenge the zoning regulation itself. The options discussed above are not exhaustive, and it is a good idea to consult a land-use and zoning attorney for an evaluation of your situation, and an explanation of your legal options.

Next Steps
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