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Land Use and Zoning

Land use and zoning law concerns regulation of the real estate use and improvement. Zoning is one form of land use regulation. Local governments control and direct property development by zoning regulation and based on a master zoning plan. After New York City implemented the original zoning ordinance in 1916, zoning regulation has been deployed by every major urban area in the United States.

The primary function of zoning is to partition a municipality into residential, commercial, and industrial zones. These zones should largely be separate from each other regarding property use in that each zone should be reasonably uniform. The main classifications will also include restrictions that may be acutely detailed. Restrictions might include requirements of the type of buildings permitted, position of utility lines, setbacks from streets and boundaries, size and height of buildings, number of rooms, floor space or area, and cubic feet. Zoning might also regulate frontage of lots; minimum lot area; front, rear, and side yards; off-street parking; number of buildings on a lot; and number of residential units in a defined section. Regulations might restrict partitions to single-family homes or to multi-family dwellings. Zoning might require the preservation of historical or culturally important sites.

Land use regulation not restricted to preexisting buildings and uses. Regulation is designed to guide future development. Local governments develop a comprehensive land use plan. The master plan is enforced by zoning ordinances and regulations. Future developers must plan their subdivisions according to the official map or plan. Because neighboring communities and plans can overlap, regional planning initiatives sometimes develop a comprehensive vision and unified set of regulations that all cooperating communities abide by.

Because land use and zoning regulations can inhibit the rights of owners to use their properties with complete autonomy, plans can be controversial. Defining the limits of governmental authority in land use regulation is not easy. Courts have held that zoning regulation is permissible if reasonable and not arbitrary; if regulation bears a reasonable and substantial relation to the public health, safety, comfort, morals, and general welfare; and if means employed are reasonably necessary to accomplish the stated purpose. Because of the subjectivity of these factors, there is a lot of room for dispute and litigation.

One complex issue that arises in land use law is the lengths regulations may go without running afoul of constitutional prohibitions against taking private property for public use absent proper recompense. The Supreme Court, several State Supreme Courts, and Federal and several State Congresses have weighed in on the subject of eminent domain. The Supreme Court sets a broad framework that is tolerant of takings, but that framework is a starting point that the Congress and the State are allowed to narrow. Attorney Patrick K. Oden may be able to help protect property the State or local municipality is trying to take from you.

The power of government to regulate land use is restricted in many ways that can provide the basis for challenging rules that adversely affect your property rights. Zoning ordinances need to be reasonable, based on such factors as the needs of the local government; the purpose of the restriction; the location, size, and physical characteristics of the land; the character of the neighborhood; and the effect on property value. The purpose of zoning should promote the good of the community according to a comprehensive plan. Spot zoning of discrete parcels into a different category than surrounding property, especially if for the interests of the owner of the affected property, may be challenged if there is no reasonable basis for characterizing that particular property differently. Restrictions against race or occupancy of property are disallowed. A classification discriminating against an ethnic or religious group may only be upheld if the State shows such a strong interest cannot otherwise be implemented. In practical terms, zoning laws can never discriminate based on race or religion.

The Zoning Boards of Appeals handle initial challenges to zoning laws. These boards are quasi-judicial bodies that conduct hearings with sworn testimony and whose decisions are subject to judicial review. Because of the intricacy of zoning ordinances and the specialized nature of zoning appeals boards, a property owner contesting a zoning ordinance is not advised to argue his or her case without the help of an attorney. The board members, the government attorney, and the agency official will likely have significant experience, knowledge of the law, and a tendency to favor their predetermined interpretations of the ordinances. An owner without legal experience can be at a significant disadvantage. The only proper way to prepare yourself for a legal fight is to hire a lawyer.

Restrictions on land use can come from sources other than the government. Developers can incorporate restrictions in their subdivisions. This is commonly accomplished by using restrictive covenants and easements. Restrictive covenants limit or prohibit certain land use. Developers sometimes employ restrictive covenants to establish house and lot sizes, setback lines, and aesthetic requirements. Easements are the rights of third parties to use the property of another for particular purposes. Easements can also be used for public purposes, such as preserving and conserving undeveloped land. An easement could prevent a landowner from improving a parcel of land to preserve green space for the benefit of the community.

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