Land-Use Controls: Comprehensive Plans, Zoning, and Property Restrictions
To prevent the haphazard development of land, land-use is restricted by public and private land-use controls. and by government ownership of land. For instance, parks and forest preserves are protected by government ownership.
The federal government has virtually no laws regulating land-use. Most land-use controls are within the province of the states, but their enactment and enforcement are delegated to the local governments. Hence, land-use controls varies widely across localities.
Land-use controls consists of government ordinances, codes, and permit requirements that restrict the private use of land and natural resources, to conform to public policies. There are several types of land-use regulations, including subdivision regulations, zoning, building codes, housing codes, curve-cut permit systems, historic preservation laws, and tree cutting laws.
The primary public land-use control is zoning, where properties of the same type, such as residential or commercial, are designated for particular geographic zones. The primary private land-use control is deed restrictions, limiting what can be done on the property by the owner. The primary purpose of land-use controls is to limit population density, noise, pollution, and to maintain the aesthetics of the neighborhood.
Because land-use law changes over time, such changes may place an undue burden on some property owners, so the law often allows grandfathering certain provisions, allowing land that originally conformed to the law to continue without modifications that would be required to conform to the new changes in the law. Hence, property may be classified as: legal and conforming, legal and nonconforming, and illegal. Legal and conforming means the property meets all current land-use requirements, while legal and nonconforming means it was legal under past land-use law, but continues to be legal only under grandfathered provisions.
Legality for Land-Use Controls
The preamble of the United States Constitution allows laws to be enacted for the general welfare, but the 14th amendment prevents states from depriving people of property or interfering with its use, without due process of law. The United States Constitution delegates the police power to the states, allowing them to issue regulations to protect public health, safety, and welfare. However, since land-use controls depend on population density, the mix of architectural structures, and the typography of the land, the states delegate most of their powers to regulate land-use to the municipalities, who enact ordinances that conform to state law. State and federal governments regulate land-use through broader legislation, such as environmental laws, coastal management, or scenic easements.
The 5th amendment of the U.S. Constitution also has a takings clause that states that private property cannot be taken for public use, without just compensation. Hence, if property is condemned because the government wants to exercise eminent domain, then the owner must be compensated. Similarly, a landowner may bring an inverse condemnation action, seeking compensation for the devaluation of his land because of a public taking of adjacent land. For instance, a major highway built near residential units will likely devalue those properties.
The amount of compensation is usually determined by negotiation between the property owner and the government or the property owner can take the government to court, and let the court decide. Often, just compensation is determined by the before-and-after method, where the property value after the development of the adjacent land is compared to the property value before the taking.
Likewise, land-use controls cannot restrict property owners from enjoying their property or doing what they want with it unless it is justified by the police powers. For instance, zoning consists of local laws that regulate the use of privately owned real estate to promote orderly development and to provide different population densities in different areas and to protect environmental resources.
Zoning regulations cannot be unreasonable, arbitrary, or destructive. Zoning ordinances must also not violate the state constitution or other applicable provisions in state law. Generally, zoning ordinances:
- must be exercised in a reasonable manner
- be clear and specific
- be nondiscriminatory
- apply to all property in a similar manner
- promote public health, safety, or the general welfare under the state's police power
Before the details for land-use controls can be mapped out, there must be a comprehensive plan (aka master plan) that will satisfy objectives and prevent conflicts in future development, providing a blueprint for sustainable growth, while balancing social, economic, environmental, and aesthetic desires.
Land-use controls specify quantity and location of parcels for residents, business, agriculture, industry, utilities, community facilities, parks and recreations, traffic and transit facilities, as well as marking off floodplains and potential hazards. A major consideration is for housing, both present and future needs, while preventing or rehabilitating declining neighborhoods. A transportation infrastructure must also be provided: highways, public transit, parking, and possibly pedestrian and bicycle paths. To protect health and the environment, there must be a comprehensive plan for utilities, including water sources, sewage, storm drainage, flood management, waste treatment and disposal.
A comprehensive plan will also consider means of conserving resources, such as energy. For instance, the efficiency of transportation will depend on decisions regarding the location of traffic signals, timing of the signals, two-way or one-way traffic and which directions for the one-way traffic.
If the comprehensive plan is the general blueprint, then zoning is the details, local laws enacted according to the comprehensive plan, usually designating specific districts for particular types of structures or activities, such as residences and businesses.
A zoning ordinance generally defines:
- the purpose of the ordinance
- the zoning classifications of permitted uses for the different sections of land
- restrictions, such as setbacks and height limits
- procedure for allowing nonconforming uses
- procedure for granting variances, amendments, and hearing appeals
- penalties for violations
- permitted uses for each parcel of land
- lot sizes
- types of structures
- building heights
- setbacks, being the minimum distance between structures on the property and streets or sidewalks
- density, either population density or the amount of structures per unit area of land
- style and appearances of structures
- protection of natural resources.
The city planning department creates and maintains a zoning map, a diagram of the existing zoning classifications: single-family residential, multiunit, mixed-use, agricultural, commercial, industrial, etc.
The zones are most commonly designated by letters, such as A for agricultural, R for residential, and C for commercial. In addition, certain planned unit developments (PUD) may be zoned for mixed-use, comprising both residential and commercial sections. Zoned classifications may have further subdivisions. For instance, land zoned for residential may be subdivided further into single-family homes, semi-detached residences consisting of no more than 4 dwelling units, high-rise apartments, etc. So C-1 may designate businesses such as service stations and convenience stores; R-2, single-family housing; R-4, high density residential, as in apartments, etc.
There may also be buffer zones, consisting of playgrounds or parks that separate residential zones from other zones.
Other types of zoning may designate special qualities, such as box zoning that specifies building heights, setbacks, and percentage of open area to avoid overcrowding and aesthetics zoning that may specify buildings of a certain architectural style. Incentive zoning guides current development for certain desirable characteristics, such as requiring a high-rise office building to house retail establishments on the street-level floor. Spot zoning classifies a parcel of land differently from surrounding property if the zone is not within the comprehensive zoning plan nor can be justified because of health, safety, or the general welfare.
Compliance with zoning ordinances is monitored through the issuance of zoning permits, where the property owner or developer cannot substantially alter the use the property without getting a zoning permit, which will not be issued unless the proposed development conforms to the zoning ordinance. Zoning permits are usually required before building permits can be issued.
Some properties that were developed before the enactment of zoning ordinances may not conform to the new regulations or the zoning requirements may cause an undue hardship on some property owners because of the nature or the topography of the land. In such cases, exceptions are made to the zoning ordinance to allow such nonconforming uses. A nonconforming use may continue until the current use is abandoned or the property is destroyed. The nonconforming use may continue indefinitely if it has been grandfathered into the zoning ordinance.
Subdivision regulations are part of comprehensive plans that apply to large subdivisions of land set aside for residences, specifying such things as the proportion of open space, the pattern of access roads, and what will remain the property of the county or other municipality. Special density zoning standards for some subdivisions regulate the gross density for a particular area. The gross density = the average number of residential units in an area.
A subdivider buys undeveloped land and divides it into smaller units to sell to developers or individuals. A developer builds structures on the land, such as homes or businesses. The developer may also be the subdivider. Before the actual subdivision, the subdivider must submit a development plan that conforms to the municipality's comprehensive plan.
Different subdivisions may have different street patterns. For instance, the gridiron pattern has rectangular blocks with public streets running on all sides and smaller alleys in between. However, the streets can also have a curvilinear or clustering pattern where the homes are clustered in cul-de-sacs and limited use streets with more open spaces.
Additionally, procedures for submitting and processing subdivision plats are also stipulated. Subdivisions are divided into plats, which are further subdivided into blocks, consisting of several lots, which are sold individually.
A plat is a section of a subdivision that shows geographic boundaries of individual lots, blocks, sections, streets, public easements, monuments, engineering data, and restrictive covenants. A plan for the plat must be approved by the municipality before it can be recorded. The subdivider may also need to file an environmental impact report that also must be approved. The subdivider determines the location and size of the individual lots, taking advantage of natural drainage and land contours, and providing for utility easements, and water and sewer easements. A plat may also have a homeowner's association and may publish and maintain the bylaws for the subdivision.
Building Codes and Certificates of Occupancy
Building codes specify construction standards for repairing or constructing buildings, such as the materials used, electrical wiring, fire prevention, sanitary equipment, etc. The property owner must request a building permit to alter, repair, or construct a structure. A municipal inspector must approve of the construction plans and will periodically inspect the construction. After the construction is completed to the satisfaction of the municipal inspector, then a certificate of occupancy (aka occupancy permit) will be issued to the developer or owner, certifying that the completed construction complies with public health and building codes, thus allowing the structure to be occupied by people. Note that a building permit does not take into consideration any deed restrictions on the property, only with the construction of the addition or alteration. Some communities, such as historical districts, may also have aesthetic ordinances to maintain the appearance or character of a neighborhood. Aesthetic building permits are issued by a special board in charge of supervising the ascetic ordinances.
Changing Zoning: Zoning Boards, Variances, and Conditional Use Permits
Over time, zoning will change as the needs of the area change. For instance, businesses often go bankrupt or the land needs for a particular industry declines, due to changes in technology or competition. Consequently, many business structures become empty. So, many cities change the zoning for the structure so that they can be converted into residential units.
Additionally, developers must develop structures according to what is permitted by zoning. If another type of structure is desired for many properties, then the land must be rezoned. Generally, rezoning is usually permitted by a planning commission or zoning board after a public hearing. A zoning board (aka zoning board of appeal) considers any applications for changing zoning, such as petitions for conditional use, variances or exceptions.
A conditional-use permit (aka special-use permit) allows a conditional use of property within a particular zone, such as a church in a residential district. Conditional-use permits must comply with certain standards set by the municipality.
A variance is granted by the zoning authority to a property owner to allow for a specific violation of the zoning ordinance, usually because the zoning ordinance imposes a burden on the property owner because of the nature of the parcel of land. For instance, a variance may be granted to a property owner with a small lot, where it may not be possible to satisfy setback and open area to residential area requirements.
While a conditional use permit allows related land uses, variances permit prohibited land uses because the ordinance would have a burdensome effect on the property. For instance, a variance may be issued if the topography of the land makes it difficult to conform to the zoning ordinance. However, to be granted a variance, the landowner must demonstrate the need for the variance, specifying how that property is harmed or burdened by the regulations. Requirements for a zoning variance generally include the following characteristics:
- the zoning places an undue burden on the land
- the adverse effect of the zoning ordinance must affect the individual seeking the variance particularly and without a similar effect on its neighbors
- the variance does not substantially alter the character of the neighborhood as zoned. This is the most important criterion.
Note that if zoning places an undue burden on a parcel of land, then there must be something particularly different about that parcel from the surrounding parcels; otherwise, the area itself would receive a different zone classification.
Obtaining a variance or change in zoning costs time and money, but success is more likely if the property is located near a zone for which the conversion would be classified as. So a residential rezoning of commercial property will more likely be approved if the land is located near residentially zoned property.
Conditional use permits and variances are issued by zoning boards only after public hearings that are locally advertised, allowing neighbors to contest the request. A property owner may also seek an amendment to the zoning ordinance, where a modification of the zoning ordinance will apply to a particular parcel of land. Like conditional-use permits and variances, an amendment is only issued by the zoning board after a hearing.
Although decisions by zoning boards can be appealed to the courts, the courts generally defer to the zoning boards unless they abuse their power.
Private Land-Use Controls
Besides government restrictions on land-use, there may also be private restrictions that are enacted by the property owners or the property developers, especially over time. However, a private land-use control cannot violate any government law regulating land-use.
Restrictive covenants, sometimes called the CCR's, — conditions, covenants, and restrictions — limit the use of a particular property, a condominium, or a subdivision. Such restrictions are either written in the deeds to the property or into the bylaws for the subdivision, which the deeds will reference. The main purpose of the CCR's is to maintain the look and feel of the community.
Restrictive covenants set standards for the construction of units within a subdivision, such as type of structures, height, size, land-use, architectural style, setbacks, square footage, and construction methods. A deed restriction stipulates the land-use control on the deed or it refers to another document restricting property use. Sometimes, deed restrictions are limited in duration, such as 20 years. Afterwards, they cease to exist unless extended by agreement.
Restrictive covenants cannot be illegal, such as barring a specific race. A restrictive covenant must exist to promote the appearance or safety of the property; otherwise, it may be construed as interfering with the free transfer of property. If legally acceptable, private land-use controls are generally more restrictive than public controls, but the more restrictive covenant or ordinance has priority.
Private land-use controls are enforced by adjacent property owners who can bring any violators to court to seek an injunction against the prohibited activity. If the court rules in their favor, then the property owner must obey the covenant. However, if adjacent property owners do not bring an injunction or there is a significant time delay in bringing an injunction, then the court may decide that the restrictive covenant no longer applies and that it has become inoperative through lack of enforcement, what the law sometimes refers to as laches. Laches is the undue delay or failure in asserting one's legal rights, where the courts may rule that the negligent party seeking an injunction is estopped.
Comply with the laws and regulations; otherwise, it may cost you. How can the authorities find out:
- your seller's disclosure agreement
- property tax assessment appraisers
- spiteful tenants
- complaining neighbors
- your buyer's pre-purchase property inspection