About Zoning Laws

About Zoning Laws

Zoning is a legal limitation, created by a legislature or municipal authority, designed to place similarly used properties in proximity with other like properties. Usually, it is part of a master plan designed to obtain the highest, and best use, of land. It permits, or denies, the use of property in a particular manner, and may allow, or prohibit, the building of certain types of structures.

Originally, before government got involved in the process of zoning or restricting the uses of property, landowners sometimes did it for themselves with a series of restrictive covenants or deed restrictions that prohibited various uses. For example, many old deeds specifically prohibit the purchaser (as well as his "heirs, successors") from maintaining commercial stables on their property (too odoriferous), or from manufacturing vitriol products (too noxious) or even from erecting structures of any kind in their backyards so as to preserve the "open look" of the community.

The types of zoning changes
It's possible to get permission to deviate from your town's zoning laws. This permission is known formally as a variance. Variances, which can be granted from your local zoning board, are fairly commonplace.

The following are the types of variances most frequently requested by property owners:

• Use variance. This changes the way in which real property is used. For example, if someone buys an old house with a barn and wants to change the barn into either a car garage or an art studio, a variance for the use would probably be required.
• Setback. This refers to the distance from the property line to buildings on real property. If your community requires 20 feet from each house to the edge of the property on the side yard and you want to build on an extension as a family room, if the design comes, say, to within 18 feet of the property line, a variance is required--permission to build it that way. If permission is denied, you must conform to the zoning requirements, which means you can't build the addition.
• Landscaping. Most zoning laws have requirements for greenery or other improvements. This is typically called site plan work.
• Ingress and egress from a property. This can range from a driveway to a road. Zoning boards can be required to pass on a request to widen a home's driveway, too, if it deviates from the accepted norms for size.
• Height variance. If your community allows houses of no more than two stories, and you want to build a three-story house, it's to the zoning board that you go. Is there a real height difference in that last half-story? Maybe not, but the zoning laws require permission, anyway.
• Zone change. An owner may need to change the zone for a property from one classification to another: from rural agricultural to highway business, or from residential to neighborhood business, or from one type of residential use (perhaps a one-family house) to another (a two-family house).

Variances
A variance a change in the zoning just for your property. Initially, a municipality's building officer or construction official is the typical starting point in any zoning determination. You must show proposed building plans or changes to the property to the construction official who can grant a permit, or deny it. If it is denied (because the official believes that it deviates from the administrative zoning code), your next step is an appeal to the zoning board.

It's worthwhile visiting your local construction official to see if there isn't some basis to obtain the relief that you need, or, if there isn't, how to minimize the zoning variances that you need. Complicated variances may require legal assistance and expert witnesses--both costly--that you want to avoid when possible. Once a decision is made to seek a variance from the existing zoning laws, the local state statute concerning zoning appeals comes into play. It varies from state to state, but there are some general guidelines as to what basis can be used to grant variances.

General guidelines for getting a variance
The process for getting a variance differs from municipality to municipality because in most states every municipality sets its own standards for determining when an applicant is entitled to a variance. Generally, to get a variance you apply to your local zoning board. The zoning board will hold a public hearing at which you will present your case. Any opponents to your request will also get a chance to state their cases. If nobody objects and most everyone else who has requested a similar variance required one, you will likely be successful.

In most jurisdictions, to be entitled to a variance you will have to prove:

1. The proposed use would not diminish surrounding property values.
   
   
2. Granting the variance would be of benefit to the public interest.
   
   
3. Denial of the variance would result in unnecessary hardship to the owner. Hardship, as the term applies to zoning, results if the restrictions of the zoning ordinance, when applied to a particular property, become arbitrary, confiscatory or unduly oppressive because of conditions of the property that distinguish it from other properties under similar zoning restrictions. (Hardship is a characteristic of the property, and has nothing to do with the personal circumstances of the owner.)
   
   
4. Granting the variance would do substantial justice.
   
   
5. The proposed use is not contrary to the spirit of the zoning ordinance.
   
   

Zoning, then, is usually part of a master plan. Every request--no matter how small--to a zoning board asks for a variance, or permission to deviate from the law. Board members (usually drawn from the community) understand this, and apply a set of general rules and guidelines before determining whether to approve the change or not.

They may permit the change in whole, or in part, or they may deny it. In essence, they act as an appellate authority for the construction or building official, but the actions of the zoning board may also usually be appealed, either to a higher municipal authority (such as a borough or city council) or to the courts.

If you're a homeowner seeking a minor variance, you may be able to handle the proceeding by yourself, saving considerable attorneys' fees and expert fees.

Here is what else you will find in this section:

Objecting To A Zoning Change
What to do if a proposed change will adversely affect you; tips to keep in mind if you object to a proposed variance.

Presenting Your Own Case For A Variance
If you want a variance, here are ways to present your case to the zoning board.