Definition of Land Use and Zoning Laws

Land use and zoning law is the regulation of the use and development of public and private real estate. Zoning is the most common form of land-use regulation, used by municipalities to control local property development. Other legal issues pertaining to land use include easements, trespassing, and eminent domain.

Zoning regulations typically divide a municipality (such as a city) into residential, commercial, and industrial zones. Thus, zoning laws are intended to maintain a level of order and efficiency within a municipality, while keeping each zone optimized for its intended purpose. For example, zoning laws reassure home owners that a factory or department store will not open across the street. Zoning laws also regulate specific requirements for the types of buildings allowed in each zone (height restrictions, etc.), location of utility lines, parking requirements, and other regulations.

An easement is a limited, non-ownership interest in another party's property. For instance, one party may obtain an easement to gain legal access to their neighbor's driveway if that is the only way to access their house. When the government seizes property to build a freeway or a park, for instance, it invokes eminent domain law. The government entity must give the property owner fair compensation. The crime of trespassing occurs when an individual enters another's property without consent.

Terms to Know

·         Taking: A seizure of private property or a substantial deprivation of the right to its free use or enjoyment, caused by government action, often via eminent domain.

·         Adverse Possession: Actual possession of another's real property that is open, hostile, exclusive, continuous, and adverse to the claim of the owner, often under a claim of right or color of title.

·         Implied Easement: An easement that is created by operation of law when an owner severs property into two parcels in such a way that an already existing, obvious, and continuous use of one parcel (as for access) is necessary for the reasonable enjoyment of the other parcel.

Working with an Attorney for Land Use or Zoning Issues

Depending on the land use issue, you may want to work with an attorney who practices real estate or municipal law. If you are challenging an eminent domain claim by the city, your attorney may take a close look at the municipality's "public use" claim to make sure it's valid. If you are looking for a new location for your company's headquarters, your legal counsel probably would research the zoning laws of each prospective location.

However, there are lawyers who specialize in land use and zoning law, and may work with a variety of clients (such as municipalities, businesses, and private citizens).

What are Zoning Regulations?

The basic purpose and function of zoning is to divide a municipality into residential, commercial, and industrial districts (or zones), that are for the most part separate from one another, with the use of property within each district being reasonably uniform. Within these three main types of districts there generally will be additional restrictions that can be quite detailed -- including the following:

·         Specific requirements as to the type of buildings allowed

·         Location of utility lines

·         Restrictions on accessory buildings, building setbacks from the streets and other boundaries

·         Size and height of buildings

·         Number of rooms

These restrictions may also cover the frontage of lots; minimum lot area; front, rear, and side yards; off-street parking; the number of buildings on a lot; and the number of dwelling units in a certain area. Regulations may restrict areas to single-family homes or to multi-family dwellings or townhouses. In areas of historic or cultural significance, zoning regulations may require that those features be preserved.

Regulation of Development

Land-use regulation is not restricted to controlling existing buildings and uses; in large part, it is designed to guide future development. Municipalities commonly follow a planning process that ultimately results in a comprehensive or master plan, and in some states the creation of an official map for a municipality. The master plan is then put into effect by ordinances controlling zoning, regulation of subdivision developments, street plans, plans for public facilities, and building regulations. Future developers must plan their subdivisions in accordance with the official map or plan.

In recent years, an increasing emphasis has been placed on regional and statewide planning. Recognizing that the actions of one municipality will strongly affect neighboring cities, occasionally in conflicting and contradictory ways, these planning initiatives allow the creation of a regional plan that offers one comprehensive vision and one set of regulations.

Limits on Zoning Regulation

Since land-use and zoning regulations restrict the rights of owners to use their property as they otherwise could (and often want to), they are at times controversial. Additionally, the scope and limits of governments' ability to regulate land use is hard to define with specificity. Courts have held that a zoning regulation is permissible if it is reasonable and not arbitrary; if it bears a reasonable and substantial relation to the public health, safety, comfort, morals, and general welfare; and if the means employed are reasonably necessary for the accomplishment of its purpose.

Given the subjective nature of these factors, there is obviously a lot of room for disagreement, and on occasion litigation. One extremely difficult question presented in this area of law is how far land-use regulations may go without running into the constitutional prohibition against taking private property for public use without just compensation.

Challenges to Zoning Regulations

There are numerous other restrictions on the power of government to regulate land use, any of which may provide a basis upon which such regulations can be challenged. Zoning ordinances must be reasonable based on all factors involved, such as the need of the municipality; the purpose of the restriction; the location, size, and physical characteristics of the land; the character of the neighborhood; and its effect on the value of the property involved. The rationale behind zoning is that it promotes the good of the entire community in accordance with a comprehensive plan.

Spot zoning of individual parcels of property in a manner different from that of surrounding property, primarily for the private interests of the owner of the property so zoned, is subject to challenge unless there is a reasonable basis for distinguishing the parcel from surrounding parcels. Restrictions based solely on race or occupancy of property are not permitted, and a classification that discriminates against a racial or religious group can only be upheld if the state demonstrates an overwhelming interest that can be served no other way.

In many jurisdictions, statutes have created boards of zoning appeals to handle these issues. These are quasi-judicial bodies that can conduct hearings with sworn testimony by witnesses and whose decisions are subject to court review. Given both the complexity of zoning law and the specialized nature of zoning appeals boards, an owner who contests a zoning requirement is ill-advised to try to argue his or her case without legal assistance.

Non-Government Restrictions: Restrictive Covenants and Easements

Not all land use restrictions are created by governments. Land developers may also incorporate restrictions in their developments, most commonly through the use of restrictive covenants and easements:

Restrictive covenants are provisions in a deed limiting the use of the property and prohibiting certain uses. Restrictive covenants are typically used by land developers to establish minimum house sizes, setback lines, and aesthetic requirements thought to enhance the neighborhood.

Easements are rights to use the property of another for particular purposes. Easements also are now used for public objectives, such as the preservation of open space and conservation. For example, an easement might preclude someone from building on a parcel of land, which leaves the property open and thereby preserves an open green space for the benefit of the public as a whole.