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Practice Center - Construction Law

Zoning and Land Use

Property owners are not entirely free to do whatever they want with their property. Most property is subject to governmental controls on the uses to which the property may be put. It is important that property owners are familiar with these restrictions before they attempt any major work on their property. An attorney who is knowledgeable in the real estate area, can advise you about the restrictions that may exist on your land.

Zoning

Zoning laws or ordinances are controls on what a property owner can do with his or her land. While the nature of zoning restrictions vary from city to city, the most common type of zoning law restricts certain types of businesses to certain areas, and will limit other areas to strictly residential uses. Some cities have very strict, and wide-ranging zoning laws: not only are certain areas limited to residential use, but homeowners must keep fences below a certain height, they may not keep certain pets, or they may not park certain vehicles on the street in front of their homes. In some extreme cases, the courts have held that zoning laws are so restrictive as to amount to a "taking" of the owner's property, allowing the owner to make a claim for compensation form the governmental authority that made the zoning law.

A property owner who wants to use his or her property in a manner not allowed by the zoning laws must obtain a "variance" from the local authorities. The decision as to whether to grant a variance is usually left to the sole discretion of the zoning authority. Some authorities may grant such variances liberally, while others are more restrictive. Most authorities will allow a variance if it does not change the essential character of an area. For example, a lot that is in a residential zoning area may be allowed to change to a classification that allows a small retail store to operate on the premises. The authority will look to many factors, such as whether the parcel is on a street already used for commercial purposes, how the proposed change might affect the traffic flow in the neighborhood, and the opinions of those located nearby.

Zoning is a very complicated area of the law. It is a field that is subject to numerous technical rules and special practices. Non-compliance with these rules may result in the prolongation, or even the dismissal, of a variance application, often at a substantial loss of time and money to the client. A party involved in any kind of zoning dispute needs expert legal counsel to avoid such a loss.

Land Use

Many property owners are under the mistaken belief that, once they receive a favorable zoning decision, they can do as they please. Zoning is only one part of a very complex picture. Many communities have comprehensive plans that limit the way land may be used in the community. These plans will often restrict the type and size of buildings that may be built in a certain area. The plan may also regulate the placement of a building on a lot, and may even call for prior approval of the appearance of the design, to conform to the other buildings in an area. These special requirements are in addition to the normal zoning laws. A parcel of land may be zoned for residential uses only, but that does not mean that any type of home may be built there. The community may have imposed minimum square footage requirements for a house, there may be a requirement that the lot be of a certain size, and some communities have even been known to require two-car garages.

Property owners should also be aware of environmental restrictions on their property. In many areas, a property owner will not be allowed to damage or destroy a wetland area. A prior owner of the property may also have engaged in some activity on the property that caused hazardous waste to be generated, contaminating the soil, and requiring clean up before the current owner may build or redevelop the property.

It is important to know, in advance, what restrictions may limit the use of your land. Ignoring a restriction can subject you to legal penalties, and new legal hurdles. It is best to know what you may or may not do, before you start a project.

Conclusion

Zoning laws and land use restrictions can be a source of great frustration for a property owner. Knowing the restrictions in advance, and being prepared to deal with those restrictions, can minimize the frustration. An attorney with experience in land use and zoning law will find those restrictions and help you do what is necessary to make your project work.

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