Zoning Ordinances:
Unlike many other areas of land use law, zoning ordinances are not state or federally set. States have created enabling acts which place the authority for zoning on the local municipalities. Of course this makes the most sense, since who knows better what the layout of the local area should be than the local government? At least one would hope…
Goals of zoning ordinances:
Zoning laws exist to classify the land in an area and provide for control of use through regulation and oversight. At the same time zoning ordinances are mandated not to violate individual property rights as defined in the U.S. Constitution. How that is interpreted can be a bit tricky since it’s hard to fight zoning ordinances once the come into effect.
General zoning classifications:
Residential, commercial, industrial and planned unit developments (PUD’s) are the key broad areas of zoning. After that, there are typically many sub-classifications for the types of allowed dwellings, structures, density etc. Discrimination is not allowed, so zoning ordinances must apply equally to all properties within the classification or sub-classification.
There are exceptions in some cases, that apply equally to all, so let’s take a look…
Non-conforming use:
This exception typically occurs when a structure has been built prior to a change in a zoning ordinance. Imagine a structure that was built in 1983 and the zoning classification was changed in 2009, thus changing the original allowed use. Of course the structure exists, but it is now a non-conforming use within the current zoning.
In this example the real property owner would typically not be forced into compliance with the current zoning, so the property use might be allowed as a variance. If for some reason the structure was demolished, then any new structure would typically need to comply with the current zoning classification requirements to be permitted.
Conditional use permit:
These are uses that may be formally approved by filing for a Conditional Use Permit. The application will need to be reviewed and approved by the planning department or the zoning board.
I had a project where mother-in-law apartments were not allowed in the Rural-5 (R-5) zoning classification, however several of my buyers were able to place them above garages, or as detached dwelling units. How? They applied and received approval for Conditional Use Permits. Once approved, these separate dwelling units were legally constructed as an approved conditional use. So, remember to look not only at the allowed uses in the zoning classification, but also the conditional uses.
Incentive zoning:
Cluster developments. If you read my post titled High Density Zoning in Land Development this area is covered, but in a nutshell the concept of incentive zoning is based upon the concept of using a portion of land in the project for development and leaving the rest as protected space in perpetuity (forever). In exchange for using only a fractional portion of the land, the developer is allowed higher density in the portion to be improved.
I did a conceptual layout for a project that would have taken the lot yield from 124 five acre lots to 325 Rural Cluster Lots. In the end I did not do the Rural Cluster option for certain reasons, but this example shows the degree to which some permitting authorities will go to incentivize developers to cluster. In this case the lot size was reduced in size for increased density, plus a 20% lot bonus was in offered by the county as part of the cluster ordinance.
Rezoning:
I’ve never done it and I probably wouldn’t try it, at least on purpose. This avenue is for the planning / zoning departments in my opinion, not so much for the private developer. I have witnessed rezoning procedures backed by large private development organizations and it is a slow and arduous procedure with plenty of public hearings and interdepartmental buy-off necessary.
Enough said, except for one thing: - I suggest being on top of any planned zoning changes and to understand their effect on any property that you have an interest in.
Interlocal agreements:
At one time I took over 530 acres for a guy that had owned it for some time and he was super stuck on his plat applications. It was fee simple land owned within the boundaries of a federally recognized Native American Tribal Reservation. It was a dual-jurisdictional approval process for the plat applications. This was just plain taking what’s already hard and making it twice as hard!
Worse, from the beginning he was in trouble because the County had the land zoned as 5 Acre Residential (R-5), but the Tribes had it zoned 20 Acre Residential (R-20). Since the two jurisdictions couldn’t even agree on the zoning designation I’ll bet you can guess how messed up that part was!
It worked out in the end, mostly because he gave up and sold the land to the tribe for a decent price, but the moral of the story is this - make sure you know who has permitting authority and if it’s dual jurisdiction, that the zoning designations are in agreement.
Wrap-up:
Take good care with zoning issues and understand the zoning ordinances in effect for any given parcel. Don’t forget conditional use as an option and stay away from property that needs to be rezoned, at least as far as I am concerned. Finally, don’t confuse zoning designation with tax classification. They aren’t the same thing!
