Zoning and land use laws refer to the government’s regulation of the way land is used and developed. They are used by municipal governments to control and even guide the way that land usage and property development evolve and expand within their jurisdictions. Nearly all major urban areas have some form of zoning laws. 

 

 On a basic level, zoning laws divide land into one of four categories: residential, commercial, industrial, and recreational. These areas are separate from each other and relatively consistent within their respective boundaries. Restrictions within each zone can be very complex and specific, governing everything from the type of buildings permitted (including distance from street, size, height, number of rooms, floor space, cubic space, etc) to the location of power and communication lines, parking, buildings permitted per lot, etc. 

 

The primary purpose of zoning laws, however, is not to govern existing buildings, but rather to control and order future development. The planning process in municipalities usually results in a comprehensive scheme for the future of that municipality. This is then carried out by means of zoning laws and ordinances; all developers need to work within the framework of the comprehensive scheme. Because the overall scheme of any one municipality affects life in those surrounding it, there has been a recent movement, emphasizing the need for regional or even statewide plans for development. 

 

 

Zoning laws can become controversial, as they seek to restrict and control what an owner can do with his or her property. Furthermore, it is very difficult to precisely define the extent to which a government can control the use of private property. Courts have consistently ruled that zoning laws are perfectly acceptable, provided that they are created with good reason, that is, it must be seen to affect the health, safety, comfort, morals, and well-being of the public. Furthermore, the way in which the laws are formed and applied must be seen as both reasonable and necessary for attaining the desired end. These guidelines are not concrete, and consequently, disputes and even litigation are bound to arise because of varying interpretations. 

 

The constitution prohibits the public taking of private property without just compensation. The question has been raised, with regard to extreme cases of zoning laws, as to whether they violate this constitutionally provided right. It has become increasingly difficult for municipalities to take private property from developers for public purposes by means of zoning laws and ordinances. In these instances, the government is forced to use eminent domain and condemnation, and consequently must provide the owner with just compensation.

 

There are even further restrictions on the government’s right to control the use of private property and any of them can serve as a basis for contesting zoning laws. Zoning laws cannot be arbitrary; they must take into consideration a variety of factors, including the municipality’s needs, the goal of the regulation, the details of the land (location, size, physical features), the environment of the neighborhood, the effect on the value of the property, etc. Zoning should aid in brining about a good for the municipality as a whole, in conjunction with the comprehensive scheme for its growth.

 

The process of “spot zoning,” that is, of zoning an single parcel of property differently than those around it (which is usually done for the sole benefit of the owner of the property), can be challenged. There must be a clear and legitimate reason for the distinction of one parcel from though that are around it. Restrictions based upon race are prohibited and the sole basis for discrimination against race or religion is if it can be definitively proved that there would be no other way to serving the overwhelming interest of the rest of the community. 

 

Because of the possibility of disputes, many places have zoning appeal boards. These are not actually judicial bodies, but they can conduct hearings which involve witnesses under oath; the decisions they make are subject to the review of a court. Clearly, because of the complexity of zoning laws, an owner disputing a decision should look for legal counsel. Those on the zoning board, the municipal attorney, and others involved, all have considerable experiences dealing with the nuances of the law and its interpretation. An owner who does not bring an equal amount of knowledge and experience is unlikely to present a convincing argument.

If you think you might have a Commercial Real Estate case, Contact our Commercial Real Estate Lawyers Immediately for Help.

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Answers and Information
An introduction to Commercial Real Estate with answers to frequently asked questions.

Contracts and Closings
A guide to Contracts and Closings.

Condemnation and Eviction
A guide to Condemnation and Eviction.

Construction
An overview of Construction.

Landlord Tenant Relationship
A guide to and explanation of the Landlord - Tenant Relationship.

Zoning
A guide to understanding Zoning laws and issues.