Land use and zoning is an area of law “associated with the tension between the landowner doing what they want to do with their private property and the government having the ability to regulate what the owner can do through its police power,” says Texas eminent domain attorney Charles B. McFarland. Show
It’s one of the four restraints on private property, he says. They are:
“Your ability to use your property is subject to the police power,” he says, “through which the state can regulate what you do” for general welfare and safety. Most land use and zoning laws are at the state and local levels. A number of federal laws are also relevant, particularly environmental regulations and the management of public lands. This article will cover some of the basics of land use and zoning—the things you need to know as a real estate owner or developer. Because land use varies by state and locality, getting a local lawyer’s expertise is essential. What Is the Purpose of Land Use Laws?Land use laws are intended to regulate the use and development of property in a way that benefits the public. Two primary ways that land use regulations do this are:
Local governments are typically the main player in creating master plans for cities or municipalities. However, state laws are also important in regulating regional land use and development. Local governments enact a plan through various land use and zoning ordinances. Some Land Use Regulations Are PrivateNot all land use regulations are laws enacted by the government. Private or non-governmental land use regulations are often found in deeds or contracts that control the use and development of real estate. A couple of common ones are:
The Difference Between Land Use and Zoning LawsWhat is the difference between land use and zoning? “Zoning is one form of land use control,” says McFarland. It’s a subset of land use. Other forms of land use control include building codes, historic preservation laws, and environmental regulations. Zoning maps divide a town, city, or municipality into various zoning districts. The most common types of zoning include:
Zoning requirements vary by locality but typically address issues such as:
The districts created by zoning laws are relatively uniform for their specific purpose. Meaning your house won’t be next to a factory, while restaurants and stores will be grouped near one another. Being a NoncomformistIf a municipality passes new zoning laws and a property owner or developer’s use of land doesn’t comply with the new regulations, it’s called a nonconforming use. “As neighborhoods or areas develop, a city or municipality may decide that it would like to see an area take on more than industrial use,” says McFarland. And so, the municipality might rezone an industrial area to allow for commercial or residential uses. What happens to the property owners who were already in the rezoned area? When rezoning happens, a property owner may lawfully continue with the nonconforming use. A couple of ways this can happen is by obtaining a conditional use permit or a variance. Essentially, these are exceptions granted by the local government for the property owner to continue using their property in the nonconforming way. It’s important for property owners to realize that their property “is held subject to the government’s right to regulate it,” says McFarland. To some extent, the possibility of “zoning changes are like a rent you pay for living in that municipality. … In other words, you have subjected yourself to the local government’s power to control your use of your property.” However, “if you have taken steps to develop your property towards a commercial use, and the municipality then tries to change the land use, you may have vested rights in continuing your prior use of property despite the change in land use restriction,” says McFarland. Under a vested rights claim, the property owner “gets to do what they were going to do” before the rezoning, says McFarland. “Or they have the opportunity to sue for compensation.” Finally, it’s essential to know that there are limits to the government’s police power and its ability to regulate through land use laws. “Not every regulation or restraint on the use of property is a legitimate exercise of the police power,” says McFarland. While legitimate exercises of the police power mean no compensation for property owners impacted by the regulation, sometimes the government’s land regulation “can bleed into eminent domain,” says McFarland. When this happens, the government must pay the property owner just compensation (based on the value of the property) for taking their land for public use. Questions for a Land Use & Zoning AttorneyIf you are a property owner or developer who is facing rezoning or other land use regulations that impact your use of your property, consider speaking with a land use & zoning lawyer. Most land use & zoning lawyers provide free consultations, which help you decide if the lawyer or law firm is right for you. To get the most out of a consultation, ask informed questions such as:
Once you have met with a lawyer and gotten your questions answered, you can begin an attorney-client relationship. Look for a land use & zoning lawyer in the Super Lawyers directory. Search ArticlesFind articles published by Super Lawyers Search Land use/zoning United StatesLand use and zoning is about the “tension between the landowner doing what they want to do with their private property and the government having the ability to regulate what the owner can do through its police power.” Has become the primary method of local land control?The primary public land-use control is zoning, where properties of the same type, such as residential or commercial, are designated for particular geographic zones.
Which one of the government powers permits local governments to place a lien against property?Federal, state and local governments have the power to take your property for public use. This is known as the government's power of eminent domain.
Which term refers to the ordinances regulations that protect the community and control property development within subdivisions?The most common form of land-use regulation is zoning. Zoning regulations and restrictions are used by municipalities to control and direct the development of property within their borders.
What is the primary consequence if a property use violates a zoning ordinance?What is the primary consequence if a property use violates a zoning ordinance? The property taxes increase.
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