​

Land use law is a relatively new area. With population growth in the 20th century and the trend toward urbanization, it became clear that an individual’s use of property could have a negative impact on the health, safety, and welfare of the whole community. As in many areas of law, the rights of the individual had to bend for the good of the community. Regulation of the use of real property (land and buildings) now occurs at all levels of government and comes from all three branches.

​

Zoning is the division of a municipality into districts, with different standards for uses, intensity of use, and structures in each. Many municipal zoning codes can be found online. Zoning is generally preceded by planning. Some states require that zoning be consistent with a comprehensive land use plan that was developed with public input, following specific procedures. A typical plan will create areas for different types of industrial, commercial, recreation or open space, and residential uses. The districts may list conditional or special uses that are permitted if certain conditions are met. For example, a place of religious worship might be permitted in a residential district if it provides adequate parking. The plan should take into account matters such as compatibility, such as when a house is next to a noisy nightclub, the availability of infrastructure like adequate fire and emergency services, and characteristics of the land itself.

 

Exceptions to Zoning: Nonconforming Uses and Variances

​

Decisions on individual properties, including those involving conditional uses, nonconforming uses, variances, and rezoning of specific parcels, are typically handled in administrative proceedings. “Nonconforming” uses that lawfully existed before zoning rules prohibited them are typically “grandfathered” and allowed to remain until they are abandoned, destroyed, or amortized for a reasonable number of years. If zoning presents a hardship, an owner can seek a variance. While a dimensional variance, such as allowing a driveway nine feet rather than 10 feet from the property line, may be relatively easy to obtain, a use variance, such as allowing a store in a residential area, is typically very difficult to obtain.

​

Zoning Conflicts

​

Since zoning involves competing interests, local governments are constantly exploring new techniques to resolve conflicts. For example, the owners of estate homes, each on a full acre, may love their view of a prairie field. The owner of that field may want to build 500 homes on 100 acres, including several small townhouses that will be affordable to low-income individuals. The estate owners object to this plan, while the developer claims that zoning for large lots is exclusionary by keeping low-income people out of the area and reduces the value of the property. The municipality might compromise by allowing a planned unit development (PUD), with the dwellings clustered together and surrounded by open parkland, and perhaps even a small commercial area at the entry.

Last updated December 2018