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Zoning in the US is essentially a local matter. Even the decision on whether to operate a zoning system is usually a local one. Some localities have highly sophisticated zoning systems; some have none at all. But however complex a zoning system may be, it typically remains what it always has been: ‘a process by which the residents of a local community examine what people propose to do with their land, and decide whether or not they will permit it’.
The distinction between the ideal of planning and the reality of zoning is an important one. Planning is concerned with the long-term development (or preservation) of an area and the relationship between local objectives and overall community and regional goals. Zoning represents a major instrument of this; but it is more. Indeed, it has taken the place of the function to which it is supposedly subservient. One of the reasons for this is that responsibility for land use controls has been delegated to the lowest level of local government. These local authorities have traditionally been concerned with attracting development to their areas but, since the 1970s, there has been increasing pressure from electors for their communities to be preserved as they are (or at least safeguarded from unwelcome uses such as industry, apartments and low income housing). The powers of zoning provide a very effective tool for this-a tool that can be wielded with a skill that thwarts judicial action. The contrast with planning is a sharp one: a comprehensive plan would deal not only with the needs of the existing inhabitants of an area, but also with its role in meeting the needs for housing newcomers.
Local governments carry out their zoning and planning powers within the framework of powers conferred on them by the individual states, either by constitutional home rule authority or by a specific enabling Act. What has to be said, however, is that though some states exercise varying degrees of control over local governments, most do not.
Both the federal and state constitutions include provisions which are binding on municipalities. One of the most important of these is the protection of property rights. The Fifth Amendment to the Constitution provides: ‘nor shall private property be taken for public use without just compensation’. The ‘taking issue’ (alternatively known as the ‘just compensation issue’) is at the heart of the major problem facing zoning: when does the exercise of the police power over land use constitute such an infringement of the property right as to become a ‘taking’? The crucial matter, of course, is the definition of a ‘taking’.
The Fifth Amendment also includes what is termed ‘the public use doctrine’: that property can be ‘taken’ only for a public use. The interpretation of this doctrine has changed significantly in recent decades (illustrating the changes that can take place in the constitutional framework). Until the early 1950s, it was conservatively interpreted as meaning that property which was taken had to be literally used by a public body. Later cases have further extended ‘the public purpose’.
While zoning is concerned with the use of land, subdivision regulations relate to the division of land for sale. Originally designed to keep track of the legal ownership of land and to facilitate the establishment of clear titles (thus simplifying transactions), it has grown into a formidable tool of land use planning. Published in 1928 by the US Department of Commerce, the Standard City Planning Enabling Act defines subdivision as ‘the division of a lot, tract, or parcel of land into two or more lots, plats, sites, or other divisions of land for the purpose, whether immediate or future, of sale or of building development.’
Though subdivision and zoning are quite distinct in origin, they have come to share some important control features. With zoning, these are built into the zoning ordinance or imposed in the administration of the ordinance. Subdivision has acquired similar features (though it is usually applied only to residential development). The first controls were restricted to matters relating to roads. These ensured, for instance, that any streets built in a subdivision would be aligned with existing streets. These controls were extended to deal with the width of streets and sidewalks, setbacks and such like. This enabled local governments to prevent the creation of lots that were unacceptably small or badly configured. But it also gave them the scope to impose conditions relating to ‘improvements’. It was not a big step, politically, to move from requiring that roads be a certain width to making the actual provision of the roads a condition of subdivision.
Large lot zoning has the ostensible purpose of safeguarding the public welfare, for example by ensuring that there is good access for fire engines, that roads do not become unbearably congested, or that there is adequate open space. These and similar worthy objectives appear frequently in zoning cases, as does an alternative formulation: to keep out undesirable (that is different) people, and to maintain the social and economic exclusiveness of an area.
The Floor Area Ratio (FAR) regulates building bulk while providing the developer some latitude in determining the height of a building and its placement on the lot. It can be expressed as the total floor area divided by the total lot area. Another way to view it would be to take the FAR and multiply it by the lot area. This would equal the total amount of allowable floor space. It simply represents the maximum amount of floor space that can be built on a given lot. The FAR is usually expressed as a decimal fraction.
There are some uses which, though permissible (and necessary), require review to ensure that they do not have an undesirable impact on an area. Hospitals, schools, day-care centers, and clubs, for example, are needed in a community, but their specific location may give rise to traffic congestion and dangers, or to severe parking difficulties. Similarly with gas stations in commercial districts, and multifamily dwellings in a single-family district. Zoning ordinances typically make specific provision for such developments which require special restrictions. Though terminology varies among municipalities, these are appropriately termed ‘conditional uses’.
In order to obtain a conditional use permit, applicants must follow the procedures dictated by the community. First, they must file an application for the conditional use permit. The permit would contain information on such items as a legal description of the land, a parcel map outlining the land in question and all adjoining properties, a deed showing ownership of the land, a plan showing what you want to do to the property, a signature by the owner of the property, and the necessary application fee. The application is then processed by the appropriate governing body.
Notices are placed in various locations to alert other individuals and entities that a conditional use permit is being sought by a property owner.
While a conditional use is one which is permissible under the conditions of the zoning ordinance, a variance involves a relaxation of the provisions of the ordinance. The Standard State Zoning Enabling Act confers on the board of adjustment the power ‘to authorize upon appeal in specific cases such variance from the terms of the ordinance as will not be contrary to the public interest, where, owing to special conditions, a literal enforcement of the provisions of the ordinance will result in unnecessary hardship, and so that the spirit of the ordinance shall be observed and substantial justice done. Variances are of two types: ‘area’ (or ‘bulk’) and ‘use’. The former involves a departure from the requirements of the ordinance in relation to such matters as lot width, lot area, setback and the like. It recognizes that not all property is created alike. It allows unique circumstances to be considered by the regulatory body. By contrast, a use variance allows the establishment (or continuation) of a use which is prohibited by the ordinance. Allowing a house to be built closer to the lot line laid down in the variance would be an area variance; allowing a multifamily house in a single-family district would be a use variance. The hardship theoretically has to be one which applies to a particular property, not to the personal circumstances of the owner. The rationale for this is that the matter for consideration is the relationship between the particular plot and the wider area. Any effect which a variance has on this wider area will persist after a change of ownership, or even if the hardship ceases. In fact, many variances are given precisely because of personal hardship.
Contract zoning and site plan review
Zoning theoretically requires uniform conditions within districts. Uniformity, however can lead to undesirable rigidity, and it may be to the benefit of both the owner and the community to depart from a uniform regulation. It is here that contract zoning can be useful.
Essentially, contract zoning is, as the term suggests, the rezoning of a property subject to the terms of a contract. The process appears to be one in which the city informs a property owner that it does not have to rezone the property in question. The next step would be for the city to say it might rezone the property if the property owner agrees to do something in return. Typically, the terms of any agreement are negotiated between the owner and the local government following a specific proposal by the owner.
Many of the conditions that have been imposed are now normally included in ‘site plan review’. This is the preparation of a site plan for approval by the planning board. Such a review can be a normal zoning requirement, or a special requirement for particular types of development such as cluster zones and planned unit developments.
Site plan reviews are needed to make sure the proposed development is in compliance with local zoning and other municipal ordinances. Plans to be reviewed generally take the form of a preliminary plan and a final plan. However, it is possible in some areas that a developer might choose to submit a final plan for review. It is a process ripe for negotiation between developer and public officials. The items to be reviewed might include a dimensional site plan, consistency with applicable zoning ordinance, landscaping, drainage, and compatibility with neighboring structures and the surrounding environment. Among the personnel that might review the plan are planners, zoning administrators, public works officials, building officials, street officials, etc. These individuals will determine whether the proposed site plan is in accordance with municipal zoning and the general plan, creates any public facility or traffic problems, complies with all other municipal requirements, and contributes to the protection of public health, safety, and welfare.
A zoning amendment (or ‘rezoning’, or ‘map amendment’) is similar to a use variance in that it permits a use which is not allowed by the provisions of the zoning ordinance. However, while a use variance grants the owner an exemption (and leaves the ordinance intact), an amendment changes the ordinance itself. An amendment should be of greater consequence than a variance but practice does not always conform to theory, or even legality.
Before you proceed, be sure to consult with an experienced Bountiful Utah real estate lawyer. The lawyer will review your documents and also advise you on the zoning rules applicable to your property. Zoning rules are very important. Never assume that the property you are purchasing for a specific purpose can be used for that purpose. Sometimes zoning rules may not permit the use of a property for a specific purpose. Utah zoning laws are complex. You need the services of an expert to guide you. So before you buy a property, talk to an experienced Bountiful Utah real estate lawyer.
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When you need legal help with a real estate matter in Bountiful Utah, please call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you.
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506