Government Regulation of Land - Zoning

Question 1

What is a zoning ordinance?

If the ordinance contains a special exception by obtaining a special-use permit, must the government issue the permit if the property owner complies with the procedures for obtaining one?

Answer 1

A zoning ordinance is a governmental regulation regarding land use that, for example, limits the use of a particular area to single-family residences.

The ordinance may include a special exception permitting a particular future use of property if a special-use permit is obtained.

• If a property owner complies with the procedures for obtaining a special-use permit and establishes entitlement to that permit (as the psychiatrist did here), the responsible government agency must issue the permit. Therefore, the zoning commission cannot properly deny the psychiatrist a permit.*
• *If the property owner is denied a permit, procedural due process typically gives the owner the right to appeal the denial to a reviewing entity (eg, a board of zoning appeals).*

Question 2

When does a vested right regarding a nonconforming use of propery exist?

Answer 2

A vested right regarding a nonconforming use of property exists when, at the time a zoning ordinance takes effect, the property owner is using the property in a manner that violates the ordinance.

Question 3

Is proof of unnecessary hardship needed to obtain a special use permit?

Answer 3

NO.

Proof of unnecessary hardship is not needed to obtain a special-use permit.

• However, such proof is required to obtain a variance.*
• Under a variance, a local government (often a zoning board) gives a landowner permission to use his/her property in a manner that is not permitted under the zoning ordinance—eg, the use falls outside of a special exception.

Question 4

Nonconforming Use

Answer 4

1) Existing nonconformance
* Property owner’s existing use of property that conflicts with new or modified zoning law can continue until:
i) use is enlarged, changed, or abandoned OR
ii) if provided by zoning law, amortization period passes or use not registered
2) Planned nonconformance

• Property owner’s planned nonconforming use of property can proceed if right to use has vested
• Vested right exists if, at time zoning law or modification takes effect, property owner has:

i) secured any necessary permits in good faith (e.g., building permit) AND
ii) made substantial progress toward achieving the nonconforming use (note that in a few states, securing a permit by itself is sufficient).

Question 5

Can a property owner whose nonconforming use predates a zoning ordinance, switch to another nonconforming use, after the ordinance becomes effective?

Answer 5

NO.

Question 6

Does non-physical enlgargement of a business constitute enlargement of a nonconforming use?

Answer 6

NO.

The right of the person currently entitled to possess the property (i.e., a lessee) can be lost in various ways, including enlargement of the nonconforming use.

However, conduct by a business owner that leads to more consumers typically does not constitute an enlargement when the conduct does not involve a physical expansion of the property or the buildings on the property.

Acts such as increasing the number of days that the business is open, or modernizing equipment involved in the nonconforming use, usually is not sufficient to constitute an enlargement of the nonconforming use.