Zoning

Question 1

What is Zoning?

Answer 1

Zoning is the division of a jurisdiction into districts in which certain uses and developments are permitted or prohibited

Zoning law is public law (versus private)

Compared to Covenants: Covenants can be enforced by private property owners at law or in equity. Zoning is not subject to enforcement by private suit, but can be enforced only by local governmental officials.

Question 2

Nonconforming Use

Answer 2

● A nonconforming use is a use of land that lawfully existed before the zoning ordinance was enacted, but that does not comply with the ordinance.
● Most ordinances prevent the expansion of a non-conforming use.
● A non-conforming use cannot be transformed into a different nonconforming use.
● Although minor repairs are permitted, major alterations, or structural repairs that will extend the duration of the use are not permitted.

Termination of Nonconforming Use:

● The right to continue a nonconforming use is terminated by (a) abandonment or (b) destruction.
● Abandonment occurs only if (1) the owner intends to abandon the use, and (2) the use is discontinued for a substantial period.
● Destruction of a structure containing a nonconforming use terminates the right to continue to use, even if the destruction is accidental.

Question 3

Variance

Answer 3

● A variance is a permitted deviation from strict enforcement of a zoning ordinance in an individual case due to special hardship. It permits a particular parcel of land to be used in a way that would otherwise violate the zoning ordinance.
● An area variance allows modification of height, location, setback, size, or similar requirements for a use that is permitted in the zone.
● A use variance allows a use that would normally be prohibited in the zone.

Question 4

Standard for Granting a Variance

Answer 4

● A variance may be granted based upon (1) the property owner’s hardship, such that the owner’s property cannot be put to a reasonable use under the existing zoning ordinance due to some special characteristic of the property itself that is not generally shared by other parcels in the district, and (2) the impact of the variance on the neighborhood or zoning district, such that the variance will not alter the essential character of the area.
● A variance will not be granted if:
○ The owner created the hardship
○ The hardship is based on the owner’s personal hardship (personal hardship is irrelevant, must be based on use of property)