Monday, March 5, 2012

Zoning Regulations

From my understanding, zoning regulations are being tested with increased frequency on the MBE. A few points in this post about zoning, and feel free to comment with questions on zoning that aren't addressed here:

First, the power allowing the government to enact zoning regulations is found in the police power (to protect the health, safety, and general welfare of the public). In determining whether a zoning regulation is valid, you should apply rational basis scrutiny, and the regulation will generally pass provided that it is reasonably related to these objectives.

Occasionally, a situation will arise in which the use of a person's property was legal, but then became illegal once the zoning ordinance was passed. This is known as a nonconforming use, and this use is allowed to continue (this is sometimes referred to as "grandfathered") provided that the nonconforming use is continuous. Note that this use can not be expanded or changed in such a way that the use of the property becomes something other than it was prior to the zoning ordinance taking effect. If this were to occur, then the use would lose its nonconforming use status, and it would be regulated as per the zoning ordinance. Further, if the use is abandoned, the use loses its status as a nonconforming use.

A variance, on the other hand, is a use that begins after the zoning ordinance has taken effect, but it is allowed nonetheless, provided that the owner can show special circumstances, and undue hardship. There are limitations on variances, the most important being that the variance can not be inconsistent with the general character of the neighborhood, and the variance can not unreasonably interfere with a neighbor's enjoyment of his/her own property.

A heavily tested area is an owner attempting to place a covenant in a deed, and the covenant conflicting with the zoning ordinance. Covenants can be more restrictive than a zoning ordinance, but if the covenant is less restrictive, and would allow a buyer to violate a zoning ordinance, the covenant will not be given any effect.


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