Tuesday, January 31, 2017


As stated earlier on this blog, any attempt to predict exactly what will be tested in the new topics in Real Property for the February exam will inevitably contain some speculation.  That said, the NCBE has claimed that additional topics in the area of zoning will be tested and two concepts I'd think worth understanding are 'grandfather clauses' and the differences between cumulative and non-cumulative zoning. 

Grandfather Clauses: Assume that at the time you purchase property it is not subject to a certain zoning regulation, and then later the regular is implemented. When you try to sell that property will the buyer be burdened by the regulation?  A grandfather clause in a zoning ordinance is a provision in which business enterprises or class of persons are exempt from the provisions of a new rule, regulation or law.  In other words, if the use was established before the implementation of the zoning ordinance then the use will be deemed a lawful prior non-conforming use.  Generally, however, it is presumed that these non-conforming uses will eventually come to an end.  So, if owning a factory in an area that is now zoned for residential use is deemed a lawful non-conforming use, it still may be prohibited to upgrade the factory as that will indicate a lack of intent to eventually abide by the new regulations. 

Cumulative vs Non-Cumulative Zoning: Under cumulative zoning, different zones or districts are ranked in hierarchy. Districts zoned for residential uses are known as higher districts or higher zones while other districts (such as those zoned for business) are known as lower zones.  Uses allowed in higher zones are likewise allowed in lower zones, but no use will be allowed in a higher zone than the zone in which it was first listed.  In other words, a person can build a single-family residence (a high zone) in all zones but retail shops (a lower zone) will be prohibited from building in an area deemed to be a higher zone such as a residential neighborhood. 

As an alternative to cumulative zoning, some jurisdictions use non-cumulative zoning.  Also known as exclusive zoning, only authorized activities will be permitted in each district.  So, in contrast to the above, under non-cumulative zoning, a person would not be permitted to build a single family residence in an industrial district.

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