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What Real Estate Owners Should Know About Land Use Laws

Understanding how the use of your property is regulated

Land use and zoning is an area of law “associated with the tension between the landowner doing what they want to do with their private property and the government having the ability to regulate what the owner can do through its police power,” says Texas eminent domain attorney Charles B. McFarland. 

It’s one of the four restraints on private property, he says. They are: 

  • Taxation 
  • Eminent domain, when the government takes private property (with just compensation) for public use  
  • Escheat, when ownership of someone’s personal property reverts to the state because there are no heirs to inherit the property 
  • And police power, which empowers the government to make laws providing for the general welfare 

“Your ability to use your property is subject to the police power,” he says, “through which the state can regulate what you do” for general welfare and safety. 

Most land use and zoning laws are at the state and local levels. A number of federal laws are also relevant, particularly environmental regulations and the management of public lands. This article will cover some of the basics of land use and zoning—the things you need to know as a real estate owner or developer.  

Because land use varies by state and locality, getting a local lawyer’s expertise is essential.   

What Is the Purpose of Land Use Laws? 

Land use laws are intended to regulate the use and development of property in a way that benefits the public. Two primary ways that land use regulations do this are: 

  • Divide a city or municipality into zones for different purposes 
  • Create a comprehensive plan for the future development of a city or municipality  

Local governments are typically the main player in creating master plans for cities or municipalities. However, state laws are also important in regulating regional land use and development. Local governments enact a plan through various land use and zoning ordinances. 

Some Land Use Regulations Are Private 

Not all land use regulations are laws enacted by the government. Private or non-governmental land use regulations are often found in deeds or contracts that control the use and development of real estate. A couple of common ones are: 

  • Easements. Easements give someone who doesn’t own a piece of property the right to use a portion of that property in some limited way. Someone might have an easement on their neighbor’s property for a driveway or entrance that leads to their own property. The neighbor who owns the easement doesn’t own their neighbor’s property, but they have a right to use a portion of the neighbor’s property for a specific purpose (entering and exiting their property).  
  • Restrictive covenants. Restrictive covenants are found in deeds. As the name implies, they are provisions that restrict or, in some cases, prohibit certain uses of a property. As example, a restrictive covenant might require a homeowner to join a homeowners association to preserve a neighborhood’s aesthetic or historic qualities. 

The Difference Between Land Use and Zoning Laws 

What is the difference between land use and zoning?  

“Zoning is one form of land use control,” says McFarland. It’s a subset of land use. Other forms of land use control include building codes, historic preservation laws, and environmental regulations.  

Zoning maps divide a town, city, or municipality into various zoning districts. The most common types of zoning include: 

  • Residential zones for single-family homes, multi-family homes, condominiums, apartments, etc. 
  • Industrial zones for manufacturing, machinery, factories 
  • Commercial zones for businesses, retail, and other commercial properties 

Zoning requirements vary by locality but typically address issues such as: 

  • The types of structures that are allowed 
  • How big buildings can be 
  • How far back buildings can sit from the road 
  • The size of plots or yards and boundaries 
  • How many structures can be on a single property 
  • Parking lots and off-street parking 
  • Where utility lines go 

The districts created by zoning laws are relatively uniform for their specific purpose. Meaning your house won’t be next to a factory, while restaurants and stores will be grouped near one another. 

Being a Noncomformist 

If a municipality passes new zoning laws and a property owner or developer’s use of land doesn’t comply with the new regulations, it’s called a nonconforming use.  

“As neighborhoods or areas develop, a city or municipality may decide that it would like to see an area take on more than industrial use,” says McFarland. And so, the municipality might rezone an industrial area to allow for commercial or residential uses.  

What happens to the property owners who were already in the rezoned area? 

When rezoning happens, a property owner may lawfully continue with the nonconforming use. A couple of ways this can happen is by obtaining a conditional use permit or a variance. Essentially, these are exceptions granted by the local government for the property owner to continue using their property in the nonconforming way.  

It’s important for property owners to realize that their property “is held subject to the government’s right to regulate it,” says McFarland. To some extent, the possibility of “zoning changes are like a rent you pay for living in that municipality. … In other words, you have subjected yourself to the local government’s power to control your use of your property.” 

However, “if you have taken steps to develop your property towards a commercial use, and the municipality then tries to change the land use, you may have vested rights in continuing your prior use of property despite the change in land use restriction,” says McFarland. 

Under a vested rights claim, the property owner “gets to do what they were going to do” before the rezoning, says McFarland. “Or they have the opportunity to sue for compensation.” 

Finally, it’s essential to know that there are limits to the government’s police power and its ability to regulate through land use laws. “Not every regulation or restraint on the use of property is a legitimate exercise of the police power,” says McFarland.  

While legitimate exercises of the police power mean no compensation for property owners impacted by the regulation, sometimes the government’s land regulation “can bleed into eminent domain,” says McFarland. When this happens, the government must pay the property owner just compensation (based on the value of the property) for taking their land for public use. 

Questions for a Land Use & Zoning Attorney 

If you are a property owner or developer who is facing rezoning or other land use regulations that impact your use of your property, consider speaking with a land use & zoning lawyer.  

Most land use & zoning lawyers provide free consultations, which help you decide if the lawyer or law firm is right for you. 

To get the most out of a consultation, ask informed questions such as: 

  • What are your attorney’s fees and billing options? 
  • What legal services do you offer? 
  • How do I challenge a rezoning plan? 
  • Does the land use regulation amount to a taking? 
  • Am I owed just compensation? 
  • How do I get a zoning exception for my property? 

Once you have met with a lawyer and gotten your questions answered, you can begin an attorney-client relationship. 

Look for a land use & zoning lawyer in the Super Lawyers directory.

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