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Zoning Vs. Property Owners Rights

by Kay Bosworth

A man’s home is his castle, so the saying goes, and a property owner should be able to enjoy his property any way he wishes. That is, unless using his property for unlawful purposes runs him afoul of the zoning officer. Land-use laws vary by state and even among municipalities within a state, so property owners should be aware of what their town considers acceptable use of their property.

Land Use

Municipalities govern their use of property as well as future growth and direction by preparing master plans and establishing land-use laws. The master plans lay out districts dedicated to residential, commercial and industrial development. Within those districts, specific types of development can be included, such as single-family or multi-family homes, school zones, or historic areas.

Zoning

The master plan is implemented through zoning laws -- ordinances adopted by the governing body -- that control building regulations. Developers seeking to build in the municipality must adhere to those ordinances. Zoning laws spell out the types of buildings allowed and other specifics including building density; height and floor area; front, rear, and side yard setbacks; location of streets and utilities; parking, lighting and signs in commercial and industrial zones; and historical preservation.

Property Owners

Development applications are heard by a municipal planning board whose members are charged with testing such applications against the zoning laws and master plan. Comments and suggestions are invited during public hearings. Zoning laws and land-use regulations often conflict with the rights of property owners to use their property however they choose, whether it is a homeowner wishing to add a deck to his house or a developer with a massive plan for a retail complex. Zoning compliance officers are authorized to cite property owners they deem in violation of zoning laws. Municipalities establish bodies, generally called zoning boards of adjustment, to hear appeals from zoning regulations.

Appeals

If a property owner’s proposed land use or building plan deviates from the zoning requirements, he must seek a variance from one of the zoning boards. The board holds public hearings in which the applicant can present his proposal and hear public comment. To win a variance, the applicant must convince the board that he will experience a financial hardship without it. If a structure does not meet a new zoning law, the building could be ruled a legal non-conforming use.

Constitutional Rights

A basic right of the U.S. Constitution prohibits the government from taking private property without compensation. In a 2005 case, the U.S. Supreme Court upheld the right of a Connecticut town to use the concept of eminent domain -- the constitutional right to take property for a public purpose --to seize private property to be developed as a manufacturing facility. Developers also have challenged the demands of local governments to require them to donate parts of their land for sidewalks, parks or other public uses.

About the Author

As a long-time newspaper reporter and staff writer, Kay Bosworth covered real estate development and business for publications in northern New Jersey. Her extensive career included serving as editor of a business education magazine for the McGraw-Hill Book Company. The Kentucky native earned a BA from Transylvania University in Lexington.

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