Zoning law, and variances from it, are an arcane area of the law that is important for the real
estate practitioner to understand, and the general practitioner, as well. Zoning affects real property,
and sometimes personalty that becomes a fixture, and the consequences can cause extended
litigation, and can severely restrain the practical (though not necessarily legal) ability to convey
Zoning is typically administered by local zoning boards of adjustment, usually in conjunction
with a local municipal authority, and the results are accorded a high degree of judicial respect and
a general reluctance to overturn a zoning decision. (See In Re Town of Cortlandville Zoning Bd.,
NYLJ 12/5/2000 1:5-6).Zoning is a legal limitation, created by a legislature or municipal authority, designed to place
similarly used properties in close proximity with other like properties. Usually, though not always,
it is part of a master plan designed to obtain the highest, and best use.
Setbacks, or the distance from the property line to buildings on real property. If your community requires 20 feet from each house to the edge of the property on the side yard, and you want to build on an extension as a family room, if the design comes, say, to within 18 feet of the property line, a variance is required -- permission to build it that way. If permission is denied, you must conform to the zoning requirements
Landscaping or similar changes. Most zoning laws have requirements for greenery or other improvements. This is typically called site plan work.
First of the contemporary American zoning laws took place in 1916, in of all places, New York City. It was a part of a master plan whose purpose -- back then -- was to limit the size of then-imposing skyscrapers, whose widespread building had just begun, and eliminate what is still referred to as old-law tenements that trapped a nation of immigrants on the lower East side, as well as uptown.
(The Woolworth Building, at 233 Broadway, in lower Manhattan, still a tourist site, was the tallest building in the world at 65 stories when it opened in 1913. Old law tenements, a railroad car style of apartment, were built mostly between 1880 and 1916, and are still in use today -- though nearly all have been rehabilitated to upscale apartments).
Fear of the loss of sunlight, and air, were behind these original zoning laws -- something that has not been lost on the draftsmen of other strikingly similar statutes that have evolved in communities, nationwide, in the intervening century.
Ingess & Egress
Ingress and egress from a property. This can range from a driveway to a road. Zoning boards can be required to pass on or approve a request to widen a home's driveway, too, if it deviates from the accepted norms for size.
Height variance. If your community allows houses of no more than 2 1/2 stories, and you want to build a three story house, it's to the zoning board that you go. Is there a real height difference in that last half story? Maybe not, but the zoning laws require permission, anyway.
To change the zone from one classification to another. For example, to go from rural agricultural to highway business, or from residential to neighborhood business, or from one type of residential use (perhaps a one family house) to another (a two family house).
Approve a change based on a prior non-conforming use to the property. Initially, a municipality's building officer or construction official is typically the starting point in any zoning determination. Proposed building plans or changes to the property are shown to the construction official who can grant a permit, or deny it. If it is denied (because the official believes that it deviates from the administrative zoning code), the next step is an appeal to the zoning board.
Once a decision is made to seek a variance from the existing zoning laws, the local state statute concerning zoning appeals comes into play. It varies from state to state, but there are some general guidelines as to what basis variances can be granted:
A typical homeowner's appeal is from the decision of an administrative officer (the construction official) which seeks additional living space for a minor change (a few feet here or there). Sometimes the homeowner represents themselves; other times, a lawyer wi
How Lawyers Ask for Relief
Lawyers, on their clients behalf, are entitled to seek relief from the zoning ordinances. The typical way is by asking for variance relief on the basis of hardship (for example,
on the basis of substantial benefit to the community or parcel of land
Here are some of the other reasons:
oChange in use of the property.
oConditional change in use of the property (either based on applicant's agreement to make certain changes or improvements, or for a limited period of time).
oNon-conforming use change. Sometimes a property's zone has been changed (for example from one type of residential to another, or even from farmland to residential) and at a later point in time, an addition or change or modification is proposed. It might now be allowed (because the authorized use is now different) but makes sense because it goes with the property, anyway (a porch that the owner wants to screen in and winterize, for example). Approval of the zoning board is needed.
Dealing with Objectors
The issue is as old as the Bible. In Leviticus (19:18), "Thou shalt love thy neighbor as
thyself." Yet it must be tempered with the remarks of John Donne in Devotions (1624) that "No man
is an Island, entire of itself; every man is a piece of the continent, a part of the main."
Not every variance -- even by a homeowner seeking something modest -- will be approved
by a local zoning board. This is particularly true when there is a serious objection by a neighbor who
has good reason -- not simply a grudge match.
Zoning boards constantly must consider on one hand the claimed needs of the applicant and
measure on the other the needs of the neighborhood and the community as a whole.
To even get to the consideration, however, there must be an objector. What they become
engaged in is part of a process of municipal civics, and the cause of their interest is usually a legal
requirement that all property owners o
Additional resources provided by the author
Thompson West www.westlaw.com William A. Cox, New Jersey Zoning and Land Use Administration
(2008 edition). Newark: Gann Law Books, 2008.
Anderson on Zoning. Rochester: Lawyer's Cooperative Publishing