ZONING

In This Article
What Zoning Regulates
Permitted Uses And Special Exceptions
Special Zoning Districts
Cluster Zoning
Zoning Variances
Nonconforming Lots And Uses
Planning to Subdivide?
Beyond Zoning: Should You Build Here?
Waterfront Property
See also LAND USE REGULATIONS      View all LAND BUYING articles

Local governments establish zoning ordinances in order to regulate land use in accordance with goals set by the local planning board.  The goal of land use planning is to promote a livable, and economically viable community, balancing the needs of homeowners, businesses, agriculture, recreation, and other community priorities. A title search can establish who owns a property, but will not tell you anything about its zoning status.

WHAT ZONING REGULATES

Zoning regulations generally divide the land into zoning districts, such as Residential, Commercial, and Industrial, and further into sub-districts such as R1 and R2, each with different rules. For example one residential district may only allow only single-family detached homes, while another may allow duplexes and certain in-home businesses. In general, single-family residential districts are the most heavily regulated.

Zoning regulations typically govern the density and type of housing, including such things as minimum lot size, the required setbacks from the property lines, building height, and what percentage of a lot may be built on or paved (lot coverage).  Zoning rules may also regulate such things as parking requirements, in-home businesses, and even the legality of “in-law” or “granny” apartments, whether you can keep chickens on the property, or start a home business. The number of bedrooms may also be limited by zoning as well as by the health department in rural areas with on-site sewage systems.

The top 2 ft. was chopped off this house due to a violation of the town’s height restriction. Getting a building permit doesn’t guarantee compliance with zoning.
Click to enlarge. Photo by author

Violating zoning rules is always a bad idea, even if you have a seemingly valid building permit. If you build too close to the lot line, violate height restrictions, or build on a wetlands, you can be forced to modify or, in extreme cases, dismantle some or all of the construction.  At a minimum, you can face big legal bills and enormous headaches.  I frequently drive by a house with three feet chopped off the top of the roof (see photo) due to a violation of the height restriction in the zoning ordinance.

 

 

PERMITTED USES AND SPECIAL EXCEPTIONS

It is important to understand the zoning rules that apply to your building site. A good place to start is to pick up a copy of the zoning map and ordinances at the local town hall. Zoning ordinances typically include permitted uses and special exceptions. Permitted uses are those that are allowed without any special permission. Special exceptions need to be applied for, and are generally granted if the applicant has complied with the established standards.  Special exceptions typically require a special review by the town, and are decided on a case-by-case basis. The town may grant the exception, require additional design changes, or deny the exception. You can appeal, but need to decide whether this is worth the time and money.

An example of a special exception for land near the Chesapeake Bay in  Maryland reads as follows:

All property in Anne Arundel County within 1,000 feet of tidal waters is located in an area known as the Chesapeake Bay Critical Area. An applicant applying for a special exception within this area must submit a Critical Area report with the special exception application. This report contains written findings addressing the impact of the proposed construction on the property and the measures that will be taken to lessen or eliminate these impacts. It is important to note that the Office and Planning and Zoning will not accept an application for a special exception in the Critical Area without a complete Critical Area Report.

SPECIAL ZONING DISTRICTS

Special districts often have stricter zoning rules than standard districts, sometimes prohibiting all building. These often overlay the standard zoning district map, creating rules on top of rules. Examples include historic districts, coastal or waterfront lots, aquifer districts, environmentally sensitive areas,  steep slopes (hillside conservation districts),  ridge lines, forested areas,  wetlands, and flood plains.

Environmentally sensitive areas, such as coastal and other waterfront areas, often have major restrictions, making building there very costly.  Areas defined as wetlands are also highly regulated and what is considered a wetland is not always obvious. Land that is classified as wetlands may not appear wet or marshy or even contain marsh plants such as cattails. Even if building is allowed in a special district, you may need to use special, costly septic systems, erosion control measures, and other environmental safeguards.

Historic districts may restrict the size, shape, design, color, and exterior finish of your house.  Don’t make any assumptions. Check out any assumptions or representations  by the seller with the local building and planning  jurisdiction.

Other restrictions that you might not think of may include:

  • Views: Some areas require that buildings not be visible on ridgelines, near a lake shore, or other scenic areas.
  • Trees: Some areas restrict the size, number, or area of trees that can be cut – even though you own the land.
  • Restrictions due to archeological sites, threatened species, aquifer protection, and on and on

CLUSTER ZONING

A number of semi-rural and rural areas now encourage cluster zoning, where a developer is allowed to make house lots smaller and closer together in exchange for designating a percentage of the parcel as conservation land. This helps maintain larger tracts of open land, which is better for preserving natural ecosystems and wildlife, as well as for outdoor recreation. It’s a tradeoff – you’re closer to your neighbors, but border on a large parcel of conserved land.

ZONING VARIANCES

If your plan does not to strictly comply with the zoning rules, but is not considered detrimental to the public or to neighboring properties, you may be granted a variance, allowing you to deviate from the zoning rules. The most common type of variance is a “hardship” or “use”  variance. These are governed by town law and, in general,  are granted when the shape or size of the lot interferes with the owner’s “reasonable use” of the land, and the problem has not been created by the landowner. For example, the town may let you build on a lot that is too skinny to comply with the setback rules. Variances are granted all the time, but may also be denied, based on how local authorities interpret such concepts and “hardship” and “reasonable use.”

Abutters are generally notified of variance requests and approvals and have the opportunity to raise objections with the zoning board. Buying a lot with the hopes of winning a variance is a risky proposition. Best to talk to town authorities and a local real-estate lawyer with experienced in this area. Although it is unlikely,  your variance may still be challenged by abutters after being granted by the town  (see Lessons Learned).  The safest approach is to make the lot’s purchase contingent on approval of the zoning and building department for your intended project. If your right to proceed with your building plans cannot be established, it’s probably best to walk away.

NONCONFORMING LOTS AND USES

A nonconforming lot is one that does not comply with current zoning rules, but may have been buildable under the zoning laws at the time the lot was first deeded or subdivided. The rules governing nonconforming lots can be complex and may  turn on who owned the land at specific dates. The town’s zoning office can be very helpful in untangling these issues, but make sure you get their opinion in writing, before committing to purchasing the lot. A lawyer’s opinion may be a good idea if there is any uncertainty.

A nonconforming use applies to an existing building that is not in compliance with the current zoning rules. This is primarily an issue for people who want to add living space – or tear down and rebuild from scratch. The rules vary from town to town, but most follow the principle that you cannot make a non-conforming building more non-conforming when you remodel or rebuild. In some cities and towns, you can apply for a “special permit” to add to a non-conforming use. In general, a special permit is easier to obtain than a variance.

The small beach shack at left was “remodeled” into the several thousand sq. ft. McMansion pictured despite community opposition and many alleged zoning violations.
Photo by WNSHA. Click to enlarge.

For example, if a building violates the current setback requirement, you cannot enlarge a porch or deck, or build an addition, that is even closer to the property line – making it more non-conforming. Even if the building’s footprint remains the same, adding space upward might be rejected as a “volumetric” change. If the building is torn down or destroyed by fire, you may or may not be able to rebuild on the same non-conforming footprint, depending on how the local law is written and interpreted. This has become a contentious issue in many vacation communities, where someone buys a non-conforming shack by the sea and then tries to “remodel” it into a McMansion several times larger than the original structure (see photo). Even if you manage to win the town’s approval, you may still end up with some very hostile neighbors.

PLANNING TO SUBDIVIDE?

If you’re hoping to subdivide the lot you are purchasing in order to sell off a parcel, you’ll need to look into the town’s subdivision regulations. These may be part of a municipality’s zoning ordinance or may be a separate set of regulations, creating restrictions above and beyond the zoning rules. Subdivision regulations can be complex and may need a lawyer’s review.

BEYOND ZONING: SHOULD YOU BUILD HERE?

Finally, just because the governing jurisdiction allows a building to go up, it doesn’t mean it’s a good idea. Steep hillsides may be vulnerable to erosion or landslides depending on the soil types, drainage patterns, and other factors. Low-lying areas near a pond, lake, stream, or saltwater may be flood-prone, whether or not the state calls it a wetlands. What looks like a piddling little stream in the summer or fall can turn into a raging torrent next spring.  Consulting with a geotechnical and/or environmental engineer might be wise in this case.

ON THE WATERFRONT

Waterfront properties entail higher costs and greater risks than most. Special zoning rules, stringent on-site sewage regulations, and other restrictions significantly drive up building costs. In addition you are taking on the risk of greater storms, rising sea levels, and increased coastal erosion. Environmental scientists are predicting that the 100-year flood will soon be the 80-year flood, then the 60-year flood, and so on.

If you are undaunted and determined to live on the water, there are steps you can take to safeguard a home – for example building on reinforced concrete piers with break-away walls on the first floor, designed to wash away in a flood but preserve the rest of the house (as is commonly done in flood-prone areas such as the Florida Keys). Also plan to budget for exorbitantly expensive flood insurance, if available, in such areas.

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Comments

  1. Randy Ray Young says:

    Not Enough Frontage To Subdivide

    PLEASE HELP. State of Maine. Parents passed away and they were living with my brother. I have 5 other siblings. We want to sell the land to sisters boyfriend and let brother keep house and garage. Boyfriend will build up in the back on the 36 acres. The town of Litchfield now says we can’t break up the property as there is a 200 foot frontage code. The buyer (sisters boyfriend) can only buy all of the property and would have to tear down house and garage. Brother gets kicked out on the streets. There must be a way around this. It IS our land isn’t it?

    • buildingadvisor says:

      Going against a town on a zoning issue is tough. I just spent 18 months getting a permit to add a 10×10-foot bathroom to a house we own due to a zoning issue.

      Subdivision regulations are usually separate from zoning ordinances, but are generally handled by the same town office, typically called the zoning board or zoning commission. These rules are enacted at the local level, consistent with state law. Each town makes its own rules.

      People sometimes ignore zoning regulations and build what they want, but they risk having the town respond legally at a future date – in some cases, forcing the person to modify or remove the construction that violated the regulations. It can get pretty messy.

      A better bet is to apply for a variance, which lets you bend the rules a bit. There is something called a “hardship” variance which could apply in your case. It is possible that the town would allow you to, for example, build a private road that would provide the necessary frontage for the second lot.

      Some towns also have zoning provisions that allow additional dwellings to be built on a lot under special circumstances. For example, if the living space is for an elderly relative, handicapped person, or for low-income housing, some towns will allow an “affordable and accessible” dwelling to be built. This does not require a variance, but would still require a special application.

      Applying for a variance can be complicated, the process slow, and there is no guarantee of success. Many people get help from a lawyer in filing an application for a variance. Even if you want to go it alone, a brief conversation with a good real estate lawyer in town might be worthwhile. The lawyer could tell you your chance of success and outline the steps required to properly file.

      If you haven’t already, you should also schedule a meeting with the town’s zoning officer, explain what you are trying to accomplish, and ask about possible ways to meet your family’s needs. If you are lucky, you will someone in the zoning department who is sympathetic to your situation and who can guide you through the process.

  2. Robert Nearhoof says:

    Building in Critical Areas

    I would like to subdivide my current property to build on the section that I subdivide. I live in the critical area and I have used roughly 3,900 square feet of impervious surface on a lot that has 33,750 square feet. I would like to know what percentage of property can be used in the critical area and if I subdivide my property, roughly 100 feet by 125 feet, can I build on that portion . Thanks, R.N.

    • buildingadvisor says:

      Your questions are all governed by zoning rules, which are enacted and enforced at the local level, sometimes with overriding state laws for issues such as development of “critical areas”. Critical areas are generally designated by the state as environmentally sensitive and may include such things as wetlands, tidal areas, buffers around lakes and streams, wildlife habitat, and areas subject to floods, landslides, and other risks.

      The first question is whether you can subdivide at all. Many small lots of under an acre cannot be subdivided in many jurisdictions. Older lots may be governed by less restrictive regulations under “grandfathering” provisions.

      If you are allowed to subdivide, then the minimum lot size, minimum frontage, allowable lot coverage (of buildings and impervious surfaces), house size, perc testing, number of bedrooms, setbacks, and other requirements will all be governed by local zoning regulations, which can vary a great deal from one town to the next.

      If the wish to develop a portion of the land that is considered a critical area, development rules are likely to be more restrictive and may limit other activities such as clearing and tree cutting.

      The place to start is with your local department of building and zoning. Schedule a meeting with your local zoning official and describe what you hoping to do. They can tell you what is allowable and zoning rules will apply. In some cases, a special permit or variance is required, which can be expensive or impossible to obtain, depending on circumstances.

      You can also do a lot of preliminary research online nowadays. Zoning maps, zoning laws, and state laws are generally posted online, but it is not always easy to decipher the technical terms sometimes used. A surveyor could help if you wish to bring in an expert at some point.

  3. Caroline says:

    Can I Add Exterior Stairs to 2nd Floor?

    I own a 2-story single-family dwelling built in the 1920s. It was inspected by the city in 2012 and all that was present then was approved and signed off on. That includes two bedrooms with closets and a full bath and “wet bar” (counter with a sink) upstairs. My question is about an exterior stair case that used to be there. It had a landing at the top, where one could enter the second story through an ordinary door. Inside the house, there is another staircase that goes from a first floor hallway to the second story. Given the existing interior stairway, can this house, as a single-family dwelling, have an exterior staircase that goes to the second floor? The house is in a city in Los Angeles County. What code governs topics like this one?

    • buildingadvisor says:

      Typically, whether or not this type of stair would be allowed would be governed by zoning. The actual construction details of the stairs, including tread and riser size, handrails, total height, etc., would be governed by the municipal building code. In general, zoning will not permit changes to a single-family dwelling that would makes it function as a multi-family dwelling with separate living spaces. This might include adding a separate entrance, second kitchen, etc.

      Both building codes and zoning regulations are adopted, interpreted, and enforced at the local level – town, city, or county, although in some cases state regulations preempt local rules.

      In situations where public safety is not an issue, existing construction is often grandfathered and allowed to stay. However, once the stairs were removed, you would probably lose any rights that were grandfathered. This can get complicated, since some towns allow lots to be developed under the zoning regulations in place when the lot was originally subdivided and deeded. The specifics depend on your local regulations and the way they are interpreted by the local building and zoning departments.

      When it doubt, it’s always best to schedule a face-to-face meeting with the local dept. of building inspection with drawings, photos, or other documentation of what you are trying to do and ask whether it will be allowed or not, or whether it might be allowed with a special permit or variance. These folks appreciate being consulted beforehand and are more likely to be cooperative if they are brought in to the process early. If a special permit or variance is required ask how to apply, and what is the likelihood it will be granted.

      In a large urban area like LA county, applying for a special permit or variance can be very complicated and expensive and may require the help of a lawyer to be successful. A lawyer can also tell you whether it is worth the time and money to pursue

  4. Setback for Driveway?

    What is the minimum distance required from my property line that the neighbors could put a driveway. The new driveway has a concrete pipe for a drainage ditch as you come off the state road? There has never been a water problem in the shallow ditch beside the shoulder of road, so I’m not sure why they are redoing the driveway.

    • buildingadvisor says:

      Side-yard setbacks for driveways, houses, and other structures are determined by local zoning regulations, which vary greatly from town to town. So you really need to check with your local building and planning department. If you are in a subdivision, it may also have rules more restrictive than town zoning.

      The rules for driveway placement can be pretty complicated. Many towns allow driveways to be on the lot line, while some require setbacks of 2 ft. to 10 ft. or more. Most towns with zoning regulate the minimum and maximum width of the driveway and how far parking spaces must be from front and side lot lines. It’s always best to check with the town before proceeding with work.

      If your neighbors are replacing an existing driveway in the same location, most likely the location is grandfathered and not subject to any new zoning laws.

      Not sure about the pipe, but it sounds like it is there to allow water to flow freely below the road surface through a culvert – a good idea.

  5. Leonie K. says:

    Discovered Setback Violation During Sale

    We are currently in the process of selling our home in South Florida. During the inspection period it was discovered that a corner of the building is encroaching on the setback (by about 1 foot). The lot is triangle shaped. We are now trying to figure out how we can remedy the situation so we can convey marketable title to the property. Is a variance application the only solution? Thank you and best regards

    • buildingadvisor says:

      Setback regulations and their enforcement varies from one municipality to another, so it is difficult to say what is your best remedy.

      It is possible that the plan was originally approved via a variance or “special permit”, which should be uncovered in a title search. It is also possible that the building complied with the existing setback regulations at the time of construction, in which case the building would be grandfathered. Permits and other documentation should be in the public record, but it might take a real estate lawyer to uncover them.

      More likely, however, the encroachment was an oversight by the builder. In that case, a setback variance may be required. There is a good chance that a variance (or a “special permit” which is easier to obtain) would be granted in your instance. However, the process of applying for a variance can be onerous and time-consuming.

      You should start by speaking with your local planning and zoning department about the process, timing, and likelihood of getting your nonconforming house plan approved retroactively. I would also speak with a local real estate lawyer, to get his perspective, along with his cost estimate for proceeding. While it is possible to apply for a variance on your own, an experienced lawyer can certainly speed up the process and improve your chances of success.

      If you can find a cash buyer willing to purchase the property with this title defect (at a discount) that might also be an option. A mortgage lender, however, might balk at loaning money until this issue is resolved.

      You can find a good overview of setback regulations at the legal self-help website Nolo.com.

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