In This Article
What Zoning Regulates
Permitted Uses And Special Exceptions
Special Zoning Districts
Nonconforming Lots And Uses
Planning to Subdivide?
Beyond Zoning: Should You Build Here?
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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.
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 minimum distance from the property lines (setbacks), building height, and what percentage of a lot may be built on or paved (lot coverage). Setback are different for front, side, and rear yards, and for different types of structures. These can range from as little as 2 feet to 40 feet or more, so these can leave you with little choice as to where to place your house on the site.
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 septic systems.
The purpose of zoning is to control density, noise, and congestion in a neighborhood. No one wants a high-rise or pig farm built next door to their new home. Safety is also a concern. For example, setbacks keep houses separated to prevent fire jumping from one house to the next.
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.
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 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
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.
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.” In some cases, the town will let you proceed with a “special permit,” which is simpler to obtain than an variance.
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 experience in the local 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.
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.
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.
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.
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.
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.