The Importance of Zoning in Creating and Protecting the Value of Real Estate
Zoning is the public regulation of land use. Local governments—villages, towns, cities, and counties—adopt zoning to control the types of uses and the bulk, density, and dimensions of those uses. The federal and state governments do not zone land, at least not as we know typical zoning, but what they say and do, as we shall see, can completely change the local zoning landscape. Through zoning, the government tells you what you can and cannot do with your own land. This directly affects the value and utility of your property.
Zoning regulations broadly categorize uses as residential, commercial, and industrial. Within these big three, there are many more detailed subcategories. Residential uses include single-family detached homes; duplexes or two-family homes; zero-lot-line homes, which are single-family homes with no side yards or only one side yard; multifamily homes, including townhouses and walk-up flats; mobile home parks; and apartment buildings.
There are as many possible categories as there are types of homes. The same goes for commercial uses, which range from small retail shops to warehouse stores that have floor plates of three acres or more. The variety of types and definitions is dizzying, even for the professionals. When writing regulations for local governments, it is best to concentrate on the definitions. Much of the law of zoning is simply in the definitions: how we choose and describe what is in and what is out.
To give you an idea of how definitions can rule the day, consider the movement to zone away fast-food chain restaurants. Some towns, in the belief that this is not a good use, have simply banned all formula restaurants, generally defined as restaurants with set architecture and a set menu that have more than a small number of outlets, say 10. You could have paid big money for a great site at a prime intersection for your national franchise fast-food restaurant and then have the zoning rug yanked out from underneath you with the adoption of a prohibition on formula restaurants. Watch out for those definitions!
In addition to the type of use, zoning regulates how intensively you can use your land. The regulation you probably are most familiar with is that of lot size. If you are in a one-acre residential zone, you need to have at least one acre to build one house. My guess is that you don't know how many square feet there are in an acre. Many of my land-use law students don't. It is 43,560 square feet. Now here's the curious part: No one else seems able to remember that odd number, so planners have come up with a little shortcut called the "zoning acre." That's right; many towns call an acre a nice, round 40,000 square feet so that no one has to remember the rest of it. I've had several cases where by designing the lots exactly to one "zoning" acre of 40,000 square feet, or one-half acre at 20,000 square feet, or whatever the lot size is, I have had enough land left over to make an additional lot. If you do the arithmetic, for every 12 lots at 40,000 square feet, you will get 1 extra lot free—that's found money, just like someone gave you land.
Other dimensional regulations include front-yard setbacks and side-yard setbacks—how far back from the lot line your building must be. Watch out for overhangs. Believe it or not, in most towns a bay window jutting out from the side of a house may be an illegal encroachment into the side yard if the foundation is right on the setback line. In a recent case, a homeowner had to remove a second-floor addition that projected into the side yard, even though it was built totally in the air without touching the ground.
What is a "structure," for purposes of determining what you can build where on your lot, can be found—you guessed it—in how a structure is defined. A gravel walkway is seldom a structure, but a walkway of poured concrete may be, and a slightly elevated wooden deck usually is. Sometimes you will find that the definitions point the way to how you can design your project to maximize the use of the land. A stone patio may be perfectly legal and serve your purposes just as well as a wooden deck in exactly the same spot would.
Dimensional limitations always include height and sometimes bulk. Height is expressed in feet above the ground or stories. For a house, the limitation is likely to be 35 feet or 3 1/2 stories. The fun begins when you try to figure out what is the ground and what is the top. If the ground is rolling or sloped, where do you take the measurement? It depends on (here we go again) the definitions.
Most regulations measure height from the ground to the top of the structure, of course, but where is the top? Sometimes it is the average height between the gable and a peak. More often than not, antennas, weathervanes, parapets (as compared with paralegals), cupolas, and chimneys are exempt. A friend added a lighthouse-like cupola to the top of his beach house, and a fight ensued over a flagpole at the peak. Was it exempt or not? The solution by this architect owner was to have a flagpole that slid down into the cupola. I guess he hoisted the pole when the zoning enforcement officer wasn't in the neighborhood.
This silliness abounds. When my ski house in Vermont was finished, the builder commented that by his measurement it was 38 feet high. One might dispute that statement, as it is on a steeply sloping lot with a walk-out at the front of the basement level and with the rear of the house buried in the hillside. Technically, by some measure, it might be in violation of the 35-foot limitation. (Don't turn me in for some bounty—I'll claim that the statute of limitations has expired.)
If you had that situation, what would you do? One lesson you will see repeatedly in this book is that with zoning there are many ways to get at most problems. With the too-tall house, I would ask a client in this pickle, "Well, as an experienced zoning lawyer, I see you have two choices: lower the roof or raise the ground." "Whaaat," the client would yelp. "You fool, I can't cut off the top of my house." So the answer is simple: You add three feet of fill around the house. Sounds crazy, but it works. Actually, as we shall see, there are many other ways of fixing a problem of non-compliance.
Sometimes the absolute size of a building is controlled. One way of limiting size is a regulation called a "square on the lot." This requires a minimum square or rectangle on a lot to make sure there is enough developable land on even the most oddly shaped lots. That square might be 100 feet by 100 feet, so it does little to control the maximum size. Such a square yields 10,000 square feet, a very large house.
To stop so-called McMansions, those really big houses on really small lots in older quaint neighborhoods, many towns have adopted maximum floor area restrictions and other controls. Pity the person who buys an expensive lot with a run-down house on it and plans to scrape off that house and build a starter palace, only to lose the right to do so with the adoption of an antimansion regulation. Watch out for changes that may reduce or wipe out the value of your property, especially when you haven't "vested" or legally locked in your right to develop by getting approvals or by starting construction. Vesting rules vary from state to state. In some states, for some types of development, it is enough that you have filed an application. If the regulations are changed after you submit your application, you can still build under the old regulations if your application is approved. Sometimes vesting does not occur until you have an approval; that is, right up to the time you get your approval, the loca(Continues…)
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