Understanding Land Use Zoning, and Contrasting It with Codes, Regulations, and CC&Rs

You'll love land use zoning in the U.S. if you like complexity. Most people do. Why else do societies and groups make everything into such a complicated and interwoven set of rules and norms? This page introduces a section that allows you to contrast this aging land use control mechanism with other codes, CC&Rs that regulate condos and many other developments, and subdivision regulation.

Actually we'll make it as simple as possible. If you came because you're upset about a proposed zoning change in your neighborhood, here's where to learn to oppose a rezoning. But come on back here so you learn enough to be a good advocate!

1. A list of permitted uses.

This means permitted land uses and building uses. Uses include single-family residences, day care centers, group homes, offices, landfills, factories, places of worship, and so forth. Each of these might have many qualifiers attached to it. For example, the term might be "offices of less than 5,000 square feet." Or "single-family detached homes." Or "factories meeting the performance standards set forth in Section 41 of this ordinance."

2. Regulations.

This commonly includes the minimum square footage of the lot on which the land use sits, any required feet of front yard setbacks from the street, minimum rear and side yard setbacks of the building from the property line, maximum height of the building, number of parking spaces required, percentage of the lot that may be occupied by the building, and whether any signs are permitted. From there on, the variations are endless.

Appropriately enough, each land use zoning district must be shown on a map. So a big percentage a local government's activity concerning zoning relates to changing the map. Usually the property owner, but sometimes the government, may initiate what is known as a rezoning (re-zoning) process. The application also may be called a petition in some jurisdictions.

The process of changing the zoning map or regulations involves at least one public hearing, or usually two, so you have two opportunities.

Before we move on, we should explain that the zoning map changes are first heard and then recommended up or down by a body usually called the planning and zoning commission. Sometimes the "planning" part is dropped. Usually the commission's recommendation passes on to the city council or whatever your town's governing body is called.

Often the governing body is more political, so they may or may not follow the commission's recommendation, which should be somewhat more tied to principles rather than to politics. Losers at the governing body level can appeal only to courts. If the government has followed good procedure and fundamental fairness in avoiding a spot land use zoning, legal theory supports the court in giving the government the benefit of the doubt.

Read more detail about the principles behind these municipal regulations here.

Land Use Zoning Rationale

So while the typical zoning ordinance covers a considerably larger number of topics than merely land use, land use zoning is a term that at least establishes that we're not talking about what elementary school your child must attend if you buy a particular house.

So back to work. The principles behind the land use zoning ordinance are designed to make the built environment present a pleasing similarity:

• A key notion is to group similar land uses that are compatible with one another. In the end, compatibility is based on community standards and ideas. However, lists are often copied from place to place, and a considerable mystique has arisen surrounding this conventional wisdom about compatibility.

• Another pivotal idea is to make a gradual transition from less intense uses, such as detached single-family homes on large lots, to more intense uses, such as large regional shopping centers. Often you will hear of "buffering" one land use from another.

• Regulations are designed to present minimum and maximum acceptable limits for yards, lot coverage, height, and accessory uses (such as your detached garage or your storage shed).

Relationship to Urban Design

When property owners rezone, typically they are asking for a classification (another term for what we have been calling a district) that would allow them to do something they personally would like to do or that they think or know will fetch them more money if they are about to put the property on the market.

Some Current Issues

When governments institute the map change, however, it might be a down zoning (more often written with the words together). That means that the new classification would allow less density or intensity of use than the old one. For example, commercial property could be rezoned to residential if the government believes it will not be used for commercial purposes in the foreseeable future.

In my opinion, many more governments should consider downzoning when they can do so based on solid market research. It's a tricky business, though, because courts are more and more inclined to rule that the government has overstepped its bounds and that the diminution in property value somehow should be paid for by the government. Even though the government created the extra value in the first place through building infrastructure

2. The Mixed Use Concept

As we've hinted, the idea of completely segregating land uses is now falling away, and many experts come down solidly on the side of mixed used development. Mixed use simply means that land uses, usually referring to commercial and residential, are no longer completely separate. Mixed use now is popular simply because it makes transportation sense. With technology advances, working at home is more than a silly dream, and the world didn't fall apart when more and more people started doing office work at their place of residence.

3. Providing Incentives for Good Behavior

So-called incentive zoning might take the form of allowing an increased overall density of housing units on a developing parcel if a certain percentage is left in contiguous open space. This also might be called cluster zoning, or it might be a density bonus. The phrase density bonus often is applied to multi-family housing, and sometimes there is an intensity bonus for office buildings that incorporate ground-level retail shops or some other amenity desirable to the community.

4. Challenging Land Uses

New uses always challenge land use zoning and present an array of new problems every year as technology or business practices evolve. See our accompanying pages if you need to know about some of these, including bed and breakfast, condo conversion, short term rental, wind turbine, home business, or tower zoning.

A few uses once were considered inherently compatible with residential land use, including schools. Since most children now arrive by bus or automobile, however, school siting and land use zoning for private schools has become more controversial. Court intervention has led to wide permission for group home or church permitted uses in residential neighborhoods.

5. Flexible Categories

Concepts to introduce flexibility into the ordinance include planned development, in which essentially anything meeting stated criteria and solidified into a binding site plan, can be approved. Be deliberative in defining your standards, though, or you might be subject to a charge of contract zoning, a type of negotiation in which perceived favoritism is shown to a particular developer.

Another noteworthy land use zoning trend is for cluster housing, in which a large portion of a parcel can be preserved for open space and/or recreational use, while allowing some development, usually residential. While stemming from our housing section, this page has significant zoning content as well.

6. Variances

Just when you thought the rules were air-tight, now you learn that the world is full of weird triangular shaped lots and lots accidentally created when the federal government seized part of grandpa's land for a gun factory. That's when you need a variance. Sometimes it is called an exception or an exemption.

The theory behind the land use zoning variance is that it should be granted only in the case of a unique hardship to the property owner if the ordinance provisions were to be strictly applied. The hardship is not supposed to be that you can't get top dollar. However, as time goes on, it becomes harder and harder to adhere to that theory of the variance. Some days I'm afraid everyone who asks for one will get it in some towns.

Variance applications typically are heard by a separate body from the one that typically deals with the land use zoning ordinance. This board is variously called the board of zoning adjustment, zoning board of appeals, or some similar combination of words. Typically members are appointed by the governing body, but their rulings cannot be appealed except to a court of law.

7. Rural or agricultural zoning. This section includes a lengthy but thought-provoking page about planning or land use zoning in rural areas.

Alternatives to Land Use Zoning

Houston is famous for its system, in which covenants or deed restrictions, as described below, govern everything. Another approach emerging in the last 20 years include form-based codes, described on the urban design page. A second important relatively recent development is the practice of dividing a town or metro region into series of transects, or cross-sections of the community, which then are regulated through design guidelines.

Codes

Now, on to codes. Just to confuse you, sometimes the zoning ordinance is called a code. So don't be surprised when that happens. But here we're going to refer to other codes.

Usually a code provides very specific rules about building safety or maintenance, pertaining to new construction or existing buildings. There are several professional associations that write these codes, and typically your town or city simply adopts them by reference to the Such and Such Standard Building Code of 2009. Your town could write exceptions if you wish. See our discussion of why every town needs a building code, significantly placed in our section on Safety.

The typical codes in most cities of any size are the building, electrical, plumbing, mechanical, and property maintenance codes. Energy codes are emerging in forward-leaning communities.

Just like zoning, a code has the force of law. But unlike zoning, property owners can't petition their government to change the code just for their benefit.

Subdivision Regulation

Another type of law that often gets confused with zoning is the subdivision regulation. When you have a chunk of land and you want to make it into two or more parcels of land so you can sell some of it, that is called subdividing. You might be dividing your 400 acre farm into four 100-acre farms, and if your county had a subdivision regulation, you might have to apply to subdivide. So don't let the common meaning of subdivision make you think that subdivision regulations only pertain when you want to build tract houses.

The subdivision regulation goal is to make sure that each lot is reasonably uniform, that no awkwardly shaped lots are formed, and that each lot can be served by utilities and roads. It also establishes and publishes the surveying markers that will be used by professional surveyors to measure land and establish for sure where each lot to be sold lies.

CC&Rs, Covenants, and Deed Restrictions

Another type of land use rule is CC&Rs. This stands for Covenants, Conditions & Restrictions. This is real estate jargon of relatively recent vintage. When you buy into certain planned communities, you are agreeing to these CC&Rs, often full of legal-eze writing. They can be quite voluminous, not to mention pretentious. Besides regulating land use in a way that sometimes might overlap with a traditional zoning ordinance, they also typically regulate aesthetics.

CC&Rs probably evolved from the older restrictive covenants idea. Restrictive covenants may be simply called covenants, or they may also be called deed restrictions. Almost anyone can place a deed restriction on their own property, and it's done all the time.

Many of them amount to land use regulations. For instance, a covenant might say this property must be forever green space. This property can never be used as a cemetery. This property must always be used as a farmer's market. There can never be any public service of alcohol on this property.

Restrictive covenants against African-Americans were a commonly used method of enforcing residential segregation in past decades, but a few types of covenants, such as this one, have been ruled illegal.

The tough thing about a deed restriction is that if there are a large number of property owners, it is difficult to repeal. Indeed, it's hard enough to change in many states, even if all the heirs are in agreement.

So my bottom line with restrictive covenants is to think three times before you impose them on your successor property owners, and to find a really good lawyer if you and your siblings inherit a piece of property and want to overturn a covenant placed on it by your parents.

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