Zoning/Land Use
Zoning is the process of dividing land in a municipality into zones (e.g. residential, industrial) in which certain land uses are permitted or prohibited. The type of zone determines whether planning permission for a given development is granted. Zoning may specify a variety of outright and conditional uses of land. It may also indicate the size and dimensions of land area as well as the form and scale of buildings.
There are a great variety of zoning types, some of which focus on regulating building form and the relation of buildings to the street with mixed-uses, known as form-based, others with separating land uses, known as use-based or a combination thereof.
The primary purpose of zoning is to segregate uses that are thought to be incompatible. In practice, zoning also is used to prevent new development from interfering with existing uses and/or to preserve the “character” of a community. Zoning is established by local governments.
Zoning may include regulation of the kinds of activities which will be acceptable on particular lots (such as open space, residential, agricultural, commercial or industrial), the densities at which those activities can be performed (from low-density housing such as single family homes to high-density such as high-rise apartment buildings), the height of buildings, the amount of space structures may occupy, the location of a building on the lot (setbacks), the proportions of the types of space on a lot, such as how much landscaped space, impervious surface, traffic lanes, and whether or not parking is provided.
Most zoning systems have a procedure for granting variances (exceptions to the zoning rules), usually because of some perceived hardship caused by the particular nature of the property in question.
Variances in General: A variance is a deviation from the set of rules a municipality applies to land use and land development, typically a zoning ordinance, building code or municipal code. The manner in which variances are employed can differ greatly depending on the municipality.
Use Variance: A use variance is a variance that authorizes a land use not normally permitted by the zoning ordinance. Such a variance has much in common with a special-use permit (sometimes known as a conditional use permit). Some municipalities do not offer this process, opting to handle such situations under special use permits instead. Grant of a use variance also can be similar, in effect, to a zone change. This may, in certain cases, be considered spot zoning, which is prohibited in many jurisdictions.
Area Variance: An area variance is the most common type. It can be requested by a builder or landowner when an odd configuration of the land, or sometimes the physical improvements (structures) on the land, requires a relaxation of the applicable regulations to avoid denying the landowner the same rights and use of the property enjoyed by owners of neighboring properties. A textbook example would be a house built on an oddly-shaped lot. If the odd shape of the lot makes it onerous for the landowner or builder to comply with the standard building setbacks specified in the code, a variance could be requested to allow a reduced setback. Another would be a house built on a sloping lot. If the slope of the lot makes it onerous to comply with the height limit—typically due to the way the municipality’s code requires height to be measured—then a variance could be requested for a structure of increased height because of the special conditions on the lot.
Generally: In either case, the variance request is justified only if special conditions exist on the lot that create a hardship making it too difficult to comply with the code’s normal requirements. Likewise, a request for a variance on a normal lot with no special conditions could judiciously be denied.
Zoning And Land Use Representation And Litigation: Representation for planning and development, including appearances before planning boards, Zoning Board of Appeals, Two Family Permit Boards, Accessory Apartment Boards, Sanitation Commissions, etc.
Article 78 Proceedings
An Article 78 proceeding is used to challenge a decision made by a municipal official or board that is adverse to your interests. The process seeks judicial intervention and review of a governmental agency’s/officials decision or determination.
If you have been denied a use variance, an area variance, a two family or accessory apartment permit, a special use permit or any other approval by a zoning board of appeals, planning board, or other municipal board or received an adverse determination from a municipal officer or board regarding residential or commercial land uses, a challenge must be taken expeditiously or you will lose your right to challenge the decision. An Article 78 proceeding must be brought as little as 30 days after the decision being challenged. There are some situations where you must bring said challenge within four months after the decision being challenged. In order to protect your rights, you must contract an attorney immediately upon receiving any adverse decision you wish to challenge.
