Do You Know These Essential Zoning Terms?

The concept of zoning is fairly simple. A governing body enacts laws to create districts within its jurisdiction and regulations to govern the uses and structures inside those districts. The creation of these districts and regulations are designed to serve the jurisdiction’s general welfare by promoting growth and development in accordance with the body’s planning policies. To accomplish this, the body regulates the types of uses permitted, the design or layout of developments, and the design of structures within each district.

While the concept is straightforward, the terms used in the zoning world are numerous. Because being able to verify that an existing or proposed use of property is permitted (or if it isn’t, how it may become permitted) is at the heart of any commercial real estate transaction, a real estate professional must be well versed in the language of zoning.

Accordingly, this article sets out (alphabetically) many of the most common zoning terms, what they mean, and how they’re used.

A

Accessory Use. Accessory uses are land uses within a property that are, in addition to the parcel’s principal use, customary, appropriate, subordinate, incidental to, and serve the principal use. The governing body often includes in its zoning ordinance specific accessory uses it believes meet these criteria, but as an example, typical residential accessory uses include garages, decks, swimming pools and storage sheds.

Aesthetic Regulation. Aesthetic zoning regulations are used to maintain aesthetic features within a district by permitting only uses, designs and structures that conform to or complement the area’s existing uses and structures. Examples of aesthetic regulations are limitations on parking, setbacks, the colors and architecture of structures, and types of landscaping, roofs and building materials.

Agricultural Districts. These districts are limited to agricultural uses such as raising of crops, livestock grazing, and the raising of poultry. The permitted uses and regulation of such districts vary depending on the size of the parcel, e.g., an A2 district could be for parcels of at least 2 acres, and an A3 district for parcels of at least 3 acres. Typical conditional uses in these districts include the retail sale of agricultural-related products and storage of agricultural-related vehicles.

Amortization. When a building or use becomes non-conforming due to a change in zoning regulations, the property will be given a period of time to comply with the new regulations. This period of time is called the amortization period. If a property is not compliant within the amortization period, the use will be prohibited.

Ancillary Uses. Such uses are permitted land uses that are secondary and complementary to the principal use, but not accessory. An example of an ancillary use is an office supply store in an office park that only serves the principal office uses within the district.

B

Bulk Regulations. These regulations control the size and layout of structures, including regulations as to open space, lot lines, maximum building height, and maximum floor area ratio.

Buffer Zones. When two adjacent districts have incompatible permitted uses, in order to reduce the conflict between the uses, the governing body may require a buffer zone. Typically such zones will include park areas, grass, trees or berming. Such zones are commonly used when the development of a multi-family complex is proposed adjacent to a single-family district.

C

Commercial Use. These uses, permitted only in commercial districts, typically include wholesale, retail, or service business uses operating for profit, including office uses.

Comprehensive/General Plan. A long-term planning instrument, these plans set forth policies for the future development of the jurisdiction in a manner that will satisfy the jurisdiction’s goals, e.g., maintain orderly growth and protect the general welfare. Comprehensive plans often include local area plans, land use-related resolutions by the governing body, maps, and policy statements.

Conditional Use. These uses are permitted on a permanent basis within a district so long as the governing body’s conditions are met. These uses require conditions because without them, they could negatively impact the parcel or bordering properties. Permits for conditional uses are given at the discretion of the governing body.

Contract Zoning. Contract zoning occurs when a property owner and the governing body enter into an agreement that the property will be rezoned and the owner will accept the body’s use and design restrictions.

Cumulative Zoning. Under this zoning scheme, property zoned for specific uses can be used for that use and for less intensive uses. For example, an area zoned for multi-family uses would also permit a single-family use within the parcel.

D

Density. Density is the amount of development allowed per acre, and typically calculated by the number of dwelling units per acre (for residential) or floor area ratio (for commercial).

Discriminatory/Exclusionary Zoning. This type of zoning refers to a community’s use of zoning regulations to exclude certain groups of people. Though it is unlawful to expressly exclude people based on race or ethnicity, regulations relating to development densities can still have exclusionary effects. For example, communities will limit the number of dwellings permitted, reducing the housing supply, and thus lowering opportunities for new buyers. Further, reducing the housing supply increases market prices, having the effect of excluding lower-income families. Similarly, zoning regulations that limit or prohibit low-income multi-family complexes have the direct effect of excluding lower-income households from residing in the community.

Down-Zoning. Down-zoning occurs when a parcel is rezoned to a classification permitting only less intensive uses. Communities will utilize down-zoning to limit less-desired intensive uses. For example, a community may rezone a parcel from a multi-family designation to a single-family district.

E

Exactions. New development will often increase the use of, and the need for, improved or new public infrastructure and facilities, e.g., water and sewer lines, road improvements, and parks. Exactions are how a community forces developers to contribute to the cost of such infrastructure. They can take the form of requiring a developer to pay for a portion of the infrastructure improvements necessitated by the development, impact fees, or the donation of a portion of the developer’s land.

F

Floating Zones. These are districts that are permitted under the zoning ordinance, but not placed on the zoning map. They are typically used for unique uses (e.g., major entertainment centers, intensive industrial uses) that are anticipated in the future, but no specific location has been identified within the community. When an application is made for such a use on a specific parcel, a floating zone can be established and located on the zoning map, provided the regulations set forth in the zoning ordinance are met.

G

Grandfathering Clauses. The term “grandfathering” is a misnomer for a legal prior non-conforming use. A “grandfathering” situation occurs when an existing use was in compliance with zoning regulations at the time it began, but changes to the regulations have caused the use to become non-conforming. If the owner sells the property, the buyer will have the right to continue the non-conforming use, causing people to label the use as “grandfathered.” However, because this situation is simply the transfer of a lawful non-conforming use, the laws related to such uses create certain limitations, e.g., the use may not continue indefinitely as it will be subject to an amortization period, and the use cannot be expanded.

I

Industrial Uses. These uses are non-residential, non-agricultural, and non-commercial uses such as mining, milling, and manufacturing. Zoning ordinances generally include many classes of industrial uses, and the regulation of each varies depending on the intensity and impact of the use. Common examples of light industrial uses are warehouses, manufacturing and distribution where they operate without negative impacts on the surrounding uses. Heavy industrial uses have the potential to create public nuisance conditions (e.g., noise, environmental impacts), and are thus more stringently located and regulated. Examples of heavy industrial uses include quarries, landfills, and asphalt or concrete mixing plants.

M

Master Plan. Master plans are the overall plan for a community’s development. They must be consistent with the goals and policies described in the comprehensive/general plan and other local plans, e.g., an area plan. Generally master plans include the location of proposed land uses, description of the types of uses, intensities of uses, and building and structure limitations, though they may also include descriptions of desired parking, open space, and layout.

Mixed-Use Designation. This designation allows for the integration of multiple types of uses within a single district. For example, a development that includes multi-family residential, retail and office uses.

Moratorium. When a governing body is considering the amendment of its zoning ordinance or planning documents, it may decide to enact a temporary ban, a “moratorium,” on zoning applications for the uses being considered. Though it is generally accepted that a body has the right to use moratoriums in order for to have time to make sound planning decisions, because landowners seeking to develop their properties will be delayed (or, prevented from developing in the event the ultimate change prohibits the use they intended), the moratorium must be reasonable. In determining reasonableness, courts have considered whether the moratorium advances a legitimate governmental interest, is being made in good faith, and doesn’t deprive the landowner of all reasonable use for too long.

N

New Urbanism. New urbanism is a planning and design concept based primarily on two objectives: neighborhoods should have a sense of community and be environmentally friendly. To affect these goals, new urbanists lobby and work with communities to create or amend planning and zoning laws to allow neighborhoods with multiple uses, require communities to be designed for pedestrian and car traffic, and require environmentally conscious building designs and construction.

NIMBY. An acronym for Not In My Backyard, NIMBY refers to groups that oppose a new land use near their residential property. NIMBY efforts are directed at every type of use they deem incompatible with their residential use, including commercial retail or office uses, industrial or more intensive housing uses. The arguments against such uses near residential neighborhoods include that they will increase car and truck traffic, noise and crime, and lower property values. The power of such opposition is largely political, with a group appealing to their elected officials to deny approval of the opposed project.

Non-Conforming Use. A non-conforming use is any use, structure or building that doesn’t comply with the applicable zoning regulations. Where the use was originally in compliance, but  a regulations change made it non-compliant, the use became a lawful prior non-conforming use (LPNCU). As the name suggests, LPNCUs are lawful, and may continue, but they face certain restrictions. Common restrictions are (1) the use must be made compliant within a certain period of time (an amortization period), (2) the use cannot be expanded, (3) if the LPNCU is changed, it may not return to the prior use, and (4) where the property is damaged beyond a certain point, it may not be repaired.

O

Open Space. Open spaces are utilized in zoning ordinances to allow for public or private uses for enjoyment, such as park areas or simply green space. Open space requirements are often calculated as a certain percentage of a parcel’s size.

P

Planned Unit Development (PUD). A PUD is a mixed-use development (often residential, retail and office) with a cohesive design plan. To encourage the feasibility of such developments, zoning regulations, otherwise required of the individual uses, may be waived or modified to allow for flexibility in the development’s design.

Primary Use. A primary use is the principal or dominant use of the land, such as residing in a home, running business or manufacturing a product.

R

Regulatory Taking. A taking in the real property arena refers to the government exercising its power of eminent domain to acquire ownership of private property for a public use or benefit. A taking is lawful, but the government must pay for the land acquired. A regulatory taking occurs where a governing body enacts regulations that effectively deprive a landowner of all economically reasonable use or value of their property. While the government doesn’t actually take title to the property, because the regulations have made the property essentially worthless, it is viewed as a taking, and thus requires compensation to the landowner.

Residential Districts. These districts permit residential uses, and typically vary depending on lot size and the number of families that the dwellings in the district are meant to house (e.g., single-family, two-family, etc.). Residential districts for multi-family apartments typically consider the number of units within a defined space (e.g., up to 50 units per acre).

Rezoning. Rezoning is simply a change in the zoning district applied to a parcel of land, and thus a change to the permitted uses and accompanying regulations within that parcel.

S

Setbacks. Setbacks are distances between structures and property lines, and vary depending on the zoning district.

Smart Growth. Similar to New Urbanism, smart growth is an urban development and planning concept stressing mixed-used neighborhoods, walkability and environmentally conscious development and design.

Spot Zoning. Spot zoning is unlawful, and occurs when a single parcel is zoned differently than surrounding uses for the sole benefit of the landowner. While property may lawfully be zoned differently than surrounding uses, in those cases the uses are typically permitted because they serve a public benefit or a useful purpose to the surrounding properties. For example, sound planning policies would permit a school to be located in the center of a residential neighborhood. Locating an adult entertainment store in the same neighborhood would not.

Standard State Zoning Enabling Act (SZEA). Federally developed in 1921, SZEA was a standard act on which states could model their own zoning enabling acts. SZEA provided that legislative bodies could divide their jurisdictions into different districts, made a statement of purpose for zoning regulations, and created procedures for establishing such regulations.

T

Temporary Use. A temporary use is the use of property permitted for a specified period of time, provided that the use complies with required conditions of use.

V

Variance. A variance is a discretionary, limited waiver or modification of a zoning requirement. It is applied in situations where the strict application of the requirement would result in a practical difficulty or unnecessary hardship for the landowner. Typically, the difficulty or hardship must be due to an unusual physical characteristic of the parcel.

Vested Rights. The vested rights doctrine permits a landowner to build pursuant to a prior zoning regulation when there has been a substantial change of position or expenditures by an innocent party in reliance upon the issuance, or probable issuance, of a building permit. However, where no permit had been issued, and the owner has only an anticipation that it could develop their land under the existing zoning, then a change in zoning prohibiting their anticipated development doesn’t create a vested right. Put simply, there is no guarantee that zoning classifications or regulations will stay the same.

Z

Zoning Ordinance. Created in compliance with a governing body’s comprehensive plan, zoning ordinances are comprised of maps showing the zoning districts and text setting forth the regulation of uses and structures within each type of district.

And now you’re ready to tackle that next zoning discussion. As always though, this article is only for informational purposes, and not to give legal advice. So, if you have any particular issues, you should consult a licensed attorney. And if we’ve missed a term, let us know in the comments below!