There are different levels of restrictions that can be
placed on how you can use real estate. These
fall in to four broad categories:
Zoning, Codes/Licensing, Covenants and Environmental Law. The hierarchy and interweave of these are
challenging even for us who normally navigate real estate. For the layperson, these regulations can be beyond frustrating.
To illustrate how each of these layers of regulation comes
in to play, we’ll consider the example of the placement of a dog kennel behind a homeowner’s
house.
Zoning
Zoning is
the most familiar requirement. Created
by the city or county, it groups property usage to minimize conflict and
nuisance issues, to control and promote growth, and to obtain the best use of
each plot of land. Sometimes zoning will
come in multiple layers over the same area.
For example, a home inside an historical overlay district is more
limited to changing the exterior, although basic zoning doesn’t address this.
In our dog kennel example, a residential home would be
barred from an area zoned for office buildings.
Even within residential zones, there are zones for different sizes of
land and minimum square footage requirements.
Attempting to place a dog kennel in a high-density residential zone
(such as townhomes) would be difficult:
Our homeowner will be looking for a community with large lots.
Codes/Licensing
The next
consideration is building code compliance and licensing - both provided by the
local government. Assuming that the
homeowner can meet the requirements to obtain a business license, his kennel
will need to comply with building requirements.
For example, a city may prohibit the use of chain link fencing for any
use on any piece of land.
Covenants
Once past
the local government level requirements, the homeowner has to consider what
land use restrictions were put in place by agreements between past
landowners. These agreements fall under
contract law, and are handled differently from government-imposed regulations. When a person purchases a piece of land, he automatically
enters into this contract. Homeowners
rarely research restrictions recorded at the courthouse. For land lying with a homeowners association,
it is not unusual to see a prohibition on businesses that increase vehicular
traffic. Various noise and nuisance
regulations are also the norm.
Attempting to establish a kennel in this situation would be a violation
of the terms of the land contract, with either by the Association or a next
door neighbor resorting to litigation.
Zoning regulations cannot eliminate land covenants, nor can
a municipal agent impose land use contract terms on a piece of property. However, if the courts determine that a
particular covenant is vague or violates public policy, it could be voided. This happened in the case of Providence Construction Company v Bauer,
where a condition was made that the homeowner could not oppose any future
rezoning by the developer. This was a
violation of the owner’s constitutional rights to oppose government action
(zoning).
Environmental
Law
Finally, at
the federal government level, the growing impact of environmental regulations
must be considered. Environmental
concerns extend beyond issues like trash burning and flood controls, to areas
such as maintaining aesthetics by limiting tree removal or restricting types of
plants installed. For our pet kennel
example, animal waste is a known groundwater contaminant. Establishing a proper way of cleaning the
animal pens raises a real challenge. If
the land lies near a creek or other waterway, providing a satisfactory cleaning
system may be cost prohibitive.
Our
increasing regulatory environment presents challenges to understanding your
property rights. To guard against
unwelcome surprises, be sure to enlist the aid of experts such as title
companies and real estate attorneys to identify how all four of the above
factors will come in to play in your specific situation.
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