REAL ESTATE

Zoning Laws

Zoning Lawyers in Columbus, Ohio

In law school, many law professors refer to property ownership as being akin to “a bundle of sticks”. In this analogy, each stick in the bundle corresponds to a specific right relating to the property. For example, property owners may have the right to quiet enjoyment, the right to be free from trespass, the right to possession, the right to create a covenant running with the land, and many others. All of this is to say, no person enjoys absolute ownership of a piece of property. Our rights to a piece of property are impacted by the rights of others. A property owner might give one of their “sticks” away to a bank in the form of a mortgage. An airline has the right to use a property owner’s airspace in order to fly their aircraft. The list could go on and on. 

But, one of the most important rights in this “bundle of sticks” is the right to enact zoning ordinances and resolutions. In Ohio, the state’s political subdivisions may enact zoning codes to dictate how real property may be utilized in certain areas. This occurs when counties, townships, villages, or cities enact zoning laws to promote public health, safety, comfort, convenience, prosperity, and the general welfare. Lawyers often call these prerogatives of the government the “police powers”. So, when a zoning resolution provides a lot setback requirement, or a minimum frontage, or dictates that a certain block may only be utilized for commercial buildings, this is the government exercising its police powers. 

Fortunately, property owners are not entirely at the mercy of the government when it comes to zoning laws. Assume for the purposes of this hypothetical that you owned a large parcel of undeveloped residentially zoned real property in the middle of a city. This land would be perfect for a large house. You think about it more and realize that you could make far more money by building two houses instead of one. However, you can’t build two houses on one piece of land. What you need is a lot split. Here’s the big problem though: the city’s zoning ordinance states that all residential parcels require a certain amount of frontage, and no matter how you split the parcels one or both of them won’t have enough frontage. At this point, you need to request what is called a “zoning variance”. A zoning variance essentially asks the government, through a zoning board, to grant you permission to do something in contravention of the established zoning code. This generally requires an experienced lawyer to make arguments on your behalf, ensuring the zoning board that the proposed variance would not alter the character of the neighborhood, or negatively impact the rights of any adjacent property owners. 

Sometimes, property owners can even change the nature of a piece of property, such as by converting the property from a residential property to a commercial property. This requires a much larger change than simple getting a zoning variance. Such a change requires re-zoning of the property. 

Local governments also enforce zoning laws. This is normally done through inspectors or officers who enforce the zoning code. If these officers discover an unlawful use or improvement, it could be problematic for the property owner. 

Penalties for violating zoning codes can be very serious. Criminal charges are one possibility, which could lead to convictions, fines and, in severe cases, jail time. Civil actions are also an option. Injunctive relief (a court order to cease any illegal use or to remove an unlawful improvement), removal or stoppage of the unlawful improvement or usage by the government, and other legal consequences could be imposed for violating a zoning ordinance. In any event, unlawful uses or improvements must typically be stopped or removed unless an agreement is reached. 

Violations of zoning laws create a unique issue, too, in that each day a violation continues is typically considered a new, separate offense. This means that common legal defenses like statutes of limitations or double jeopardy may not apply when the government seeks to enforce its zoning code. For example, if a property owner’s garage encroaches in a setback area, a city could issue a violation notice and commence legal action 15 years after the garage was built, and the person may ultimately be required to tear it down. Even if the city was unsuccessful in its first case against the garage’s owner, it could issue a new violation notice and commence a new action based on the “same” violation. 

Simply, any property owner should utilize the services of experienced zoning attorneys. Do you want to request a zoning variance or re-zoning? Have you received a notice of violation from a government entity? Contact the lawyers at Katz, Pryor & DiCuccio, LLP today.

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