Building on Vacant Land: Zoning Issues You Might Face

Make sure the home or other structure you plan to build is not prohibited by local zoning regulations; and that you won't face surprises in the neighboring property owners' use of land, either.

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Purchasing vacant land can be an exciting endeavor. But if you don’t investigate how the property is zoned before you buy, you might find that building your dream home or opening a small shop is strictly prohibited.

Just knowing the name of the land’s zoning designation (such as “residential” for homes or “commercial” for shops and other business uses) is not enough. You must also find out exactly what uses are allowed under the assigned zoning designation, and what restrictions might therefore apply to you as a landowner.

What Is Zoning and How Does It Affect You?

Property zoning is typically governed by local laws (also sometimes known as ordinances), which divide the land into different areas or “zones.” An area of land’s use is restricted to the purposes allowed in the applicable zone.

The goal of zoning is typically to organize land usage for maximum efficiency and livability. Commercial businesses, for example, are commonly more efficient and successful when grouped close together (in an “commercial” zone), and most people will prefer to build a home on property in a zone where industrial uses are prohibited, to avoid the chance that a loud, stinky factory might pop up next door.

Common Types of Zoning Designations

Zoning designations and the uses allowed under each designation vary from area to area. Common zoning designations might include:

  • “Residential” areas allowing homes or other dwelling units.
  • “Commercial” areas allowing the operation of retail stores, offices, restaurants, theatres, and so on.
  • “Industrial” locations, where manufacturing businesses (factories) are allowed.
  • “Rural” locations for farms and other open land.
  • “Historical” areas, offering protection to structures that have historical significance.
  • “Environmental” areas, which protect sensitive natural regions.
  • “Aesthetic” areas, prescribing how structures must look in the zoned area.

Zoning types are sometimes broken down further, into sub-types. For example, “residential” zoning may include several sub-types, each allowing for a different density of homes (such as “Residential 1” for single family homes only, “Residential 2” for duplexes, triplexes, and fourplexes, and “Residential 3” for any dwelling containing more than four units).

More than one zone might also apply to a property. For example, land zoned rural might also be in an environmental zone, or also in an aesthetic zone (or in all three at once).

Any way in which you plan to develop or use the property must comply with all applicable zoning designations, so you must review all of their requirements before you buy a piece of land that you wish to build on.

A “rural” zoning designation might, for example, allow only one home on the property, or restrict the number and size of any outbuildings. If the land is also in an “environmental” zone, construction on certain portions of the land might be prohibited, or you might have to maintain undisturbed animal habitat (such as existing trees or meadows) on the land.

If the land is also in an “aesthetic” zone, you might need to use certain paint colors and building materials, build within certain height parameters, or submit building plans for the approval of a review committee before commencing construction.

Zoning Ordinances Depend on the Land’s Location

Each locality commonly uses its own abbreviations for the various types of zoning. Ffor example, in one place, “R1” zoning might indicate a “residential” zone, and in another, “R1” might describe a “rural” zone.

Also, some locations have “cumulative zoning” schemes, which allow any use that’s considered less harmful or impactful than the zoned use. For example, industrial zones might rank as the highest impact, with commercial use next, and residential zones the lowest impact. So if you’re really eager to build a home in an industrial area, cumulative zoning might allow you to do so.

Don’t count on this system existing in all areas, however. Another location might not use cumulative zoning, and instead only allow the exact use specified by the designated zone.

How to Find Out About a Property’s Zoning

The property's seller (or real estate agent, if applicable) should be able to tell you the zoning designation for the land. It’s also an excellent policy to confirm what you’re told by looking at a zoning map of the area.

The local governmental offices that deal with land use and zoning can likely provide you with a copy of the applicable zoning map. Also take a look at the zoning of nearby properties, to ensure other allowed uses in the area won’t pose a problem. If, for example, you don’t wish to live near a farm or factory, make sure the nearby properties don’t allow for such uses.

Also obtain a copy of the applicable zoning ordinances and review their requirements If you need help deciphering the language of the ordinances or determining which are applicable, an experienced real estate attorney in the area can assist.

You Might Get the Zoning Changed

What if you love a particular piece of land, but its zoning won’t allow you to use it the way you want to? For example, perhaps you want sell the vegetables you intend to grow on the land by operating a small retail farm stand. However, you find out that the property’s “rural” zoning designation prohibits any commercial activity in that location.

You are not necessarily out of luck. Sometimes you can get zoning changed. (See Nolo’s Article “Can Zoning Be Changed to Allow Your Use of Vacant Land?”.)

Alternatively, you might be able to obtain a zoning variance or exemption to allow a use prohibited under the current zoning. Check with the local zoning department to see whether one of these is possible, and if so, what the next steps would be.

Obtaining a waiver, variance, or zoning change will likely involve a lot of paperwork, fees, hassle, and time. Further, there is no guarantee of success. If the prohibited use is especially important to you, finding a different property compatible with your use might be the best solution.

If you are set on a particular property, however, you should include a clause in the land purchase contract conditioning the purchase on first obtaining the necessary waiver or zoning change. The clause should allow a certain time period during which you can cancel the contract and receive the return of your earnest money deposit if you are not satisfied that you can obtain the zoning you need. An experienced attorney or other real estate professional can help you draft an effective contingency to accomplish this.

Investigate Zoning Now to Avoid Problems Later

Learning about the land’s zoning before you buy can help ensure you don’t make the mistake of purchasing some “wonderful” land that you can’t use the way you want after you own it.

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