You’ve been in your home for a long while and have every intention of living there forever – with a few changes. But what if the zoning for your area changes before you get a chance to act?
Perhaps you’d anticipated that you would add a room or two when your kids got older and needed their own bedrooms, but the zoning for your district was changed such that the new setback requirements don’t give you enough space to enlarge the footprint of your house. Now what? Will such zoning amendments adversely impact what you can do with your house or your ability to enlarge, refinance, or sell it?
Virtually every city, town, village, or other municipality has some form of land use ordinance or bylaw – usually called zoning – that governs the dimensions of building lots, the uses to which the lots can be put and, less often, the dimensions of the structures that can be built on the lots.
As a municipality changes (sewer lines are extended further from the center of the town, a new highway shortens the commute to the nearest city, or improved school, fire and police services attract more families), zoning regulations tend to change as well, often to contain or at least shape new residential development.
Typically, the new regulations increase minimal dimensional requirements, like front, rear, and side-yard setbacks or minimum lot size and street frontage, or they decrease the number and kinds of uses that will be permitted on the lot. These amendments, if applicable, can severely restrict homeowners’ use of their homes or land.
Accordingly, municipalities often protect homeowners from hardships created by zoning amendments by “grandfathering” existing building lots. The local zoning bylaw or ordinance, or the state zoning enabling act, may provide that increases in area, street frontage, or front, back, and side setback requirements for specified uses (usually residential) will not apply to building lots that were conforming building lots when the zoning amendment went into effect.
Different states may further qualify this protection in different ways. For example, in Massachusetts, in order to qualify for “grandfather” protection, the building lot must have a minimum of 5,000 square feet of area and 50 feet of public road frontage, be located in a district zoned for single- or two-family residential housing, conform to existing zoning when legally created, and be separately described and held from any adjoining land when the more restrictive zoning changes went into effect. Be sure to check online or with your town or municipal clerk to get a complete list of additional conditions that might limit the scope of your town’s “grandfather” provisions.
If a change in the zoning ordinance is not covered by its “grandfather” provisions, for example, there's a new limitation on the height of front, side, and rear yard fences, your only recourse may be to ask your local board of zoning appeals for a variance from the new zoning regulation.
“Hardship” is typically the test for whether a board of zoning appeals will grant a variance, but boards are usually sympathetic to claims that a zoning change, while not “grandfathered,” nevertheless imposes a real hardship on existing property owners who could not have anticipated the more restrictive regulation when they purchased their home.