Land use controls
Government powers over land, zoning tools and the private restrictions that run with property.
Land use controls in one paragraph
New Jersey 'c' variance vs 'd' variance
| 'c' variance | 'd' variance | |
|---|---|---|
| Also called | Bulk variance | Use variance |
| Covers | Dimensional rules like setbacks, lot size and lot coverage | A use the zone prohibits, expanding a nonconforming use, or density or floor area over the limit |
| Basis | Hardship from the lot's size, shape or topography, or a better planning result | Special reasons |
| Who usually decides | Usually the zoning board of adjustment | Zoning board of adjustment, with at least 5 affirmative votes |
Land use controls: 4 rules to memorize
PETE.
Police power, eminent domain, taxation and escheat are the four government powers.
Eminent domain needs just compensation.
The taking must be for public use.
Variance vs nonconforming use.
A variance is permission; a nonconforming use is grandfathered.
Private controls run with the land.
Deed restrictions and covenants bind future owners.
Land use controls, explained
Zoning questions usually hinge on vocabulary. A nonconforming use existed before a zoning change and may continue. A variance is permission to deviate from the current rules. A conditional or special use is allowed if certain conditions are met. Private controls, like deed restrictions and HOA covenants, can be stricter than zoning.
Taxation includes special assessments. Property taxes are based on assessed value and become a lien that generally comes ahead of other liens. A special assessment charges only the properties that benefit from a specific improvement, like new sidewalks or sewers, and is a specific lien on each of them.
In New Jersey, local zoning power comes from the Municipal Land Use Law. The planning board handles the master plan, subdivisions and site plans, and the zoning board of adjustment hears most variance requests. A 'c' variance is bulk relief, such as a setback or lot size, often because of a lot's size, shape or topography. A 'd' variance is a use variance, needed for a use the zone does not allow or to expand a nonconforming use, and it takes at least 5 affirmative votes of the zoning board of adjustment.
Private controls come from the deed or recorded documents. Deed restrictions and subdivision CC&Rs limit what owners can build or do, and condominium and HOA bylaws and rules add more. When a private restriction and zoning differ, the owner has to meet the stricter one.
How the exam tries to trip you up
- Eminent domain vs police power: if the government takes title and pays, it is eminent domain. If it only limits use through zoning or codes without taking title, it is police power, and no compensation is due.
- A homeowner wants a deck closer to the lot line than zoning allows. That is a bulk (c) variance, not a use variance. A use (d) variance is for a use the zone does not permit, like a business in a residential zone.
- Zoning allows something, but the recorded HOA covenants ban it. The owner still has to follow the stricter private restriction.
- A sidewalk charge billed only to the owners on one street is a special assessment, not a general property tax. It is a specific lien on each benefited property.
Land use controls practice questions
The government's power to take private property for public use with just compensation is:
Land use controls flashcards
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All 7 terms at a glanceShowHide
- Escheat
- Property passes to the state when an owner dies with no will and no heirs.
- Variance
- Permission to deviate from current zoning rules.
- Nonconforming use
- A prior legal use allowed to continue after a zoning change.
- Police power
- Government's power to regulate land use for public health, safety and welfare, through zoning and building codes.
- Special assessment
- A charge on only the properties that benefit from a specific public improvement; a specific lien.
- CC&Rs
- Covenants, conditions and restrictions recorded for a subdivision that limit how owners use their lots.
- Use variance
- In NJ, a 'd' variance allowing a use the zone prohibits; needs at least 5 affirmative board votes.
Land use controls: common questions
Sources and further reading
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