PUBLIC LAND USE CONTROL

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Zoning / Zoning administration / Subdivision regulation / Building codes

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At the state level, the legislature enacts laws that control and restrict land use, particularly from the environmental perspective. At the local level, county and city governments control land use through the authority known as police power. The most common expressions of police power are county and municipal zoning. Other examples of public land use control are:

• subdivision regulations
• building codes
• eminent domain
• environmental restrictions
• development requirements

Governments also have the right to own real property for public use and welfare. In exercising its ownership rights, a municipality may annex property adjacent to its existing property or purchase other tracts of land through conventional transfers. Where necessary, it may force property owners to sell their property through the power of eminent domain.

Zoning

Zoning is the primary tool by which cities and counties regulate land use and implement their respective master plans. The Constitution grants the states the legal authority to regulate, and the states delegate the authority to counties and municipalities through legislation called enabling acts.

The zoning ordinance. The vehicle for zoning a city or county is the zoning ordinance, a regulation enacted by the local government. The intent of zoning ordinances is to specify land usage for every parcel within the jurisdiction. In some areas, state laws permit zoning ordinances to apply to areas immediately beyond the legal boundaries of the city or county.

Zoning ordinances implement the master plan by regulating density, land use intensity, aesthetics, and highest and best use. Ordinances typically address:

• the nature of land use– office, commercial, residential, etc.
• size and configuration of a building site, including setbacks, sidewalk requirements, parking requirements, and access
• site development procedures
• construction and design methods and materials, including height restrictions, building-to-site area ratios, and architectural styles
• use of space within the building
• signage

Ordinance validity. Local planners do not have unlimited authority to do whatever they want. Their zoning ordinances must be clear in import, apply to all parties equally, and promote health, safety, and welfare of the community in a reasonable manner.

Building permits. Local governments enforce zoning ordinances by issuing building permits to those who want to improve, repair, or refurbish a property. To receive a permit, the project must comply with all relevant ordinances and codes. Further zoning enforcement is achieved through periodic inspections.

Types of zones. One of the primary applications of zoning power is the separation of residential properties from commercial and industrial uses. Proper design of land use in this manner preserves the aesthetics and value of neighborhoods and promotes the success of commercial enterprises through intelligently located zones.

Six common types of zone are

• residential
• commercial
• industrial
• agricultural
• public
• planned unit development (PUD)

Residential. Residential zoning restricts land use to private, non-commercial dwellings. Sub-zones in this category further stipulate the types of residences allowed, whether single-family, multi-unit complexes, condominiums, publicly subsidized housing, or other form of housing.

Residential zoning regulates:

• density, by limiting the number and size of dwelling units and lots in an area
• values and aesthetics, by limiting the type of residences allowed. Some areas adopt buffer zones to separate residential areas from commercial and industrial zones.

Commercial. Commercial zoning regulates the location of office and retail land usage. Some commercial zones allow combinations of office and retail uses on a single site. Sub-zones in this category may limit the type of retail or office activity permitted, for example, a department store versus a strip center.

Commercial zoning regulates:

• intensity of usage, by limiting the area of store or office per site area. Intensity regulation is further achieved by minimum parking requirements, setbacks, and building height restrictions.

Industrial. Industrial zoning regulates:

• intensity of usage
• type of industrial activity
• environmental consequences

A municipality may not allow some industrial zones, such as heavy industrial, at all. The industrial park is a relatively recent concept in industrial zoning.

Agricultural. Agricultural zoning restricts land use to farming, ranching, and other agricultural enterprises.

Public. Public zoning restricts land use to public services and recreation. Parks, post offices, government buildings, schools, and libraries are examples of uses allowed in a public zone.

Planned Unit Development (PUD). planned unit development zoning restricts use to development of whole tracts that are designed to use space efficiently and

maximize open space. A PUD zone may be for residential, commercial, or industrial uses, or combinations thereof.

Zoning administration

Zoning Board of Adjustment. A county or local board, usually called the zoning board of adjustmentor zoning appeals board, administers zoning ordinances. The board rules on interpretations of zoning ordinances as they apply to specific land use cases presented by property owners in the jurisdiction. In effect, the zoning board is a court of appeals for owners and developers who desire to use land in a manner that is not entirely consistent with existing ordinances.

The board conducts hearings of specific cases and renders official decisions regarding the land use based on evidence presented.

A zoning board generally deals with such issues and appeals as:

• nonconforming use
• variance
• special exception or
  conditional use permit
• zoning amendment

If the board rejects an appeal, the party may appeal the ruling further in a court of law.

Nonconforming use. A nonconforming use is one that clearly differs from current zoning. Usually, nonconforming uses result when a zoning change leaves existing properties in violation of the new ordinance. This type of nonconforming use is a legal nonconforming use. A board usually treats this kind of situation by allowing it to continue either

• indefinitely
• until the structures are torn down
• only while the same use continues, or
• until the property is sold

For instance, a motel is situated in a residential area that no longer allows commercial activity. The zoning board rules that the motel may continue to operate until it is sold, destroyed or used for any other commercial purpose.

An illegal nonconforming use is one that conflicts with ordinances that were in place before the use commenced. For instance, if the motel in the previous example is sold, and the new owner continues to operate the property as a motel, the motel is now an illegal, nonconforming use.

Variance. A zoning variance allows a use that differs from the applicable ordinance for a variety of justifiable reasons, including that:

• compliance will cause unreasonable hardship
• the use will not change the essential character of the area
• the use does not conflict with the general intent of the ordinance

For example, an owner mistakenly violates a setback requirement by two feet. His house is already constructed, and complying with the full setback now would be extremely expensive, if not impossible. The zoning board grants a variance on the grounds that compliance would cause an unreasonable hardship.

A grant of a zoning variance may be unconditional, or it may require conditions to be fulfilled, such as removing the violation after a certain time.

Special exception. A special exception grant authorizes a use that is not consistent with the zoning ordinance in a literal sense, yet is clearly beneficial or essential to the public welfare and does not materially impair other uses in the zone.

A possible example is an old house in a residential zone adjacent to a retail zone. The zoning board might grant a special exception to a local group that proposes to renovate the house and convert it to a local museum, which is a retail use, since the community stands to benefit from the museum.

Amendment. A current or potential property owner may petition the zoning board for an outright change in the zoning of a particular property. For example, a property zoned for agricultural use has been idle for years. A major employer desires to develop the property for a local distribution facility, which would create numerous jobs, and petitions for an amendment. The board changes the zoning from agricultural to light industrial to permit the development. Since a change in zoning can have significant economic and social impact, an appeal for an amendment is a difficult process that often involves public hearings.

Subdivision regulation

In addition to complying with zoning ordinances, a developer of multiple properties in a subdivision must meet requirements for subdivisions.

Subdivision plat approval. The developer submits a plat of subdivision containing surveyed plat maps and comprehensive building specifications. The plat, as a minimum, shows that the plan complies with local zoning and building ordinances. The project can commence only after the relevant authority has approved the plat.

Subdivision requirements typically regulate:

• location, grading, alignment, surfacing, street width, highways
• sewers and water mains
• lot and block dimensions
• building and setback lines
• public use dedications
• utility easements
• ground percolation
• environmental impact report
• zoned density

Concurrency. Florida has adopted policies that require developers, especially of subdivisions, to take responsibility for the impact of their projects on the local infrastructure by taking corrective action. Concurrency is a policy that requires the developer to make accommodations concurrently with the development of the project itself, not afterwards. For example, if a project will create a traffic overload in an area, the developer may have to widen the road while constructing the project.

 

FHA requirements. In addition to local regulation, subdivisions must meet FHA (Federal Housing Authority) requirements to qualify for FHA financing insurance. The FHA sets standards similar to local ordinances to ensure an adequate level of construction quality, aesthetics, and infrastructure services.

Building codes

Building codes allow the county and municipality to protect the public against the hazards of unregulated construction. Building codes establish standards for virtually every aspect of a construction project, including offsite improvements such as streets, curbs, gutters, drainage systems, and onsite improvements such as the building itself.

The Florida Building Commission developed the Florida Building Code after Hurricane Andrew uncovered the need for more robust codes throughout the state. The statewide Code governs the design, construction, erection, alteration, modification, repair, and demolition of public and private buildings, structures, and facilities in the state. Separate books are available for plumbing, residential, energy conservation, hurricane zone test protocols, building, accessibility, existing building, fuel gas, and mechanical codes. The Code is updated every 3 years and often amended annually.

The Code now includes risk categories for building types based on three wind speed maps. Because Florida coastal areas encounter higher wind speed storms, those areas must meet the higher wind load requirements. The Code defines those areas and provides options for meeting the building code requirements through initial construction and upgrades to existing structures.

Building permits. Florida statute mandates that anyone who plans to construct, enlarge, alter, repair, move, demolish, or change the occupancy of a building or structure or perform any work that is regulated by the Florida Building Code must first obtain the required permit. Depending on the work to be done, one project may require multiple permits. For example, renovating a structure may require a general building permit but may also require an electrical and/or plumbing permit.

Florida permits usually require drawn plans of the work to be done and proof of the property’s ownership. Again, depending on the work to be done, the permit may also require proof of insurance and/or proof of current licenses for any contractors or other professionals performing the work. New construction will also require a Florida energy code compliance certificate. Submission of the work plans will allow the city or county building department to also determine if the work will comply with wind load requirements.

 

Building inspections. During building construction or renovation, work completed will need to be inspected for code compliance and correctness. When an inspection is required for a particular phase of construction, work may not continue or resume until the inspector signs off on that phase. Inspections typically are required several times during a build or renovation. When the project is completed, a final inspection is required so that a certificate of occupancy can be issued and the property can be approved for occupancy and use.

R-value. An R-value is a measurement of the effectiveness of insulation and its resistance to heat flow. The higher the R-value, the higher the resistance, or the better the energy efficiency. City and countybuilding and energy codes specify the minimum R-value required for the building envelope which is defined as the parts of the structure that separate the outdoor environment from the interior environment, or the roof, walls, and floors.