Zoning runs with the land, except when it doesn’t

While equal treatment under the law must always be a government priority, a number of municipal attorneys believe that zoning approvals can expire if not acted upon within a specified period of time.

It is common knowledge that zoning ‘runs with the land’ and any parcel- or lot-specific zoning approval, such as a dimensional variance, continues with the land, not the property owner. In other words, if the person you bought your home from was granted approval to infringe into the side yard setback by two feet to construct a garage, then you, as the current owner, can continue to legally make use of the garage too.

The reason is based in the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution, which states that no state shall deny to any person within its jurisdiction the equal protection of the laws. In the case of a zoning variance, if the facts existed to approve the zoning request the first time, and then someone later asks for the same thing, under the same zoning ordinance, for the same parcel, there should be no way for the answer to be any different. Identical findings under identical circumstances is equal treatment under the law. Again, many planning and zoning officials understand that zoning decisions are permanent and run with the land.

Yet, zoning approvals can expire and it is common for an ordinance to have language that says ‘within X period of time an approved variance is valid and must be acted upon’. An example is a 90-120 day ‘window’ within which a variance must be acted upon. Such ordinance language does not conflict with the legal principle that variances are permanent and run with the land, because the variance has not been acted upon and rights have not been vested. Put differently, having zoning approval is not the same as ‘vesting rights’ by acting on a zoning approval with an investment on the property, such as the pouring of footings, construction of a foundation, or construction of the building.

A Florida Law Review article – Zoning Finality: Reconceptualizing Res Judicata Doctrine in Land Use Cases, Vol. 63 (Sterk & Brunelle, 2011) – frames the issue well from a legal scholar’s point of view. In the section ‘Time-Limited Variances and Special Permits’ (beginning on p. 1,157), the authors write “While a board can reasonably decide that circumstances might change …, reserving for itself the power to make a different decision that takes into account facts that subsequently unfold, a board cannot reasonably decide that its decision would be different … on precisely the same facts. As a result, the board’s current decision will bind the board in the future so long as the facts do not change” (p. 1,159). A footnote then reads “Whether the board should be free to depart from its initial determination based on newly discovered facts, that is, facts in existence at the time of that determination but not brought to the board’s attention, remains an open question. Courts typically defer to board decisions characterizing newly discovered evidence as changed circumstances”.

In conclusion, a zoning approval that has not been acted upon by the property owner can expire, but the approving body must be careful when weighing its decision the second time around. If the circumstances haven’t changed the second decision must be the same as the first, otherwise the local government may be at risk of a losing a challenge in court of violating one’s Constitutional rights to equal protection.

Michigan State University Extension land use educators can help your local unit of government better understand its legal roles, responsibilities, and limitations in planning and zoning. This is not a substitute for legal advice from a municipal attorney.

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