Chapter 5 - Land Use Controls

Limitations on Zoning Authority

Statutory requirements: Cities and counties must provide notice and have a public hearing before they adopt new or amend existing zoning and planning ordinances. Constitutional limitations: Zoning authorities cannot interfere with property rights in an arbitrary or unduly discriminatory way.

One of the benefits of a wetland habitat is that it can help to prevent flooding? T OR F

T Wetlands can absorb excess water and can be a buffer zone for drier land.

Cluster zoning

allows developers to provide a varied selection of lot sizes and housing choices within a single area. A common element to areas with cluster zoning is the incorporation of greenspaces, or open spaces to add to the development's beauty and for the entire community's enjoyment.

Enabling acts

also called enabling legislation, are statutes that state legislatures pass that grant authority to an entity, such as a city or county, the power to take certain actions in its jurisdiction, such as the regulation of land use. Such acts often establish or empower government agencies to regulate or monitor certain policies, such as allowing local governments to establish zoning plans.

Zoning

is government regulation of the uses of property within specified areas. A municipality uses zoning to regulate the use of land located within its corporate limits as well as the buildings and structures located therein.

Certificate of Occupancy (CO)

is issued after the final inspection has been completed and all building code standards are met.

Land use planning, or urban planning

is the public policy carried out by local government to identify the best uses of land and to act as a basis for the adoption of zoning or other land use controls. The goal of land use planning is to balance the economic needs of urba

Zoning departments use zoning symbols to show types of property use

A typical zoning code has a list of different zoning districts. Zoning districts are all of the possible classifications that might be given to any particular parcel of land. For ease of reference, these are identified by a one-, two-, or three-letter designation (or sometimes a combination of letters and numbers). For example, R-3 is multiple-family, R-1 is single-family, M-1 is light industrial, and C-1 is for commercial property.

Types of Variances

A variance is also considered a form of administrative relief that allows property to be used in a way that does not comply with the literal requirements of the zoning ordinance. There are two types of variances: Use variances Area variances

Regulation of Special Land Types

Flood zones Wetlands Highway access restrictions Interstate Land Sales Full Disclosure Act Onsite septic systems

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Many cities in North Carolina, such a Raleigh, have enacted Unified Development Ordinances (UDOs), which combine regulations and ordinances of a city into one comprehensive document. Raleigh's UDO, adopted in 2013, includes most local land use and development regulations. You can learn more about Raleigh's UDO at raleighnc.gov.

Zoning Amendments

Property owners who want to use land in a way that is not permitted by existing zoning, he may petition the zoning authority to amend the existing zoning to allow the use he desires for his property. Prospective buyers who wish to use a property in a currently prohibited way will normally include a condition in the contract that the zoning authority rezone the land to match the buyer's desired use.

Zoning Purposes and General Guidelines

The purpose of public land use controls and zoning ordinances is to function as part of a comprehensive plan, also called a master plan, and to encourage the most appropriate use of the county or municipality land. The recommendations and goals of a master plan may be implemented by local authorities through the passage of zoning and subdivision ordinances, as well as through acquiring and budgeting public funds. Do not confuse a comprehensive plan with zoning, however. The comprehensive plan is general in nature, whereas, zoning adds the details. A comprehensive plan is a general policy guide for growth and development but does not carry the legal authority to regulate the use of land. On the other hand, zoning is a legal tool used to implement the goals of the comprehensive plan by regulating development and land use.

Use Variance

Use variances allow landowners to use their land in a way that is not permitted under current zoning laws, such as commercial use in a residential zone. This type of variance is granted only in cases when the current zoning ordinance causes the landowner an unnecessary hardship. To prove unnecessary hardship, owners usually must establish that the requested variance meets these conditions: The landowner is deprived of all economic use and/or benefit of the property and can provide financial evidence to that effect. The landowner did not create the hardship. The hardship is not common to the area or neighborhood. The variance will not change the nature and quality of the neighborhood.

Illegal use

also referred to as prohibited use, refers to the establishment of a property's use that violates a zoning ordinance after the zoning ordinance is in place. Any uses that are not listed as either allowed or conditional are considered prohibited uses by the zoning code.

Common-Interest Communities

in which lot or unit owners are legally obligated to provide financial support for the upkeep of common areas as well as other operating costs for the community. These costs can include liability insurance as well as management and legal fees. Common-interest communities, most of which are residential, usually fall into two legal categories: Condominium developments Planned communities

Spot Zoning

occurs when a public entity makes the decision to change the zoning for a single parcel without considering the larger planning context. In most states, spot zoning is the illegal rezoning of a single parcel or a small area to benefit one or more property owners rather than carry out the objectives of the master plan. Rezoning is a revision in zoning law, usually changing a zone from one type to another; it is not a variance or exception. Spot zoning is a perfect example of how the rezoning process can be abused if the law is not applied the same way to all property owners.

North Carolina Definition of Subdivision

"all divisions of a tract or parcel of land into two or more lots, building sites, or other divisions when any one or more of those divisions are created for the purpose of sale or building development (whether immediate or future) and includes all division of land involving the dedication of a new street or a change in existing streets."

Preservation Agreement

A "preservation agreement" means a right, whether or not stated in the form of a restriction, reservation, easement, covenant, condition or otherwise, in any deed, will or other instrument executed by or on behalf of the owner of the land or any improvement thereon, or in any other [order] of taking, appropriate to preservation of a structure or site historically significant for its architecture, archaeology or historical associations, to forbid or limit any or all

Be Aware of Planned Highway or Transportation Changes

A final responsibility brokers need to know about is the expectation that they are aware of planned major highway or public transportation changes in the area where the agent works and to disclose such information when appropriate.

Subdivision Statutes and Regulations

All subdivisions affect the safety, health, and welfare of the residents of the subdivision and the general public because subdivisions affect the environment. Under state law, municipalities and counties must regulate land subdivisions within their jurisdiction. This means that nearly every part of the state is subject to either city or county regulations related to subdivisions.

Enforcement of Private Land Use Controls

Any deed restriction that is reasonable and lawful can generally be enforced by the grantor or other property owners under the same restriction by seeking a court injunction to stop or remove the violation. In the event of a violation, anyone who is entitled to enforce the restriction may file a legal action in a court. Typically, this legal action seeks an injunction that will compel compliance by the one in violation. The court may also award damages. If the restriction is not enforced in a timely manner, however, the courts could determine that the right to enforce the restriction is lost. The term that describes this circumstance is laches, the loss of a right through undue delay or a failure to assert. For example, a subdivision has a covenant that forbids fences higher than four feet. However, over the years, residents have been quietly ignoring this restriction, and it's very common to see six-foot fences in the community. A homeowner would probably be safe in assuming that he too could put up a six-foot fence since no action was ever taken to prevent others from putting up a fence higher than allowed.

Broker Disclosure Related to Subdivision Streets Disclosure Law

Brokers must disclose certain related material facts, such as: The party responsible for maintaining the roads. The party responsible for providing ingress and egress to a property. Never assume that there has been governmental acceptance of maintenance responsibilities even if the street has a public designation.

Lucy is getting ready to split the family farm up into 20 individual lots. Which would NOT be an acceptable deed restriction? A. Houses must be painted white or grey. B. Houses must be at least 50 feet from the road. C. Owners may not sell the property to anyone from South America. D. Owners may not install swimming pools.

C. Owners may not sell the property to anyone from South America. A deed restriction that violates the law, such as the illegal discrimination of a protected class, would be void.

Conditional Use vs. Special use

Conditional Use refers to zoning districts that require properties to comply with specific standards and conditions. Consider the following summary by the North Carolina Supreme Court: special use of a property, which are uses outside of those permitted as a matter of right by a zoning ordinance, are permitted following approval of a special-use permit application

Declaration of Covenants

Declaration of Covenants, Conditions, and Restrictions (CC&Rs). CC&Rs are the rules and regulations established for a parcel of land. The owners accept these rules and regulations when they purchase the property. The CC&Rs for a new subdivision are listed in a recorded Declaration of Covenants,Conditions, and Restrictions (Declaration), which gives each owner the right to enforce the CC&Rs.

NC Statutory Authority for Governmental Zoning

Keep in mind that all private ownership of real property is subject to the legitimate powers of government, which includes eminent domain, taxation, escheat, and police power. Three of the four powers deal with specific situations. However, the fourth, police power, is used by the government to enact laws and regulations and to enforce the laws for the benefit and protection of the public health, safety, and welfare.

Types of Land Use Controls: Public vs. Private

Private restrictions are limitations created by private owners regarding the use and maintenance of the real estate. As long as the restrictions do not violate local, state, or federal law, they can be enforced by the seller. Public restrictions on the use of real property are those associated with government intervention.

Typical Matters Addressed

The goals and responsibilities that most community covenants deal with include: Establishing and defining the authority of the property owner's association. Addressing property owner voting rights. Determining shared expenses as well as annual and special assessments. Specifying requirements and architecture of structures, often requiring construction plan review by a committee. Restricting property uses, such as limiting use to a single-family residence, although mixed-use is sometimes permitted. Specifying the consequences of covenant violations. Making all covenants binding on subsequent owners. Determining the length of time covenants will be in effect and providing for a property owner renewal vote. Establishing maintenance standards.

CC&R Restrictions

Types of restrictions often imposed by CC&Rs include: Every owner in the subdivision is to pay annual dues that support insurance and maintenance of the common areas List of approved exterior colors for houses within the subdivision Prohibiting outdoor antennas or satellite dishes Maintenance standards for outdoor landscaping Prohibiting the parking of motor homes on the subdivision's streets or driveways or restricting how long (e.g., 72 hours) such vehicles can be parked Garage doors may not be left open for lengthy periods of time Prohibiting auto repairs on the subdivision's streets or driveways Requiring that backyards be surrounded by a six-foot solid fence

International Building Code (IBC)

codes that are published by the International Code Council. Usually, counties and cities adopt the state building code or a code that is similar to the state building code.

aesthetic zoning

efers to zoning regulations based only on aesthetic considerations. This type of zoning is allowed and was upheld by the North Carolina Supreme Court in 1982. In this case, the Supreme Court determined that it was constitutional for an ordinance to require junkyard owners to screen their property from public view. The Court determined that aesthetic zoning ordinances can benefit the general public enough to disregard the possible decrease in value for one individual's property.

Conditional Use

is the term used to describe a land use that, because of its unique nature, is compatible with the permitted land uses in a given zone only under certain conditions. Most zoning laws allow permits to be issued for certain uses that are inconsistent with a neighborhood's zoning designation but are necessary or beneficial to the community. Common examples of conditional use properties located in residential zones include: Fire station Schools Hospitals Churches Cemeteries

North Carolina Building Codes

the State Building Code Council adopted the State Building Code according to statutory guidelines. State building codes detail minimum standards of new construction safety requirements related to HVAC (heating, ventilation, and air conditioning), sewers and drainage, construction, electrical installation, exits, room size and location, and other construction-related items. These codes also detail minimum standards for renovation or remodeling of older structures. For example, these older structures must meet the standards of current building codes.

Zoning ordinances

usually regulate permitted uses of land, such as lot size, building size and location, and specific requirements for compliance.

There may be subcategories allowed, such as for a group home

which serves the special needs of a group, usually the physically or mentally disabled or those recovering from an affliction or dependency. Foster homes, rehabilitation centers, and halfway houses are all examples of group homes. There are also non-residential zoning classifications in most municipalities.

Height limits

which state how tall the buildings can be above the average grade. Includes height, number of stories, and size of buildings and other structures.

In the U.S. Supreme Court Case Euclid v. Ambler Realty Co., 272 U.S. 365 (1926), the court reversed the lower court decision and upheld Euclid's zoning regulation as a valid exercise of the police power. In doing so, the Supreme Court stated:

"Regulations, the wisdom, necessity, and validity of which, as applied to existing conditions, are so apparent that they are now uniformly sustained, a century ago, or even half a century ago, probably would have been rejected as arbitrary and oppressive. Such regulations are sustained, under the complex conditions of our day, for reasons analogous to those which justify traffic regulations, which, before the advent of automobiles and rapid transit street railways, would have been condemned as fatally arbitrary and unreasonable." The Euclid decision laid the foundation for modern land use regulation because local and state governments knew that, as a general principle, these regulations did not violate the Constitution.

conservation agreements

"conservation agreement" means a right, whether or not stated in the form of a restriction, reservation, easement, covenant or condition, in any deed, will or other instrument executed by or on behalf of the owner of land or improvement thereon or in any order of taking, appropriate to retaining land or water areas predominantly in their natural, scenic or open condition or in agricultural, horticultural, farming or forest use, to forbid or limit any or all

Exemptions to Subdivision Definition

(1) The combination or recombination of portions of previously subdivided and recorded lots if the total number of lots is not increased and the resultant lots are equal to or exceed the standards of the county as shown in its subdivision regulations. (2) The division of land into parcels greater than 10 acres if no street right-of-way dedication is involved. (3) The public acquisition by purchase of strips of land for widening or opening streets or for public transportation system corridors. (4) The division of a tract in single ownership the entire area of which is no greater than two acres into not more than three lots, if no street right-of-way dedication is involved and if the resultant lots are equal to or exceed the standards of the county as shown by its subdivision regulations. (5) The division of a tract into parcels in accordance with the terms of a probated will or in accordance with intestate succession under Chapter 29 of the General Statutes.

Recognize Signs of and Potential for Flooding

A broker is expected to be able to recognize patent signs of flooding on a property or when a property's location may make it susceptible to flooding, such as if it is located near a river, creek, stream, or other body of water. A broker should assist the parties with locating and reviewing the flood hazard area maps (FEMA maps) or checking with the local planning office to determine if there is any potential flooding problem.

Avoid Representations without Verification

A broker must avoid any representation about a property's zoning or permitted land uses without verifying the property's zoning and, if appropriate, flood hazard area maps and any restrictive covenants affecting the property. You must never give false information, whether it is intentional or through negligence. Brokers violate license law when they make incorrect statements about permitted land use under either zoning ordinances or restrictive covenants, whether those statements are made willfully or negligently. You must also ensure you are making the proper disclosures.

Variance

A variance is a local land use decision allowing a use that is not strictly in compliance with local zoning or building regulations. A city or county may allow a variance or an exception to existing zoning regulations for special reasons. For example, if a lot has an irregular shape and does not meet the standard zoning for a side-yard setback, the owner is at a disadvantage when trying to develop the property. A variance may also be used on a commercial property to meet, for instance, parking space requirements. The owner may ask the city or county for a waiver or zoning variance, which would allow the property to be developed. To put it simply, a variance is a deviation from a development standard. A variance is not the same as a change in zoning classification

Zoning Ordinances are Not Contracts?

A zoning ordinance does not provide any type of contract between property owners and the government. In other words, property owners have no guarantee that the zone will not change either in restrictions or boundaries. Cities can change rezone and remap at any time, so it's important for real estate licensees to stay current on zoning and planning activities in the markets where they do business.

Covenants Run with the Land

An important principle regarding restrictive covenants is that they are appurtenant, meaning they are attached or binding on subsequent owners of a lot in a subdivision for a perpetual duration. Because of this appurtenance, it is often said that a restrictive covenant "runs with the land." What this means to subsequent owners of subdivision lots is that they may not use the properties in a way that is in violation of the restrictions. Typically, the declaration of covenants is recorded. One reason a broker should encourage a buyer to have a title search performed is to discover any such covenants. Restrictive covenants run with the land only if they touch and concern the land. They must relate to the use, maintenance, or improvement of the real property. A covenant that prohibits a property owner from smoking obviously cannot run with the land. However, a covenant prohibiting smoking on the property does; therefore, it is a valid restrictive covenant. To make a restriction enforceable against third parties, it must be recorded. Once a covenant is in the chain of title in the public records, future buyers take title subject to the restriction, even if it is not stated in the deed.

When Covenants and Zoning Regulations Differ

Another principle a broker must be familiar with is that there can be conflicts between zoning regulations and restrictive or protective covenants. When covenants differ from zoning regulations on a particular matter, the more restrictive of the two will control. Example. Let's say that Tiffany Lakes is a subdivision in an area that falls under a municipal zoning ordinance that allows property owners to put up fences. The subdivision is also under restrictive or protective covenants, and these restrictive covenants dictate that property owners in the subdivision may not put up fences. Because the restrictive or protective covenants impose greater restrictions than the municipal zoning, the subdivision covenants control and the property owners are prohibited from putting up fences. Nevertheless, if a restrictive or protective covenant is contrary to laws and public policy, it is not enforceable.

Review of Broker Dos and Don'ts

DOs: Provide advice without crossing the line into actions that constitute the practice of law. Obtain a working knowledge of land use regulations, which means a broker can answer questions about possible uses of real property and provide some general advice. Remember that public or private land regulations, or both, affect all property. Always make the proper disclosures. Remember that property use limitation is considered a material fact (part of a broker's duty of reasonable care). Be prepared to inform prospective buyers that zoning ordinances, deed restrictions, or restrictive covenants may exist and that they should investigate before making a purchase decision. Recommend that the interested parties verify the permitted land uses. Be prepared to refer clients and customers to attorneys and other qualified experts, as necessary. Never interpret zoning, deed restrictions, or any other restrictive covenants. Recognize red flag situations regarding land use issues; recognize and take appropriate action with regard to potential problems with restrictive covenants—this is particularly important. Advise the parties involved of the potential problem; keep buyers informed about land-use restrictions, such as zoning ordinances or restrictive covenants, that could affect their purchase decisions. Be able to recognize signs of flooding on a property or when a property's location may make it susceptible to flooding; assist the parties with locating and reviewing the flood hazard area maps (FEMA maps) or checking with the local planning office to determine if there is any potential flooding problem. Be aware of planned major highway or public transportation changes and disclose such information when appropriate. DON'Ts: Make any misrepresentations. Give false information, whether it is intentional or through negligence. Provide any representation about a property's zoning or permitted land use without verifying the property's zoning and, if appropriate, flood hazard area maps and any restrictive covenants affecting the property. Express an opinion about permitted land uses for a specific property.

Mixed-Use Districts

Early zoning ordinances were typically nothing more than documents aimed at prohibiting commercial and industrial uses in residential zones. Modern zoning ordinances are more complicated and include permitted uses, limited uses, conditional uses, special uses, and prohibited uses in zoning districts. In some municipalities, the permitted uses are detailed by mixed-use and conditional-use districts. Mixed-use districts may include a mix of residential and commercial uses, which allows for flexibility and changes based on land development trends.

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Eminent domain is the government's constitutional power to appropriate private property for public use. The actual act of taking the property is known as appropriation or condemnation.

Brokers should check with the state health department to locate an existing septic permit. T or F

F Brokers should obtain copies of previously issued septic permits from the county health department to verify capacity of the installed septic system and any system restrictions.

Licensees' Responsibilities Regarding Land Use

Knowledge of the impact that land use controls can have on the property your client is interested in purchasing is a crucial part of your duties as a real estate licensee. It is so important, in fact, that a lack of knowledge can result in you facing both civil and criminal liability. Under the NC Real Estate License Law, for instance, a licensee has the following responsibilities regarding verification of land use and recognition of potential land-use problems: A duty to avoid any misrepresentation regarding permitted land use. A duty to recognize potential land-use problems. An affirmative duty to discover and disclose any such problems. For example, do you know whether local zoning ordinances will allow your buyer client to run a business out of that house she wants to purchase? Might that information be important to her? What if another buyer client intends to convert a single-family home into a duplex? Would that be allowable under the local zoning ordinances? And if so, would it be allowable in his particular subdivision?

Zoning Specifications

Minimum lot sizes Minimum front feet on a road or street Maximum building height limits, often to comply with local fire codes Setback requirements and side yard rules that require buildings to be at least a specified distance from the front and side property lines Density of the area, in other words, the ratio of land to improvements or a maximum number of units Buffer zones or visual barriers to separate and screen residential areas from nonresidential areas Zoning ordinances may address other items such as: The size of the building may depend on the size of the lot Off-street parking Landscaping Outdoor lighting Greenspace

Enforcing Zoning Ordinances

Municipalities sometimes establish a zoning certificate system. Before constructing or altering any building, a property owner must first obtain a zoning certificate or zoning permit that is issued only if the building plans, and the proposed use of the property, conform to the zoning laws. Use and occupancy permits are documents indicating that an inspector, typically a code enforcement officer, is satisfied that the building is suitable for occupation by meeting appropriate standards for health and safety. Building codes are another way to enforce zoning. Recall that building codes are mainly enforced through the building permit system. A zoning board of appeals hears and decides requests for variances and special permits brought before the board. Interpreting zoning laws is also a function of the zoning board of appeals. Zoning laws may also be enforced through the courts. If land-use decisions are challenged in the courts, experience has shown that the courts tend to uphold decisions made at the local level.

Zoning Concepts, Terminology, and Special Procedures

Nonconforming Use Illegal use Zoning amendments Variance Special use permit (or special exception) Overlay district Historic preservation zoning Aesthetic zoning Spot zoning Cluster zoning Buffer zone

North Carolina Planned Community Act

North Carolina courts generally disfavor affirmative assessment covenants, which are covenants that require a property owner to pay assessments or annual dues. The North Carolina Planned Community Act was passed because homeowners associations in planned communities were frequently found to be at a disadvantage when faced with trying to enforce covenants against property owners who violated those covenants. This Act expands homeowners' association authority and makes restrictive covenant enforcement easier. Brokers representing prospective buyers of properties in planned communities should ensure the buyers are informed about the governance and powers of the homeowners' association. Brokers should also make sure these prospective buyers are informed of possible assessments and of legally permitted enforcement and collection remedies.

Historic Preservation Zoning

One reason overlay districts are often used for historic preservation zoning and a historic district's structures is because preservation of historic areas is generally supported by public policy. It is common for the requirements of the overlay to be added to existing zoning regulations. The North Carolina Supreme Court has held that overlay districts constitute the proper exercise of police power to preserve the exterior appearance of historically significant structures in North Carolina. Before one of these historic properties can be changed, such as to be restored, moved, or demolished, the owner must obtain a certificate of appropriateness that received historic district commission approval.

Legal Conforming Use and Permitted Uses

Properties that conform to the zoning ordinances are said to be a legal, conforming use. Permitted uses meet the current use requirements within the district. Typically, permitted uses are permitted by right or are permitted with a conditional use permit. Uses permitted by right are allowed within a particular zoning district without additional permission from the city. For example, single-family homes are permitted by right in single-family zoning districts. Some other uses might be allowed if the owner gets a conditional use permit (CUP).

Recognize Land Use Issues and Notify Parties

Recognizing and taking appropriate action concerning potential problems with restrictive covenants is particularly important. A broker is expected to be able to: Recognize red flag situations regarding land use issues. Advise the parties involved of the potential problem. Recommend that the interested parties verify the permitted land uses. keep buyers informed about land-use restrictions that could affect their purchase decision.

Terminating Restrictive Covenants

Restrictive covenants may be terminated in a number of ways, including: Setting a termination date Releasing the owner from the covenant Abandoning the property Changing the circumstances of the property and/or the owner Restrictive covenants that become illegal after they were written automatically terminate. For example, a deed restriction indicating people of certain religious beliefs or nationalities may not purchase land may have been legal and enforceable in the past. However, when the Civil Rights Act of 1968 was enacted, religion, national origin, and ancestry became protected classes and these deed restrictions became illegal, thus automatically terminating them. Any covenant included in a deed restriction today that violates the law would be unenforceable.

The Duty to Disclose for Brokers

While a broker does not need to conduct a search of public records for restrictive covenants, perform a title search, advise buyers on permitted or prohibited land use, or interpret covenants, since those are legal matters, he does have a duty to disclose material facts related to land use. Examples include: Restrictive covenants Zoning ordinances Association dues and assessments

The Duty of Reasonable Care for brokers

While a real estate licensee is not expected to be an expert on the zoning ordinances in a particular community, there is a due diligence responsibility to be aware of potential red flags. For example: Does a prospective buyer intend to use the property in a way that is different from its current use? If so, would that intended use conform with current zoning requirements? Are there pending or proposed changes to local zoning ordinances that might impact the use of the property and, therefore, affect its value?

Importance of Verification

While it may seem logical to assume, for instance, that your client wants to buy a residential property as their home, this may not be your client's intended use. You need to discover your client's intentions and understand whether the property meets those needs given any land-use restrictions. A wise broker will advise his buyer or tenant clients to verify that their desired land use is permissible. For information about land-use restrictions, clients should be referred to the municipal or county planning department as well as an experienced attorney, if needed.

Private Land Use Controls Terms

While the general concepts of private land-use restrictions are not too complicated, confusion can arise in the way some terms are used interchangeably. For example, you may hear the term covenant. Covenants are promises or guarantees in a deed or other document. In the context of land use, a covenant is legally enforceable, and it defines ways that land may be used. Paint colors for doors and shutters are examples of items that may be included in a subdivision's CC&Rs. Other terms you may hear that have the same meaning are CC&Rs, restrictions, restrictive covenants, equitable servitude, and protective covenants.

Deed Restrictions

also known as restrictive covenants, are limitations placed in a deed by a private grantor that restrict the way the land may be used, improved, or maintained. Such restrictions can affect specific deeds or an entire neighborhood and are frequently encountered in residential subdivisions. An example of a deed restriction is the reservation of mineral rights by a previous owner. This type of restriction must be carefully reviewed because it can include the right of surface entry. The holder of the mineral rights can mine for those minerals at any time without regard to any improvements on the property. That situation would make building on the property extremely difficult. Deed restrictions are void if they are unlawful, impossible to perform, or in restraint of alienation. A restraint on alienation is an attempt in a deed or will to prevent the sale or other transfer of real property.

zoning classifications

although originally there were only three: Residential, commercial, and industrial. Now there are multiple zoning classifications, each with numerous subcategories.

Homeowners associations (HOAs) or property owner associations

are generally formed as nonprofit corporations for the purpose of managing homes in a residential development. Homeowners in the subdivision usually pay a regular fee (monthly, annually, etc.) to the association for general maintenance and upkeep of the common areas in the subdivision, such as pools, parks, lakes, landscaping, etc. The duties and powers of the association should be detailed in a homeowners association agreement, which must be signed by the property owners in the subdivision. Most HOAs have the authority to enforce any CC&Rs imposed by the developer on behalf of the whole community or to impose additional rules and regulations. They may be able to levy special assessments against the property owners to cover the expense of improvements to the shared common areas or even impose fines for noncompliance.

Zoning ordinances Part 2

are laws that divide a city or county into different areas, or zones, to set forth permitted uses and activities under each zoning classification and specifying requirements for compliance. Zoning ordinances typically have two parts: A zoning map that divides the community into designated districts Text of the zoning ordinance that sets forth the type of use permitted in each zone, including specific requirements for complianc

building departments

are responsible for issuing building permits and for seeing that building code restrictions are followed and construction and renovation are done by licensed professionals. Building departments are essentially the gatekeepers of any construction project.

zoning reclassification

can impact property values by either increasing or decreasing them. Even in cases where a zoning reclassification lowers a property's value, this on its own is not a justification to make a zoning ordinance invalid.

Subdivision Regulations

control the way by which developers may divide land into blocks and lots that can be sold to individual property owners, as well as the way by which streets, sidewalks, utility systems, and other infrastructure must be laid out to adequately serve the area and to be developed to connect with any existing systems. These regulations may govern any of the following: Size of the lots in a subdivision Location and grading of streets and sidewalks Easements for sewer, water lines, and other utilities Amount of open space and recreational areas

Land Use Planning

determines what parts of a community are used for residential areas and what parts are used as commercial areas. The main task of county and city planners is to keep different uses of land that might be incompatible, such as residential and industrial, away from one another, even though each has a place in a community. Their goal is to create a unified plan that promotes smart growth and intelligent building decisions rather than to allow haphazard land uses.

Overlay District

exists where there are "layers" of zoning regulations, such as when a newer zoning use is superimposed over an older map, incorporating additional uses or restrictions on the underlying zoning map. The goal of an overlay district is usually to preserve a historic neighborhood's character, although there are other common uses, such as for neighborhood conservation districts and watershed districts.

Residential zones

for example, are for dwellings and not commercial buildings. Residential zones could include subcategories that allow only single-family homes or multi-family dwellings.

building permits

from the local government, and business owners must acquire business licenses before they open their doors to the public. Building codes set construction standards, and plans must comply with the code for a permit to be issued. Failure to comply with the permit may result in a stop order, fines, and/or injunctions.

planning board or planning commission

hat holds public hearings, investigates solutions for planning issues, and makes recommendations to the appropriate legislative authorities. Planning boards are generally involved in activities that directly affect the growth and development of a city. A planning board will likely consider the following factors when reviewing a developer's proposal for a new subdivision: Demography, environmental impact, infrastructure needs, plat map, and zoning permitted use.

Types of Subdivisions

he smallest type of subdivision is a lot-split, which involves splitting one lot into two smaller lots. Large-scale subdivisions require approval by the city planning commission and submission of both a preliminary plat and final plat of the subdivision. A plat is a plan or a map, such as a detailed survey map, of a plot of land, especially used in construction site mapping. These show the site survey information and engineering designs for site improvements, legal descriptions and land transfers for public use, and approved scheduling and financing of required improvements. It may be a survey of a subdivision showing boundaries of lots, streets, easements, etc., which, upon approval, is recorded and becomes the basis for the transfer of title of the individual lots.

Contractor

is any person who engages in the business of construction and includes subcontractors, general contractors and any other person arranging for the performance of work on real property.

Extraterritorial Jurisdiction

is granted to cities through this statute to meet this need. Real estate licensees need to be aware of this fact, particularly when dealing with properties outside of a city's borders.

comprehensive plan

is the general, inclusive long-range plan for development of an area that recognizes the physical, economic, social, political, aesthetic, and related factors of a community. A comprehensive plan: Is a written document that identifies the goals, objectives, principles, guidelines, policies, standards, and strategies for the growth and development of a community, including its housing needs. Is used to coordinate and guide the creation of development regulations. Includes provisions on land use, transportation, location and type of community facilities, and an energy element. Includes land use maps that address the overall goals with respect to the growth of the city or county. North Carolina has a comprehensive plan requirement with which the zoning ordinances for all cities must comply. Although a city does not need to have a separate written master plan, there must be a zoning plan for the entire city and not just for an arbitrarily selected area. This has been upheld by the North Carolina Court of Appeals.

urban and regional use planning

is to developed land in an orderly and systematic way. Zoning is the major process used by urban and regional planners. Local land-use plans are very important tools for brokers who want to familiarize themselves with land use.

building codes

minimum standards to safeguard life, health, property, and public welfare by regulating how buildings are designed and built. The local building codes control the location, design, construction, and quality of materials of all buildings and structures located within their city or county.

Subdivision covenants, conditions, and restrictions

never require the grantee to forfeit the title to the property. The purpose of CC&Rs is to keep the subdivision attractive and protect the market value of the homes. The lots are mutually burdened and benefited by the restrictions.

Government Ownership

nother method of public land-use control is government ownership. The federal government, for example, owns hundreds of millions of acres throughout the US, all regulated under very specific and complex federal laws. This land is often used to create parks for the preservation of natural resources. State and local governments may also own land or control the development of land. They may acquire rights, such as easements. Examples of land use for public benefit include highways and other roads, libraries and museums, and public parks.

Nonconforming Use

occurs when land use does not conform to current zoning laws but is legally allowed because the land use was established before the new zoning laws were enacted. If a city or county changes the zoning of a parcel so that the existing uses are no longer allowed by the new zoning, existing properties may retain the previous zoning (and usage) under a grandfather clause. This means that those existing activities are legally nonconforming uses. Nonconforming uses that existed lawfully before the adoption of the current zoning are normally allowed to continue for a set time

Zoning regulations

often list size restrictions applicable to each parcel within a given zoning district. Examples of size restrictions include: Height limits Setbacks Minimum lot size, Size of yards, courts, and other open spaces. Population density. Location and use of buildings and other structures. Land for business, industrial, residential, or other purposes.

buffer zone

provide a visual or sound barrier or transition that separates one area from another, such as separating different land use zones, such as residential from nonresidential areas. For example, a buffer zone could be an open space in a subdivision to provide privacy.

Zoning regulations

provide definitions and all relative regulations.

private restrictions

such as subdivision restrictive or protective covenants, are imposed by developers in a subdivision or condominium community. Restrictions may appear in the deed itself or, more likely, in a separate document that is referenced by the deed called a declaration of covenants, conditions, and restrictions (CC&Rs). Such restrictions often indicate the type of structures allowed, the setback from the street, the minimum or maximum home size, the materials used in construction, the allowable height of fences, the colors of paint allowed, etc.

North Carolina Subdivision Street Disclosure Law,

the developer must also give a disclosure statement to a prospective buyer before selling a lot. This disclosure statement must provide the following information: Whether the property's frontage street will be public or private. Whether a road is public or private is important information for a buyer because road maintenance can be costly. If a public street, the developer (or seller) must certify to the prospective buyers that Division of Highways has approved the street and that the street's construction meets state standards. Depending on the location and nature of the street, additional information may need to be disclosed. If a private street, the developer (or seller) must disclose an explanation of the maintenance responsibilitiesof the buyer and disclose that the street may not meet state standards.

Zoning map

visually reflects the various zoning districts within the municipality's limits. These maps are an important part of a comprehensive plan.

Purpose for Private Land Use Controls

when English common law was prevalent, there were no restrictions on a neighbor making use of his property in an offensive way, such as by building a factory, a slaughterhouse, or using it in a way that was dangerous to the well-being of others. In real estate law, this is referred to as a nuisance. An attempt was made to legally prevent this type of land use, but it was an expensive and time-consuming endeavor. Furthermore, it was not very effective. Free use of land is still generally favored by current laws and policies.

Setbacks

which limit how close a structure can be built to neighboring property lines. Includes setbacks and percentage of a lot that may be occupied.