Real Estate

Do a town’s zoning regulations allow you to put up a garage or install a swimming pool on the property you are considering buying? Can you run a coffee shop, build a new home on a hilltop, rent an Airbnb, divide your land, or work from home? Understanding what a property owner can and can’t do is part of the due diligence process of buying any real estate, whether a farm, commercial building, or a home on a small village lot. Failing to research zoning laws can lead to major headaches and financial consequences down the line.

Whose idea was zoning anyway?

Zoning regulation is relatively recent. It emerged in the 1920s, when the United States Department of Commerce passed the 1924 Standard State Zoning Enabling Act, which allowed states to grant zoning powers to municipalities. By the 1950s, zoning was used to create low-density, single-family suburban zones, which often excluded multi-family housing. Nationally, lack of affordable housing is blamed on these restrictive guidelines, with intense debates continuing over local versus state control.

Comprehensive zoning came late to Main Street’s rural region. Salisbury, CT’s first zoning plan was enacted in 1959. The Town of Pine Plains, NY did not adopt a comprehensive zoning code until 2009, in response to the planned Durst development, while Amenia, NY adopted their plan in 2007 in reaction to a 2003 request to approve the private Silo Ridge Field Club.

Prior to formal zoning, most towns already had land usage regulations that spelled out how land could be divided into smaller plots. State Building Construction Codes as early as 1951 regulated structural integrity, fire safety, and plumbing. Basic land usage was often restricted by county-level health department regulations, and public safety ordinances addressed storage of flammable liquids and scrap yards.

How to find out? Who to ask?

Zoning information from any real estate agent, whether buyer’s or seller’s, should not be relied on. Registered real estate professionals are not legally responsible for independently verifying zoning laws, but they are responsible for not misrepresenting them. While agents must disclose known, material facts, agents should direct buyers to verify zoning regulations directly with municipal planning departments before buying for the most accurate, up-to-date information.

Buyers also need to ask if there are any zoning changes under consideration that may affect the property’s use. For example, the Town of North East is in the final stages of a four-year effort to revise its zoning code for commercial districts with residential and agricultural districts to follow in the future. The buyer of a 36-acre property in North East will just have to wait to see if new zoning rules will let them proceed with building a 24-room country inn. It may take years before the final version is implemented. The owner of the iconic Mobil gas station on Route 44 in Millerton is contesting a proposed zoning change that would prohibit sheds on his property. In Sharon, CT, the Planning and Zoning Commission is currently debating chicken and rooster regulations and, more importantly, restrictions on ridgeline protection to preserve views.

After you have done your due diligence, request a zoning verification letter confirming the current zoning laws, whether the existing use conforms to those laws, and a list of any active variances or special permits on record.

Wetlands are environmental zoning

Zoning regulations primarily involve restrictions on street frontage, setbacks from roads and neighbors, size of structures, and usage for the lot size. In addition to primary zoning regulations, buyers must also be aware of any overlay districts that add additional restrictions. “Wetlands” rules established to protect, preserve, and manage wetland resources also need to be checked to ensure compliance. These restrictions can significantly limit development by requiring large buffer zones. Wetlands buffer zones, which restrict building, can be as wide as 100 feet but are highly variable based on site-specific needs. Depending on the season, the land may not always look wet, and federal and state wetlands can be defined differently. If you are planning on building or adding a swimming pool you may require a surveyor and an environmental firm to mark the edges of flood zones, wetlands, and the buffer. The survey map pictured shows the complicated process that allowed a seller over the course of three years, thousands of dollars, and filing with three different conservation agencies the ability to obtain approval to build a swimming pool and sell the property. Their realtor had told them, “There’s lots of room for a swimming pool.”

Historic districts are “Heritage” zoning

Buyers can be surprised to discover that the property they are buying is located in an historic district, which can impose design guidelines and approval processes for external modifications. Sharon, CT established its Historic District Commission in 1975. Its purview covers the town green, including 18th-20th century buildings, Sharon Valley, and a high concentration of Colonial Revival estates. The primary restriction for property owners within the historic district is the requirement to obtain a certificate of appropriateness from the Sharon Historic District Commission before making any changes visible to the public, which extends to modifying the handrails to your front porch but not to changing the paint color.

Separate structures included as part of a National Register of Historic Places do not necessarily have any historic restrictions but may be eligible for favorable federal and state tax treatment if they meets\certain criteria.

A variance is a risky bet

A “variance” is an exception to zoning restrictions that a designated town zoning commission can grant to allow a property to deviate from standard regulations. Dimensional variances can allow zoning deviations regarding property dimensions, for example waiving a building setback rule for a garage too close to the property line or a height restriction for a proposed building that is too tall. This type of variance can be granted due to hardship: “There’s no other place to put a garage, and it’s just eight feet from the property line instead of ten feet and my neighbor doesn’t mind.”

Usage variances are permanent and attach to the land not the owner. They typically involve public hearings where neighbors can voice concerns. These exceptions can’t affect the character of the neighborhood, create a social issue, or have an adverse environmental impact. This type of variance is typically harder to receive as the potential purchaser of the 350-acre Migdale Castle in Millbrook discovered when petitioning the town for a special zoning overlay to transform the residence into a luxury resort. Due to vehement community opposition, the developer withdrew the application. The sale, which was for $14,000,000, was contingent on the variance. It did not go through, and eventually the property sold at auction in London for $8.96 million.

Minutes of planning and zoning board and zoning board of appeals hearings are available online and will provide a sense of how a particular municipality approaches zoning variances. Even if a variance is eventually granted, it can take months or years to finalize between getting on the board’s monthly agenda to scheduling public hearings.

“Grandfathering” has nothing to do with relatives

In zoning lingo, “grandfathering” is a legal nonconforming use exemption that allows existing property uses, structures, or conditions to continue legally even if they violate existing zoning laws, building codes, or regulations. Structures built before zoning was enacted are grandfathered and continue to operate legally under this exemption. Older homes in most village centers where zoning codes specify road frontage and a standard front yard setback from the street line often do not meet this standard.

Anything that was present before the zoning law was enacted is grandfathered as long as it was legal when built. In the instance of the Village of Millerton this means before June 8, 1977. Modifications made after that date should be evidenced by approved building permits. Buyers should determine if permits were issued for any modifications made to grandfathered buildings after 1977 to ensure compliance with current zoning requirements. When was that garage added? Was there a permit issued to add a bathroom?

Grandfathering can be terminated if there are changes such as major renovations, expansion, or demolition, in which cases the current code would be applied. If a grandfathered use stops, a business closes for a prolonged period of time, or the site is unsafe, grandfathering can be lost and current zoning requirements apply.

By taking the time to thoroughly investigate a property’s zoning status and permitted uses, buyers and sellers can avoid costly surprises and ensure they can use the land as they intend. Understanding these complex regulations and their implications is an essential part of all real estate transactions. •

Christine Bates is a registered real-estate agent in New York and Connecticut with William Pitt Sotheby’s. She has written about real estate and business since Main Street Magazine’s first issue in 2013.