Grandfathered housing development zoning

by Winfred Pieterse
(Georgetown SC)

Visitor Question: Does the owner have any legal problems if his density is more than the R-3 zoning? The owner wants to rezone his property to R-4 to match new guidelines, but the neighborhood is concerned that adjoining property will be easier to change from R-3 to R-4. The owner said he would have problems rebuilding if the property suffers a 50% loss and also he would have problems if he wants to sell. His property was grandfathered in before zoning change. Thanks Winfred Pieterse chairman Building and planning Georgetown S.C.

Editors Reply: Thank you for asking the question. We encourage volunteer planning commissioners to ask questions such as these in order to do a better job.

We added a bit of punctuation, and we hope we got it right. If not, then beware that we might not have answered your question properly, but we think we have it right.

In a situation such as this, where we understand that a building once conformed to the zoning ordinance but now does not, the revision of the ordinance created what is called a nonconforming use in every place in the U.S. we know about. Please understand that every zoning ordinance is unique, so yours could be different. On the other hand, there are quite a few similarities across the country.

For the benefit of visitors, we are assuming a common vocabulary, where residential zoning district lettering starts with the letter R, and after that, the higher the number, the larger the number of housing units per acre are allowed.

In this instance, the property owner has a nonconforming use on his hands. You asked if that is a legal problem for him. Often there are no legal problems, but owning a nonconforming use usually puts two limitations on an owner.

First, as this owner stated, if his property is destroyed by fire, natural disaster, or other means more than a certain percentage of its value (often 50 percent, as apparently is the case in your town), then the structure cannot be rebuilt unless it is built to current standards. So the owner would not be able to rebuild as many housing units as he now has.

Second, nonconforming uses cannot be expanded. The owner cannot add on more units, or in the case of a single-family home or a business, no additions to the building could be made.

Your particular zoning ordinance might impose some other restrictions on nonconforming uses too.

So your owner probably is thinking correctly about what happens if the building is destroyed, and no doubt this limits his resale value to some extent also, as a new owner would face the very same restrictions we have been discussing.

However, you do not have to make all of this your problem. Instead, your job is to represent the entire community and think about what is best in the long run. You do not need to be intimidated by neighborhood opinion either, but they too probably have a point when they say that if you grant R-4 zoning to this one owner, it may make it likely for more R-4 zoning to occur later in the same general area.

Having said all of this, let's step back for a moment and think about what are the appropriate conditions for multi-family housing. We think there are three over-arching ones: (1) The city or town needs multi-family housing opportunities, (2) The location is one where transportation networks are sufficient to handle the likely volume of traffic, and (3) Utilities and other vital services are available in sufficient quantity and quality to meet needs. Ideally, multi-family developments have frontage on at least one street capable of handling a high volume of traffic, and larger developments are ideally located at major intersections.

Then it also is your obligation to look at the interface between the R-3 or R-4 district and the adjacent zoning districts. If those are single-family districts, look at the differences in maximum heights and minimum side and front yards especially. If those numbers are very different, you need to consider carefully how you can make or preserve a good transition between the two zoning districts.

In this case though what you really need to compare is the difference between R-3 and R-4 in its impact on adjacent zoning districts. Does R-4 allow considerably taller buildings than R-3? Are requirements for buffering at the edges of R-4 less than, more than, or the same as for R-3? How about requirements for open space? If R-3 must have more lawn area, better landscaping or fencing at property lines, and shorter buildings when compared with R-4, those differences are what you should consider. Often the differences between number of apartments are not felt by the neighbors nearly as acutely as the size of the buildings and the landscaping and lawn surrounding the buildings. Height is a big factor for neighbors as well.

Keep in mind that your zoning ordinance is individual, so now that you know what you are looking for, read your own ordinance provisions about nonconforming uses carefully, and then actually write down on paper the differences between R-3 and R-4. Try to steer clear of the emotional responses of both the property owner and the neighbors if you can, and do your best for the future of your community. If your community has determined it needs the density, that should sway you. Likewise, if traffic and utility demand exceed the capacity, that should give you the backbone to say no to the rezoning. If you have a good comprehensive plan that includes policies on these topics, consider it very carefully and try to abide by the spirit of the plan. But what neighbors think and property owners want should be somewhat lesser considerations.

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