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DEVELOPMENT 101: SOURCES OF STRUCTURE & USE RESTRICTIONS

Today we offer a quick refresher of sorts. When it comes to real estate development-whether it be incorporating a new use, building a structure, or somehow otherwise modifying the existing conditions on site-there are several sources of laws and other "restrictions" that the developer and/or landowner should be aware of in advance. These include the following:

Deed - Sometimes the instrument forming the basis of land ownership will contain restrictions about what can and cannot be undertaken on the property, and often times where or when. Easement, right of way, restrictive covenant, and equitable servitude are terms one might hear in this context, and if present in a deed, they will describe the relative benefits and/or burdens that encumber the property. One important caveat: some of these "restrictions" might not appear on the face of the deed that conveyed ownership to the current owner, but are rather referenced in the chain of title for the property (prior instruments), and so it is important to have competent counsel identify whether those exist prior to development.

Lease - If there is a landlord/tenant relationship where a tenant is given permission to develop the property, the lease must also be reviewed for any constraints on development.

Condominiums - This form of ownership is governed by statutory law, and has its own series of instruments (Declaration of Trust, Bylaws, Rules and Regulations, etc.) that govern and might impose certain development restrictions.

Homeowners Association (HOA) - If the land is part of a duly formed homeowners association, there will often be constraints on property development and use found in the relevant documents. Important caveat: HOA restrictions sometimes prohibit uses that might otherwise be allowed under zoning. Generally speaking, HOA restrictions trump zoning in this situation. For example, if zoning allows for two-story homes in the relevant district, but the HOA has restricted the lots to single-story homes only, a two-story home would be prohibited unless the HOA removes the restriction.

Zoning - Zoning is a land use control that operates at the local municipal level. A zoning code (bylaw or ordinance) establishes various zoning districts within the community, as well as what uses and structures can occur in each district. Some of these uses/structure are allowed as of right (or, conversely, strictly prohibited), but many require some kind of zoning relief and approval first. These can come in the form of a special permit, variance, and/or site plan review. Depending on the proposed use/structure and zoning code, these approvals can range from a ministerial rubber stamp to a protracted application and hearing process (often with court appeals down the road if the applicant or another interested party is not happy with the outcome).

Other local laws/regulations - In addition to zoning, there are other sources of law that a developer must pay attention to before embarking on the project. These include building codes/permits, board of health regulations, historic preservation regulations, and conservation commission regulations (especially for wetland areas).

State and Federal laws - Depending on the land in question and the size and nature of the project, some state and/or federal laws (statutes and regulations) might be triggered as well. This is especially true for land that is near waterways/water bodies, wetlands, or that might contain protected animal or plant species. Certain facets of historical and agricultural preservation are also governed at this level, and might affect development. Many local laws and regulations mirror state and federal counterparts, but can often differ. Understanding the relationship between the various sources of law is vital to ensuring lawful development.

Written by Kristen M. Ploetz, Esq., of Green Lodestar Communications & Consulting, LLC, on behalf of Jeffrey T. Angley, P.C. Edited by Jeffrey T. Angley, Esq.

Copyright (c) 2011-2015 by Jeffrey T. Angley, P.C. All rights reserved.

Disclaimer: The information contained in this post is general in nature and for educational purposes only. No personal legal advice is being provided. If you have an actual legal issue that needs to be addressed, you should seek the advice of competent legal counsel. This post does not create an attorney-client relationship between the reader and Jeffrey T. Angley, P.C., Phillips & Angley or their attorneys.

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