Land Use Rules in New York Dictate Your Decisions

When you are buying your house did you consider whether you can have a professional office, whether you can add an addition to the north side, whether you can live in the third floor attic? These are all questions relating to the building and zoning laws both of New York State and the local town, county or village where you are buying. So what questions should you ask your real estate broker, your building inspector, your lawyer.

Here’s a quick list of some of the issues you should consider when you look at the property, whether it is residential real estate or a New York City building.

Does the property have a certificate of occupancy?

If it does have a certificate of occupancy, can you use the property for the current purpose, or can you use it for the use you intend? If the answer is that the current use does not fit the current certificate of occupancy, the issue is what does local zoning say about the past use, and any intended future use?

For example, there is an old cottage on the property, which houses a tenant, but the house and cottage pre-date the zoning code. What happens when you buy the property? Is the tenancy “grand-fathered” as a non-conforming use under the zoning code? What happens if you seek to change the use, will it require some sort of variance? These are intensive factual questions which require significant inquiry.

Generally, as towns and villages develop into zoning districts, the various uses are separated into commercial, residential and mixed uses. Often parking requirements limit or change the scope or use of a property. Sometimes individual communities or owners seek “landmark” or “agricultural” or other special designation and require special approval by architectural, agricultural, or other landmark preservation commissions.

If you are consider a sub-division of the lot, the right to sub-divide is often dictated by local law, prior sub-division restrictions on the maps, and other state or local rules, which must be followed. You must know these before you buy because ignorance of the laws or rules or restrictions is not a defense (excuse).

Sometimes, in New York City there are unused “air rights” or ” development rights,” which can be bought and sold just like property. In various agricultural areas and rural zones of New York there are laws which permit owners to transfer unused development rights to adjacent properties.

The bottom line– all towns, counties, villages and other city government planning rules and regulations dictate, through zoning, how a property can be used. Your local land use attorney should be familiar with the codes and should be able to advise you as to the use of your property. Be warned and ask the questions.