Land use regulations are designed to provide a uniform mechanism for controlling development in a community. They are intended to serve many functions. They protect the environment. They provide aesthetic controls. And they incorporate public safety requirements as well.

These regulations are often adopted by local legislative agencies. They might include local land use boards, local town councils, or perhaps county based agencies or authorities.

Local land use laws are presumed to be valid and legal by reviewing courts. But that presumption may be challenged. Some of these laws are in fact excessive and subject to successful challenge.

Why should you care about the validity of local land use laws? Academically, you should care about any potential over-regulation by government. Don’t you remember the 1960s?

But, lets face it, we are all too busy to worry about things that do not directly affect us. In reality, most people only become concerned about these issues when they are making an application to construct or modify their own home. Then, an unfairly restrictive regulation isn’t just academic -- it becomes a true barrier.

Here are some examples of problems that people encounter:

1. They want to build a home on a lot, but the home is too big for the lot according to local regulation. That’s what the regulation says -- but its clear that the house fits on the lot just fine.

2. They want to have a paved drive way, but state law requires an impervious cover, which means they have to used pebbles or in certain places crushed sea shell. None of this makes sense because every other home has a paved driveway. And pebbles and shells make an unsightly mess.

3. They want to install a fence around the property. The Town only allows chain linked fences -- but they want a wood fence. Or the Town requires fences to be a certain height, and they want a fence that is higher or lower than what is permitted.

4. They want to build a deck. The deck fits fine, but it intrudes on a rear setback line, even though the rear neighbor has a house that is very far from the applicant’s.

5. They have heard that natural ground cover is better for the environment than grass. But the local code requires grass, and allows for no exceptions.

6. They have an historically significant home. Any change that they propose must be authorized by a local Historic Council. Which means -- forget about it!!

Land use regulations must have a rational relationship to whatever it is that they are attempting to accomplish. For example, a regulation that seeks to reduce noise by not allowing sounds beyond a property line above certain decibels might accomplish its goal.

An ordinance that attempts to accomplish this goal by not allowing home owners to have parties that extend beyond 1AM might accomplish this goal.

However, a regulation that prohibits all restaurants from locating in town because some may have a band on Friday nights -- probably goes too far.

Also, local ordinances may only address areas that are within the legitimate scope of local regulation. An ordinance that requires a fence around a swimming pool is likely valid to the extend its keeps children from drowning.

But when the same ordinance specifies the exact kind of fence, ie metal v. wood, it may be going too far. Strange height requirements, without rational basis, may go too far as well.

Local ordinances must be comprehensible so eople know what is and what is not allowed. An ordinance that requires licensed electricians to perform all electrical work might make sense and be valid.

A requirement that all household repairs be by a licensed person may not make sense, because there are no licenses for many kinds of household repairs that are needed.

Many ordinances once made sense but no longer do. Ordinances that prohibit repairs on Sunday may have been deemed legal 60 years ago. However, they likely would not survive a separation of church and state claim today (this is locale dependent).

What should an aggrieved homeowner do? If you feel that the local government is attempting to force an illegal housing related ordinance on you, be calm.

Screaming at local officials will most likely do little more than end you up in jail for a night.

Be diplomatic. Explain the problem that you are having with local officials. The municipal attorney may be a good place to go.

Some times administrative appeals of ordinance interpretation questions are available. Take an appeal if necessary. If the issue is complicated and worth it to you, you may hire an attorney for this.

In the last resort, and only as a last resort, the court system may provide you with relief. This can be costly, and the results may be less than certain.

Plus, the Town may be mad at you for taking it to court. So, this needs to be worth it to you.

Improper regulation exists all over the country. Almost always it is not intentional. Sometimes the regulations are relics of days gone by that are still on the books. Other times, they are the results of poor draftsmanship by a local municipal attorney.

Stay calm, stay friendly, but hold your ground. This is an area where persistence often pays off.