When Zoning and Business Plans Don’t Match
Posted on Friday, August 03, 2018
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You've found the perfect piece of property for your business. After researching the zoning laws, you find the permitted uses don't match up with your plans.
What can you do? There are four options:
Modify your proposal to fit the zoning regulations.
Look for other land where the laws permit your proposed use.
Apply for a variance.
Request that your land be rezoned for your proposed use.
If the first two options work for you, you're in business. But if you have your heart set on a particular property and a particular business plan, then you need to try for a variance or rezoning. Here's how to help overcome obstacles.
Variance: This is a request to use your land in a way that isn't ordinarily allowed.
When applying for a variance, you are asking officials to waive a zoning requirement, but it doesn't involve changing the law. For example, you might get a variance to build a discreet second story in a one-story zone, or to build your structure slightly closer to the road than setback requirements dictate.
To win a variance, you may have to prove three things:
1. Your use of the land will preserve the appearance and ambiance of neighboring properties.
2. The waiver will apply only to your property, not to surrounding properties.
3. The existing restrictions create a serious hardship on you.
The third element is the most important. Hardship is difficult to define and hinges on the nature of the change, the circumstances and general objectives of the area's zoning laws, the effect of the change on adjacent neighbors, and a practical difficulty in using the property as it is zoned.
The process involves written applications, fees and at least one public hearing.
Consult with your attorney when applying for a variance, especially if time is critical or you don't want to risk a rejection.
Rezoning: This involves changing the classification of the land to another use and is more difficult to obtain than a variance.
The zoning code in your area regulates more than buildings. Before erecting signs, make sure you're complying with the law. In one case, a California car wash operator had to dismantle a 26-foot sign in the shape of a hand holding a yellow sponge and a pink Corvette. The sign was good for business but violated local laws because it was too big and too close to the road.
For example, you may want to change a property zoned for retail use to one allowing a restaurant. Or you may want to use agricultural land for light industry.
Your attorney will present your case at public hearings and handle any objections from people opposing your bid. A lawyer is also prepared to address concerns that the change could hurt property values, be incompatible with the uses of nearby areas or harm the planning goals of the local community. In some circumstances, the attorney may work with an architect or other specialist.
Rezoning proceedings also require applications, fees and public hearings.
Remember: You may have to revisit the zoning issue as your business grows or changes. Consult with your attorney if there is a substantial change in the nature of your business, operations are expanded, shut down for several months, or your company stops operating completely.
(For more information, click here to read our previous article, "Investigate Zoning Laws Before Committing to a Location")
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Disclaimer: The information contained in Dulin, Ward & DeWald’s blog is provided for general educational purposes only and should not be construed as financial or legal advice on any subject matter. Before taking any action based on this information, we strongly encourage you to consult competent legal, accounting or other professional advice about your specific situation. Questions on blog posts may be submitted to your DWD representative.