When people think of real estate law, they often think of buying and selling real estate. One of the most important areas of real estate law, and one that many clients ask us about, is zoning. If you live in the United States, you may be more familiar with the word “zoning” than the word “zoning law,” so I will use the word zoning in this column.
If you want to build a store in an area zoned for residential use to increase property value, or if you want to change the height or structure of a building, you will be legally restricted if you do not comply with local zoning regulations. Many people who contact us with zoning questions say they didn’t even know zoning existed until they ran into a problem. However, most people learn about zoning after they’ve applied for a permit for a renovation and been denied, or after they’ve tried to change the use of a building and been denied. However, it’s not a simple area to navigate, as it can be time-consuming, with different standards and procedures in different counties, as well as political aspects such as nepotism and conflicts of interest between business owners and local residents.
Zoning is determined by your local Municipal Land Use Law. If you want to change a designated zoning use, you’ll need to go through a rezoning review process, which is overseen by your local Zoning Board. Zoning boards meet regularly, about once a month, and applicants seeking a change submit a rezoning review application to the board for consideration.
The application must include an explanation of why the existing zoning needs to be changed, what kind of change you want to make, details of the construction plans if any, and convincing documentation that the rezoning will not be detrimental to the neighborhood. The law is very specific about the scale of the maps that must be included and what must be included, so it’s important to check these things out when preparing your application. If you’re applying as a pro se applicant without an attorney, it’s not uncommon for your application to be denied because these documents don’t meet the requirements or don’t contain enough information to convince the Board. All rejected applications are on record, and the cost of each application is not insignificant, so lawyers and judges generally recommend preparing for approval the first time rather than reapplying.
Once the application is received, the Board will first review the application to make sure it meets all the legal requirements. This basic review varies from county to county but takes about one to two months. If it is determined that the basic conditions are met, a hearing date is set. Once the hearing date is set, the applicant must notify all those who may be affected by the rezoning of the hearing date and the content of the hearing.
The hearing itself is more liberal than a trial or other legal proceeding, but the burden of persuading the Board and presenting evidence rests with the applicant for the rezoning. A very high level of persuasion is required for the Board to grant a variance. For example, the change in zoning must not be detrimental to the public interest and must not have an unintended effect on the existing zoning purpose or configuration of the entire area. Therefore, while the hearing is free from formalities, it can be said to require as much careful preparation as a trial.
When a company applies for a rezoning, most counties require the appointment of an attorney. On the other hand, if you’re an individual, the county may not require you to have an attorney, but it’s recommended due to the difficulty and complexity of the process.
By the time a zoning issue arises, many people have already spent a lot of money or have already entered into contracts for construction and are financially devastated by the loss of those contracts. Therefore, it is wise to look into zoning regulations and resolve them before doing any construction, even on your own land.
If you have any questions about zoning, please feel free to contact us at mail@songlawfirm.com. We’ll include them in our next column.