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COMMERCIAL REAL ESTATE

Dealing with Zoning Problems

You've found the perfect spot -- except that it lacks the zoning you need. But you may be able to work the situation to your favor.
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You've found a spot that's perfect -- except that it lacks the zoning you need. But you may be able towork the situation to your favor.

Once you've found a location that meets the needs of your business, it can be quite a disappointment todiscover that it may not be properly zoned for what you want to do there. Fortunately, an unfavorablezoning situation doesn't necessarily mean you're out of luck. There's a certain amount of administrativediscretion under building codes and zoning ordinances -- enough, certainly, that it can help to havethe administrators on your side. Here are some ideas for accomplishing this.

Seek Support from the Business Community

If you employ local people and will contribute positively to the economy, it may pay to make contact withcity or county business development officials or even the chamber of commerce. If they see your businessas an asset and don't want you to locate in the next city, they may be helpful in steering you through thebuilding and safety department and may even advocate on your behalf before zoning and planning officials.

Trade associations and merchants' associations may also come to your aid if you need building and safetyofficials to decide in your favor in an area in which they have some administrative discretion. Finally,contractors, lawyers, and others who are familiar with the system and the personalities often know how toget things done and can be helpful to you.

Appealing an Adverse Ruling

The decision of a zoning or building official isn't necessarily final. If you get an adverse decision from thelocal planning commission, for example, you may be able to have a board of zoning adjustment or boardof appeals interpret the zoning ordinance in a way that's favorable to you. Alternatively, you may be ableto obtain a variance (a special exception to a zoning law) if a strict interpretation of the ordinance causesa hardship. In some cases, you can get a conditional use permit, which lets you use the property in questionfor your kind of business as long as you meet certain conditions set down by the administrative panel.

In dealing with administrators and especially with appeals boards, it's important to have the support ofneighbors and others in your community. A favorable petition signed by most other businesses in yourimmediate area or oral expressions of support from half a dozen neighbors can make the differencebetween success and failure at an administrative hearing.

Conversely, if objectors are numerous andadamant, you may not get what you're after. So if you sense opposition developing from those living ordoing business nearby, try to resolve your differences before you get to a public hearing -- even if it meansyou must make compromises on the details of your proposal.

Going to Court

Every day hundreds, if not thousands, of interpretations and applications of building and zoning laws areworked out through negotiation with administrators and through administrative appeals. But if thesechannels fail, it's possible in many instances to go to court. This can be very expensive andtime consuming. What good is it if you win your battle for a permit to remodel your premises but youwaste two years getting to that point? Still, there are times when what you're seeking is so valuable andyour chances of success are so great that you can afford both the time and money to get a definitive rulingfrom the courts. And in some instances, you can get a court to consider your dispute fairly quickly. If, forexample, you submitted plans to the city that complied with all building and safety codes, and the buildingofficial refused to issue a building permit unless you agreed to put in some additional improvements that youbelieve are not required by the ordinance, you could quickly go to court asking for an order of"mandamus" based on the fact that the administrator wasn't following the law.

Before you consider court action, however, get as much information as you can about the cost of litigation,how long it will take (you can win in the court trial, but the city might decide to appeal), and thelikelihood of your ultimate success. This is a specialized corner of the law, so you're going to needsomeone who's had experience in the field -- and there may not be that many to choose from in any givenlocation. Look for a lawyer who has represented a similar business in a dispute with the city or someonewho formerly worked as a city attorney and knows all the ins and outs of the local ordinances.

Example: How Strategic Planning Pays Off

Shelby, owner of Small World Books, is delighted to learn that the drugstore next door is going out of business. He immediately seeks to buy or sign a long-term lease for the building so that he can expand his profitable business. The future looks rosy.

Not so fast. Shelby learns that for his new business to use the building, he'll have to supply eight parking spaces to get a permit. Doing this at an affordable price in his desperately crowded neighborhood is impossible.

Instead of giving up, Shelby asks the city planning commission for a variance to waive the parking spaces rule. A public hearing is scheduled. Shelby knows he has to put on a persuasive case, so he:

  • Calls hundreds of local writers, publishers, critics, educators, and book lovers to pack the hearing and testify that an expanded bookstore will be a great community resource
  • Documents the prohibitive cost of buying or leasing the required parking spaces
  • Offers to validate at a parking at a lot four blocks away, just outside the congested area
  • Hires an architect, who determines that a nearby public garage can accommodate 20 more cars if the parking spaces are striped differently
  • Offers to pay for the restriping

Shelby gets the variance.

Copyright © 2000 Nolo.com Inc.

Last updated: Nov 1, 2000




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