My Property Zoning is “Wrong”?

What If the Property I Own Has the “Wrong” Zoning?

Question: I own a property.  The current zoning will not let me do what I want to do with it.  Is there any way of changing the property zoning?

Answer: The short answer is, “Yes.”  Communities use zoning to promote harmonious development patterns and keep incompatible land uses away from each other.  As times change, however, so do our communities.  Sometimes zoning must be amended, and the law allows for this.

That said, changing zoning is a very involved process.  And like the smart mechanic who first asks the person whose car won’t start, “Does it have any gas in it?,” a smart attorney will first determine if there is an easier solution that will allow the client to achieve his or her goals.  For example, most development codes provide for special use permits and/or conditional review, either of which may allow additional uses in a given zoning district.  Also, the doctrine of “nonconforming use” provides that, in some cases, continuing a use that is contrary to zoning may be legal.  And while a variance can never be used to permit a change in use (there is no such thing as a “zoning variance”), sometimes a variance allowing greater intensity within a permitted use will provide the needed relief.

If none of the alternatives solves the problem, then the course of action is to pursue a zoning change.  This can be done through amendment of the zoning map, amendment of the zoning text, or both.  A zoning map amendment changes the designation of a parcel from one zone district to another – for example, from “single family residential” to “multifamily.”  A zoning text amendment changes the definition of a zone district – for example, by changing the legal meaning of “multifamily” from “buildings with three or more” to “buildings with four or more” residential units.   Map amendments are of limited scope in that they only change the zoning on the affected parcel or parcels.  Text amendments have broader effect, in that they change the rules for every parcel in the affected zoning classification or district across the community.  Government may be more inclined to approve one kind of zoning change or the other, depending on a variety of factors.

Because both the map of the zoning districts and the text in the zoning code are written into law, changing zoning means changing the law.  Probably the best case scenario for a person who wants a zoning change would be if local land use planners see the proposed change as so well-aligned with the public interest that they propose it themselves.  In the vast majority of cases, however, the person wanting the amendment must apply for it and follow that application through a lengthy process.  This typically requires public hearings at both the planning commission and the elected body (whether a county board of commissioners or a city council).  In many communities, the elected body will only hear zoning change applications periodically, such as semi-yearly or yearly.

Sometimes, where a proposed zoning change lacks conformity with the community’s comprehensive plan, a plan amendment will be required as well.  Whether a zoning change will trigger the requirement for a comprehensive plan amendment depends on local ordinances.  Some communities treat their comprehensive plan as an advisory document, while others consider their plan to be a legal framework that must be kept in strict conformity with their code.

Putting aside issues like comprehensive plan compliance, what are some of the usual procedures for getting a zoning amendment?  An applicant would first go to a pre-application conference with planning staff to discuss the proposed change and get a sense of whether staff would support it.  Second, he or she would submit the application, complete with all required documentation and fees.  Often, this documentation is quite comprehensive and includes plat maps, traffic studies, infrastructure analyses, and other information.  Third, the applicant would provide public notice of the proposed change.

Once the application is properly submitted, staff will prepare a report recommending approval or denial, and it will present that report to the planning board at a public hearing.  The planning board will then vote to recommend approval or denial to the elected body.  At the next meeting of the elected body, the members will consider the recommendations of both staff and the planning board and vote on the proposed change.

What does government consider when reviewing a proposed zoning change?  It looks at the community’s comprehensive plan and its zoning and development codes to determine if the change is in conformity with them.  It also considers factors such as whether the proposed amendment:

  • is justified by changes in the character of the area,
  • fulfills a community need that has arisen since the original zoning was put in place,
  • better reflects the comprehensive plan than does the current zoning,
  • is warranted because the existing zoning resulted from an error or mistake or did not take environmental factors into consideration,
  • can be supported by public infrastructure (including water, schools, roads, sewerage, flood control facilities, etc.), or
  • will produce negative impacts on surrounding land uses and/or the environment.

If the vote is in favor, then the change will be effected.  In some cases, a vote in favor requires a “second reading,” and this means at least one additional public hearing and another month of waiting before the amendment can be written into law.  If the vote is against, then the applicant may return with a different proposal, wait a given period of time (usually a year) and return with the same proposed change, or sue the city or county in district court.

Harmon Zuckerman is an attorney with Frascona, Joiner, Goodman and Greenstein, P.C. His practice areas include Land Use, Water Law, Real Estate and Civil Litigation. Contact Harmon Zuckerman.

Disclaimer — Content is general information only. Information is not provided as advice for a specific matter, nor does its publication create an attorney-client relationship. Laws vary from one state to another. For legal advice on a specific matter, consult an attorney.

HARMON W. ZUCKERMAN