How To Get a Zoning Change or Exception

Zoning refers to the process of dividing a municipality into residential, commercial, and industrial areas. Within each zone type, there are restrictions on what a property owner may do. For example, residential zoning may limit the acceptable height of an apartment building.

Local government zoning boards establish and enforce local zoning ordinances. For more information about getting an exception to your local zoning laws, talk to a land use and zoning law attorney.

Real Estate and Zoning Laws

Getting a zoning change is “like anything else you want from the government,” says Texas eminent domain attorney Charles B. McFarland. “You go through the proper channels by filing an application or request, and the governing body considers it. It’s important to understand that zoning is the municipality’s mechanism for controlling land use. As such, zoning laws typically involve a lot of long-term planning.”

Land use and zoning regulations may “feel constraining for a landowner,” says McFarland, “but that doesn’t mean [the planning] is out of bounds” or that property owners are necessarily entitled to compensation for the impacts of zoning regulations on their property. However, when current zoning laws don’t allow property owners or developers to use their land the way they want, they can apply to rezone the area.

A good lawyer helps. “It would be difficult [to rezone property] without legal help,” says McFarland. “Obviously, everything depends on the economies of scale involved and the value of what you’re trying to do.”

“Getting zoning relief is often an elongated, expensive, and typically discretionary process,” says Steven M. Elrod, a land use and zoning attorney in Chicago. “If the proposed use requires change, a careful analysis of the zoning code frequently provides not only a road map to the relief requested, but some rewards and hidden nuggets that a zoning lawyer would be able to find.”

Is Your Use Allowed Under Current Zoning?

Land use laws change at the state and local levels — though various federal regulations are also applicable. Zoning districts allow certain uses of property while prohibiting other uses. Having land divided into zones gives uniformity and order to the area.

Before taking steps to change the zoning rules, you should understand if your use of the property fits in with current zoning. You don’t have to do anything if your use complies with current land use regulations. If your usage is out of step with the current zoning, you will need an exception for nonconforming use or to change the zoning.

Your first step is to get your municipality’s zoning map and figure out the zoning rules that apply to your property and the surrounding area. Typical zoning districts include:

• Residential use area for single-family and multifamily residences, apartments, etc.
• Industrial use areas for factories and manufacturing
• Commercial use areas for businesses, retailers, etc.

Can You Adjust Your Use to Fit Current Zoning Laws?

If your use of your property conflicts with current zoning rules, consider whether you can adjust your usage to comply with existing laws. Every situation is different, and sometimes it’s impossible to reconcile what you want to do with your land with what the local government says you can do.

In other situations, however, you may be able to work out a solution by adjusting your use.

Get an Exception: Use Permits and Zoning Variances

Consider getting an exception for your nonconforming use. Getting a zoning exception varies by locality but generally involves filing an application and paying a filing fee with the local zoning board. The board may call a zoning hearing to review the application. There are a few ways to do this:

1. Variance

Generally, a variance is a waiver that would permit relatively small or insignificant deviations from zoning rules when it would burden the property owner to follow the current rules. For example, you might get a variance for a nonconforming driveway or setback. Variances don’t allow uses of land that are totally contrary to the zoning district.

2. Conditional Use Permit

These permits allow uses of property that conflict with current zoning laws. The main difference between variances and conditional use permits is their scope. Conditional use permits are generally broader than variances in the deviations they allow. They also allow uses that are not included in current zoning regulations or that are contrary to current zoning regulations.

3. Nonconforming Use Permit

Suppose a property owner was already using their property in a way that conflicts with new zoning laws. The property owner can apply for a nonconforming use permit, which allows them to continue using their land as they had before the new zoning laws.

4. Special Use Permits

A special use is one that requires permission from the zoning authority but stops short of actually rezoning the property. A special use is one that would have a significant impact on the surrounding neighborhood and does not qualify as a use allowed by right.

5. Administrative Modifications

These refer to requests for relief from certain zoning requirements that do not rise to the level of a variance. For example, if the owner of a building wanted to seek a reduction in the number of parking spaces required by a local zoning ordinance, they could request an administrative modification.

Change the Zoning Laws

If an exception won’t work, you may want to take steps to change the zoning law itself. An important preliminary step in the process of getting a zoning change is to speak with the owners of surrounding properties. Their input is necessary when the governing authorities consider your proposed zoning changes. If you can get the support of neighboring property owners, it will help your case.

The process for changing zoning laws varies from jurisdiction to jurisdiction. The following steps, however, are fairly standard:

• Submit a rezoning request. Complete a rezoning application requesting the zoning classification change, including why you want the change, along with data about the area, zoning impacts, etc.
• Review. The governing authority will review your application and possibly request additional information.
• Public hearing. The local planning commission will discuss the proposed changes, ask questions, and get community input on the plan review.
• Decision. If the planning commission approves your proposed changes, it will recommend them to the locality’s legislative body. There will likely be another round of public hearings to consider the plan before the governing body votes on it.

Rezoning property is complex and time-consuming. “Many land use lawyers do a lot of work with developers dealing with a city or municipality’s planning department or city council trying to get a development approved,” says McFarland.

Find a Land Use and Zoning Attorney

“A land use lawyer can help a landowner or developer in one of two ways,” Elrod says. “One is with compliance with existing codes. The other reason is to take advantage of incentives, entitlements, or zoning changes that could enhance the value of the property and make development easier.”

To get the most out of a consultation, ask informed questions such as:

• What are your attorney’s fees and billing options?
• What is your experience with property zoning issues?
• What is the zoning designation of my area?
• Am I in compliance with current zoning requirements?
• Should I get a zoning exception or try to change the zoning laws?
• How likely is success in rezoning?

Once you have met with a lawyer and gotten your questions answered, you can begin an attorney-client relationship. Look for a land use & zoning lawyer in the Super Lawyers directory.