When planning to purchase real estate, one key consideration is the intended use of the property and the zoning classification. This applies whether the property is vacant or improved, to be used recreationally, for commercial endeavors, or as a residence: zoning is important. This article explores zoning generally and the options available to a property owner in the case where zoning does not permit a desired use. This article is not intended to be a comprehensive guide to zoning; you should contact your local government for specific rules about zoning.
Most local governments, whether it is a city, county or township, have some form of zoning ordinance on their books. It may also be referred to as a land use ordinance or an urban planning ordinance. These ordinances provide a framework for the use and development of real estate within the jurisdiction and, most importantly, a map of zones designating how land may be used in each particular zone. Zones provide restrictions on both the types of permitted uses and various structure or improvement limitations, such as building height, density, and setbacks from property boundary lines. Zoning ordinances are in place to protect both property values and the environment. Zoning encourages the most appropriate use of the land and the best development practices.
Every zoning ordinance is distinct and a buyer must be cognizant of which jurisdiction or jurisdictions the real estate falls under when determining the zoning classification. Never presume that you know the zoning by observing the surrounding property as there may multiple zones interwoven together. In most instances there is one official zoning map located in the zoning office and available for public inspection. It is always a good idea to include a zoning contingency in the offer to purchase. This allows the buyer to cancel the purchase agreement in the event the zoning classification is not as represented by the seller.
Zoning districts and related use restrictions can be complex. In Douglas County, there are many different zone districts including: Residential; Residential-Recreation; Agricultural; Commercial; Industrial; Forestry; Resource Conservation; Shoreland Protection (overlay); Planned Unit Development; and Unincorporated Village District (overlay). In St. Louis County, there are also numerous zone districts including: Forest Agricultural Management; Multiple Use Non-Shoreland; Residential; Non-Shoreland Commercial; Limited Industrial Use; Industrial; Sensitive Areas: Shoreland Mixed Uses; Lake Superior (overlay); and Shoreland Commercial.
Each zone typically has uses permitted by right and uses that may only be allowed with a conditional use permit. (In Douglas County, this is referred to as a conditional permit.)
Relief from Zoning
At times the zoning classification on its face does not permit a property owner to use the property as desired. However, the unpermitted use may be allowed upon request by the property owner. Typically, there are three possible solutions to consider: (i) a conditional use permit, or CUP; (ii) a variance; or (iii) a zone change or re-classification.
As stated above, most zone ordinances include a list of certain conditionally permitted uses in each zone. For example, consider the Residential zone district in St. Louis County. The principal use within the zone is residential and the uses permitted by right include single family dwellings and home occupations. Home businesses, group homes, and mobile home parks are just some of the uses that may be authorized within the residential zone by conditional use permit. This allows for the zone to remain primarily residential and gives the county control over non-residential uses to minimize adverse impact to the zone.
The property owner must make an application to the zoning committee or planning commission asking for relief from the zone district to allow for a permitted use within that zone. A CUP application is available at the local zoning office. The zoning director or staff reviews the application for sufficiency and completeness. Once accepted, the planning commission schedules a public hearing on the CUP application. A decision is made by the commission following the hearing. If granted, the CUP may include certain prerequisites or conditions. A certified copy of the CUP is recorded in the real estate records.
The purpose of a CUP is to control the number, area, size, and location of that specially permitted use within the zone district. By making an application and presenting a case for the CUP, the zoning officials have the ability to review the surrounding properties, consider the zone district as a whole, and determine whether granting the conditional use will be compatible with and appropriate for the neighborhood. To prevail, the landowner has the burden to prove that the requested use satisfies the standards set in the zoning ordinance. Appeals from the decision are made to the board of adjustment.
A variance from the zoning ordinance is any modification or relief from the ordinance due to exceptional circumstances, without which the property owner would suffer hardship. In most jurisdictions, variances are reviewed and recommendations made by the zoning office to the board of adjustment. In some jurisdictions, the zoning commission makes the recommendation before the application is sent to the board of adjustment for a final decision.
In St. Louis County, and in general, variances must meet three criteria: (i) the proposed use must conform to the land use plan; (ii) the proposed use must be compatible with the existing neighborhood; and (iii) the location and character of the proposed use is considered consistent with desirable patterns of development for the area.
Variances may be utilized if the parcel is a strange shape, creating challenges in meeting the setbacks and difficult limitations to build on the property or to expand existing structures. There may also be difficulties in construction due to the topography. The property owner has the burden of proof to show that there are no reasonable options available to use or develop the property and that the owner will suffer a hardship if the variance is not granted. Hardship cannot be claimed simply because construction is more expensive or inconvenient. Hardship means that the property cannot be put to any reasonable use if the zoning classification is enforced; the plight of the owner is due to circumstances not created by the owner; and the proposed variance to the zone would not alter the character of the area.
The zone change or re-classification is probably the least commonly used of the three solutions available. In St. Louis County, an amendment to the zoning map can be initiated by the county board, the planning, commission, the applicable town board, or the property owner. The planning commission conducts at least one public hearing – notice is given by publication and in writing to all towns and municipalities within the county, plus to all surrounding property owners – and a report is made to the county board. The county board then makes a resolution to adopt the proposed amendment, or elects not to change the zone. Once an amendment has been considered by the county board, that property cannot be reconsidered for zone changes for at least one year.
In summary, zoning is an incredibly important aspect of real estate ownership and use. Because of its complexity and specificity, it is advisable to make a thorough investigation into the applicable zoning before acquiring property. The resources available in Douglas and St. Louis counties are abundant and with the advice of attorneys and zoning professionals, you can be confident in your plans for the property before you complete the purchase.
By: Dehlia Seim
Published in Business North, March 2013