ZONING PART II-by R. Paul Kuhn Esq-by Paul Kuhn, Esq.

In last month’s newsletter we spoke about zoning, what it is and the reasoning behind most zoning ordinances and laws. We also highlighted the reasons why a property owner should be aware of the zoning on their property or one being considered for purchase to assure that the intended use(s) for the property by the owner fit into the requirements of a city or towns zoning ordinances and allowed uses.

This month, we will focus on three additional issues that have to do with zoning. They are zoning variances, changes in zoning and the concept of grandfathering as it may apply to zoning.

VARIANCES: In its basic definition, a variance is an approval to use a property in a manner that is not otherwise allowed by the current zoning in a particular city or town. It basically allows a property owner to use his or her property in such a way that is not allowed by other property owners in the same zoning area. In most cases an applicant for a variance must prove two things. First, that a hardship exist because of the uniqueness of the property and secondly that the granting of such a variance would not have a detrimental effect on the neighborhood or on the overall zoning of such a neighborhood. It should be noted that the word “hardship” does not apply to the person applying for the variances, such as a person’s financial interest, but only has to do with the hardship to comply with the zoning due to the unique nature of the property itself.

Regarding the application procedure, one normally applies for a variance to the Zoning Board of Appeals and it is usually recommended that the individual be represented by a competent Real Estate attorney to properly advocate one’s case to the Board. Your attorney may also rely on hiring various “expert” witnesses to help prove the existence of the hardship and how a variance is the only solution to solve such a hardship.

CHANGES IN ZONING: Applying for a Change of Zoning can be considerably more difficult. If the zoning on a parcel of land is inconsistent with the use the land owner desires, the owner may apply to the local zoning board of their city or town for a change of zoning. By its very nature, a jurisdiction would normally be more reluctant to grant a zoning change in lieu of a variance. The fear of “spot zoning” will often work against the possibility of a change in zoning. By granting a change in zoning, the jurisdiction would be opening up the property for multiple uses that are currently allowed with the “new zoning” rather than the usually more limited allowances of a specific variance. Although each city or town has its own rules and regulations, there is still an application process that should be done with advice of a real estate attorney. In most cases, the cost of applying for a zoning change will be a more expensive investment in legal fees and expert witness fees that in applying for a variance

GRANDFATHERING: A “grandfather” right means that a property owner who built or is using a certain property before zoning laws were put into place, can continue using the property in the same way and without restrictions. These odd properties that don’t fit the zoning around them are often referred to as having a non-conforming use. I am sure you have witnessed a few in your travels.

If someone has been operating an auto repair shop prior to the town enacting zoning regulations or having rezoned the area, that individual has the right to continue using their property as a repair shop, in most circumstances. That owner has what we call “grandfather rights”. If a 3 unit house was built prior to the zoning or rezoning of the area as a “single family zoned neighborhood”, that owner has the right to continue to rent out their units in that building even though it does not conform with the current zoning regulations.

The problem arises when the owner wants to make certain changes that could make them “lose their grandfather rights”. For example if the auto repair shop or the three family home have a fire and has to rebuild, they may not be able to continue asserting their “grandfather rights” since the new construction would most probably have to comply with “current” zoning requirements. The same holds true if the properties are sold. In most cases the new owner can continue with the “grandfather” rights, however, if they want to make a change in the use they could possibly be limited. For example, if the repair shop decides to also become a convenience store in their garage, grandfathering may not apply due to the change in use.

Zoning can be very complicated, and mistakes can be very expensive. Before applying for a variance or zoning change, or if you are contemplating purchasing a property with “grandfather rights”, it is best to seek competent legal representations.

For all of your real estate questions, please feel free to contact my office at your convenience.

Disclaimer

The materials appearing in this newsletter and our website are provided for informational use only, and are in no way intended to constitute legal advice or the opinions of this law firm or any of its attorneys. Transmission or receipt of any information from this newsletter or website does not create an attorney-client relationship, and you should not act or rely upon any information appearing on this website without seeking the advice of an attorney. Moreover, because the law is constantly changing, the materials appearing in this newsletter or website are not guaranteed to be correct, complete, or up-to-date.