Can Zoning Be Changed to Allow Your Use of Vacant Land?

When a special use permit, variance, or even change of zoning might allow you to build the structure you want on your property.

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What if you own a really nice piece of land, but the use you have in mind for it -- a house, a store, or a small farm, perhaps -- may be prohibited by its zoning? Don’t give up on your dreams for the land just yet. You may be able to obtain either a zoning variance or a special use permit, or even change the zoning designation itself, to allow you to use the land for the purpose you would like.

Who’s in Charge of Your Zoning

Property zoning is typically governed by local county or city laws (also sometimes known as ordinances), which divide land into different areas, or “zones.” The zoning of a piece of land determines how you can use it.

For example, an area zoned “residential” might allow only houses to be built on the land, while an area zoned “commercial” might allow retail stores and other businesses there. Zoning designations, and the uses allowed by each designation, vary depending on the location.

How to Find Out What Your Land Is Zoned For

If you have any reason to believe that your intended use of your property might be prohibited by its zoning, the first thing to do is to obtain a copy of the zoning map, as well as all ordinances applicable to the property.

The local government office dealing with land use (most likely the local planning, zoning, or building department) can provide you with a copy of the zoning map and ordinances.

Check the property’s zoning designation on the map, and then refer to the zoning ordinances, to see exactly what uses are permitted under that designation. There might actually be no restrictions in the zone’s requirements that would prohibit your intended use. For example, if the property is in a “rural” or “agricultural” zone, the zoning regulations might allow an owner to run a small farm store, as well as to grow crops on the land.

Some localities use a zoning system commonly referred to as “cumulative” zoning. This means that not only is the use specified in the designated zone permitted, but any use that is rated as less impactful on the land is also okay. For example, under such a zoning scheme, not only might business uses in an area zoned “commercial” be allowed, there might be no prohibition on building a residence, because it is considered a less impactful land use.

If Your Use Is Prohibited, Can You Adjust Your Plans?

If the applicable zoning does prohibit your intended use, first determine whether you can comply with the zoning by tweaking your plans a bit. For example, if you want to build a three-story home, but the property’s zoning prohibits homes higher than two stories, you might do better to change the design to fit within a two-story structure rather than attempting to get a zoning change or variance.

Zoning Modifications Commonly Available

If you can’t tweak your plans to accommodate the zoning, the next possibility is to request a zoning change or exception to allow your use.

Study the provisions of the zoning ordinances to determine whether they offer the opportunity to apply for a zoning exception or change. If you need help interpreting the ordinances, consult an experienced attorney in your area.

Zoning Variances and Use Permits

It’s typically easier to obtain a zoning exception than a zoning change. Exceptions are often available in the form of a special use permit or a zoning variance.

  • use permit (sometimes referred to as a “special” or “conditional” use permit) allows an owner to use the land in a way not normally permitted under the zoning. Such permits typically impose a number of conditions on the allowed use. Use permits are sometimes available to “grandfather” in a use that was permitted until the zoning changed. For example, if an owner purchased a piece of land in a commercial zone to operate a small business, and later the zoning was changed to residential, the business use might be allowed to continue under a special use permit. In this situation, conditions put on the use might limit the hours of operation or limit the number of parking spaces. But don't assume that if you've bought a property being used for something unusual that you can continue to do the same: Use permits will, in most cases, expire upon any sale or transfer of the land.
  • zoning variance basically grants you permission to use the land in a way that would normally be in violation of the local zoning. A variance request is normally granted only if the owner can show that a hardship is created due to special conditions on the land that make it too difficult to comply with the zoning requirements. For example, if steep slopes on a property leave only a small portion suitable for a residence, and the setbacks required by zoning regulations intrude onto that buildable portion so far that only a small shed could fit, the owner might obtain a variance to build within the setback area.

Changing the Zoning

Changing a property’s zoning is rarely easy. Any rezoning must be consistent with the local master land use plan.

Get a copy of the plan (from the zoning or planning office) and study it. Determine whether your desired use is consistent with the goals of the master plan. You must also carefully follow all procedures within the zoning ordinances for requesting a rezoning. To increase your chance of a successful rezoning request, enlist the help of an experienced attorney familiar with the procedures and politics in the area.

Procedures for Requesting a Zoning Exception or Change

Procedures for requesting a zoning exception or change depend on the local ordinances. You will probably need to file a written application, pay a specified fee, and present your case at a hearing with the zoning board or planning commission.

The hearing is critical; to be successful, you must present the specifics of your request and compelling reasons for granting it.

Get the Neighbors’ Support

Before you can obtain a variance or change in zoning, you will likely have to show that your intended use will not adversely affect any neighbors. Even if this is not an official requirement, getting the neighbors on board with your plans can help avoid conflicts later.

Meet with your neighbors and explain your plans, making sure to point out why they will not result in any harm. For example, if you want to operate a farm stand on your rural property, the neighbors might worry about increased traffic and noise. Perhaps you can point out that the location of the driveway and parking for the stand is far from their homes, or that the hours open will be minimal.

Hopefully, you can quell any objections, and possibly even rouse support for your plans. If possible, get written statements of support from your neighbors to bring to the zoning hearing, or convince them to attend the hearing with you.

Although tackling zoning issues is not easy, your hard work will have been worth it if you can obtain a zoning change or exception. Then you can relax, and enjoy using your property in the way you intended.

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