Business Law 101 / ZONING

By Albert L. Kelley, Esq.

Public zoning is the method by which local governments control the development of their communities. Zoning laws have the same effect as restrictive covenants, but rather than coming from a homeowners association or developer, they are issued by local City and County governments.

Zoning can have many purposes. It can be used to restrict growth in a certain area; to reduce density; to protect natural resources; to control the design of neighborhoods, or to protect the safety and rights of residents. So long as a zoning ordinance is properly drafted and has the public health, safety or welfare as it’s foremost reason, it will likely be valid.

Zoning is a legal infringement on a person’s use of property. In some cases zoning rules can prevent a person from using a property in the manner they intend. For example, a person may purchase land in a commercial area intending to open a warehouse and then find that the land is zoned for retail stores only. Or they may purchase land in a residential area to open an apartment complex but find that the property is zoned for single family houses only. These zoning regulations would prevent the owner from using the land in a way that they intended. This is not to say that the person cannot use the property at all, and it does not mean that the government has any obligation to pay the property owner for their land. A zoning restriction that limits the use of the land is not considered a “taking” as defined by the law. In a “taking”, the government prevents a property owner from any feasible use of their property. Under the “taking” rules, the government must reimburse the property owner for the value of their land. With a mere zoning restriction, the owner simply needs to find another use for the land.

When an owner’s plans conflict with the zoning, they can often apply for a variance to those rules. A variance allows a property owner to use the land in a manner that is inconsistent with the zoning ordinance. Generally, before a variance is granted the agency asks for input from the neighboring property owners. If the neighbors object to the variance, there may be reluctance by the agency to grant the variance. Often there are special considerations that the agency must look at before granting a variance. For example, to apply for a variance, the governing body usually requires that 1) there are special circumstances peculiar to the property, 2) that the conditions were not created by the applicant, 3) that granting the variance will not give the property owner any special privilege that has been denied to others, 4) that a literal interpretation of the regulations would impose an unnecessary and undue hardship on the property owner, 5) that the variance is the minimum necessary to allow the use of the property, 6) that the variance will not be injurious to the public, 7) and that the non-conforming uses of neighboring properties is not the basis of the variance.

If the zoning ordinance changes so that a property owner’s existing use is now in violation of the new code, it is deemed a “non-conforming use”. Generally, the non-conforming use will be allowed to continue, as it will be grandfathered in. However, if the non-conforming use ceases, any future use must comply with the new code; you cannot later return to the non-conforming use.

Al Kelley is a Florida business law attorney located in Key West and previously taught business law, personnel law and labor law at St. Leo University. He is also the author of “Basics of Business Law” and “Basics of Florida’s Small Claims Court” (Absolutely Amazing e-Books). This article is being offered as a public service and is not intended to provide specific legal advice. If you have any questions about legal issues, you should confer with a licensed Florida attorney

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