Winning the Rezoning
| Publication year | 1982 |
| Pages | 634 |
1982, March, Pg. 634. Winning the Rezoning
Rezoning is the process by which the permitted uses for a particular piece of property are changed, usually to allow a more intensive use, by amendment to the general zoning ordinance or resolution. The rezoning process usually consists of a preliminary presentation to a city or county planning commission, which makes a recommendation as to the rezoning, and then a hearing before the actual zoning authority, the City Council or Board of County Commissioners, followed by a decision granting or denying the rezoning.
Rezoning is a quasi-judicial process,(fn1) much like a trial, where there is always a winner and a loser. Sometimes the rezoning applicant will win by default; i.e. no one will appear in opposition and the zoning authority will grant the rezoning largely as a matter of course. Where the proposed use of the property is anything more intensive than substantial single family dwellings, however, the applicant for rezoning must expect some resistance from nearby residents. It is significant that each of these residents will have an opportunity to vote against the elected official making the rezoning decision at the next election.
The key to successful rezoning applications is preparation. This article discusses winning strategies for obtaining rezonings.
Preparation begins when the potential rezoning applicant decides the permitted uses on the property which is owned or under contract are too restrictive. The first determination is which zoning designation permits the use to which the applicant wants to put the property.(fn2) The city or county planning staff are usually very helpful in advising the applicant on this decision, but their suggestion should be checked independently through legal or planning counsel. This is also a good time to check whether or not there are any other restrictions on the use of the property such as limitations in annexation agreements, restrictive covenants or other documents of record.
It is possible that no particular zoning designation accomplishes the desired result. For example, the building design and site plan for the proposed development may violate area or setback requirements contained in the zoning designation which permits the proposed use. If this is the case, a variance will be required as well as a rezoning. This should be determined at the earliest possible stage of the proceedings.
Also, a special use or permitted use permit may be required for the proposed use. This determination should also be made early.
The initial step of determining what zoning is required is absolutely crucial. It is disturbing to learn, after enduring a lengthy rezoning process, that the applicant can still not put his property to the desired use. The decision as to what zoning is desired will be determinative of future strategy and should be made with great care.
In all but the most minor and non-controversial rezonings, the applicant will have to draw on several areas of expertise to make an effective and successful presentation to the zoning authority. This group of experts may be referred to as the rezoning team. If the attorney is involved early in the process, as he should be, he should assist the applicant in assembling the rezoning team in much the same manner as expert testimony is assembled for a trial.
Usually, the zoning authority wants some idea of what the proposed development will look like. While actual plans and specifications for the structure or structures to be built on the property are seldom necessary, it is advisable to have available at least an artist's conception or elevation drawings of the development. This will normally be prepared by the project architect or engineer.
The site plan invariably must be submitted to the planning staff, the planning commission and the zoning authority itself. The applicant's planners will normally prepare the site plan and, perhaps, the artist's conception discussed above.
Legal counsel should be brought into the rezoning process at its inception. Frequently, applicants do not consult legal counsel until the rezoning is denied and a lawsuit is being considered. By that time, the record is already made and the damage done. The lawyer should advise the applicant as to the propriety of the zoning being sought and the necessity of a variance or permit. Moreover, the lawyer should participate in a review of the zoning ordinance or resolution to determine what items must be proved to justify the rezoning and to make sure that the record made at the rezoning hearing is complete.
Counsel might also participate in the negotiation of any conditions to the rezoning and the presentation at the rezoning hearing. The lawyer's presence carries the implicit threat of litigation should the rezoning be denied, a factor which is not lost on the average zoning authority.
Perhaps more large rezonings are denied because of projected traffic impact than for any other reason. If the proposed development will even arguably have an impact on traffic, a traffic survey and projections should be commissioned early in the rezoning process. If the report reveals that existing streets and highways are insufficient to meet the needs of the area after the development is in place, the applicant should be prepared to resolve these problems.
Residents in the vicinity are generally not represented by counsel and frequently have concerns about the proposed development which can have very little basis in reality. Often, rezonings are denied on the basis of possible increases in crime in the area, concerns over the lighting of commercial developments and projected decreases in the value of adjoining properties.
Generally, the evidence submitted to the zoning authority on these issues takes the form of pure speculation on the part of nearby homeowners. Nonetheless, these homeowners are voters and their unsubstantiated opinion will carry a great deal of weight with the elected officials of the zoning authority. Accordingly, the applicant may want to present expert testimony on one or more of these issues. Such testimony should be prepared as soon as a potential issue is identified.
The preparation of the rezoning application is a relatively ministerial chore. The city or county planning department will usually provide the appropriate form. All holders of any interest in the property to be rezoned should be identified and notified of the proposed rezoning. A title insurance company can be helpful in this regard. It is best if all persons holding an interest in the property execute the application. Some cities feel that execution of the application by all interested parties is required and, while this is seldom the case, it is best to mollify the planning department if possible.
The zoning ordinance or resolution frequently...
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