Turning Rezoning Issues from a Mountain into a Molehill

The following article was featured in the “Law and Your Business” section of the Triad Business Journal on August 15, 2014. To view a downloadable version of this article, please click here:

Turning Rezoning Issues from a Mountain into a Molehill (PDF)

Rezoning any property for a new or expanded class of uses can be a complex and sometimes contentious process to navigate.  But if you stay calm and focused and surround yourself with a good team, the hurdles can be surmountable.

In one of my more recent rezoning cases, for example, we took a piece of land in Greensboro that was zoned for an office park and had it rezoned for use by an automobile dealership.  This particular tract of land overlooks Interstate 40 where a gazillion cars pass by every day, making it ideal for a business that stores inventory at curbside.  When Peters Auto Mall of Greensboro opens on the site early next year, go see my friend Kevin Peters and tell him I sent you.  You may not get a discount for mentioning my name, but you will meet one of the world’s truly nice people and a local success story.  Kevin spoke on his own behalf at the rezoning hearing with minimal coaching from me, and he carried the day.  It was a win for him – and for the city.

While this article is not intended to be a step-by-step guide to rezoning, it will give you a feel for the overarching process Kevin faced and what you can expect to encounter.  You’ll find it is part administrative paperwork, part negotiation and part court-like hearing.

The administrative piece is relatively straightforward—mostly title work, filling out applications and completing traffic impact studies.  As long as you follow the instructions and have the right people on your team, it’s relatively straightforward.

One point of caution at the administrative stage, be sure to have someone competent review the title to the property.  Rezoning can change the permitted uses under local zoning ordinances, but it is ineffective against any private restrictions that may be out there.  For example, rezoning a property for commercial use under a municipal zoning ordinance does little good if an old restrictive covenant limits the property to single-family homes; in theory all the rezoning has done is to render the property unusable for any purpose.

The negotiation stage of a rezoning generally takes the form of one or more neighborhood meetings.  These gatherings can be daunting for the uninitiated, but personally, I’m a fan.  Any opposition to your rezoning plans will take root and grow from the ranks of your neighbors, so a face-to-face meeting presents a chance to listen and to get a sense of whether there will be passionate opposition to the rezoning or support for your plans.  It is that passionate opposition that leads people to show up at a zoning commission meeting with an ax to grind and ready to take advantage of their 15 minutes in front of a microphone to do it.

If you are sensing opposition to your rezoning proposal, I recommend meeting one-on-one with your neighbors to offer tailored solutions. Often these are in the form of zoning conditions limiting how the property can be used, while still permitting that all-important new use you have been dreaming of.  (Think additional landscaping or fencing requirements for the property, changing access points to avoid residential streets, etc.)  You would be surprised what can turn the tide of the opposition in your favor.

I also think the personal touch can make a big difference.  The neighbors like to talk to the property owner, and so do the zoning commission members.  It’s harder for them to connect with (and accordingly vote for) a paid mouthpiece.  That said, there are some wonderful professionals who can be a great resource, especially for larger rezoning cases.  They can help garner neighborhood support and flush out any opposition.

Finally there is the zoning commission meeting, which I liken to a court hearing.  This is where all your hard work either pays off or you go home empty handed, depending on the vote of the local citizens who make up the zoning commission.  The idea is for commission members to hear all the facts of a given case and then render a decision. The municipality’s zoning staff, those on your side and any opposition all get a turn at the podium with a microphone and an overhead projector.  If the vote goes your way, congratulations are handed out all around.  If your request is denied, you have the right to appeal the decision to the City Council or, if it’s really not your day, to the court system.  I do not advise my clients to waste time appealing a rezoning decision to the courts.  The courts give broad deference to the legislative decision maker in these cases and even the most egregious rezoning decisions have been upheld on appeal.

In closing, there can be a lot of complexities to any rezoning case.  Certain neighbors may have the right to file protest petitions and throw up other roadblocks.  These are not necessarily insurmountable hurdles; I have taken a rezoning case all the way to the City Council and won.  Stay calm and focused, build a good team and don’t be afraid to pursue a rezoning of your property.

Elizabeth J. Zook is a director with Carruthers & Roth, P.A. and focuses her commercial real estate practice on both transactional and land use/zoning matters. She may be reached at 336.478.1110 or ejz@crlaw.com

 

 

 

For media inquiries, please contact: Erin Molinaro | ekm@crlaw.com