BFV Perspectives, Commercial Real Estate, Corporate Matters, | Dec 07, 2018

Lessons From the Field: 5 Considerations When Seeking Zoning Approval

As a real estate attorney and former member of the City of Cleveland Board of Zoning Appeals, I have seen transactions fail due to the parties’ failure to consider and resolve zoning matters at the outset. The transaction progresses and then, suddenly, a third party, such as a lender, requires verification that the property is zoned for its intended purposes, but no one can produce it. 

The easiest way to avoid this scenario is to be proactive – confirm the zoning as early as possible and promptly deal with any issues. 

Occasionally, dealing with zoning issues requires appearing before a municipal body, like a board of zoning appeals or a planning commission. If your project requires that you go before a municipal body for zoning approval, consider the following prior to the hearing:

  1. Viable Alternatives. Try to limit the project’s exposure to municipal processes. It is often in the best interest of all parties involved to avoid having projects subjected to municipal processes as they can be lengthy, costly and unpredictable. If there is a viable alternative that allows for the project to meet the requirements of the applicable municipal regulations, that alternative should be chosen. If there are no viable alternatives for compliance, read on.
  2. Be Timely. This should go without saying, but timely applying for zoning approval is extremely important. There are submission deadlines in many if not all municipalities that can easily be found by either searching their website or calling the appropriate office. The deadlines are in place largely to ensure that proper advertising and notices can be delivered to surrounding neighbors to allow them an opportunity to be heard. Missing a deadline by even one day has the potential to add an additional 30 to 60 days to the approval timeline.   
  3. Check the Pulse. Once you’ve timely submitted your application, check the pulse of the neighborhood where the property is located and attempt to gain the support of the community. Reach out to any neighborhood organizations such as community groups or block clubs. Contact locally elected officials such as councilpersons or other representatives. Lastly, communicate with your immediately adjacent neighbors to explain the project and gain their support. If possible, bring those who support the project to the hearing to speak on its behalf. If they are unavailable, try to get their support in writing and submit the writings as a part of the presentation package. 
  4. Know the Rules. It is critically important to familiarize yourself with the rules that will govern the hearing that will decide the fate of your project. This means understanding how the hearing will proceed before arriving as there may be, among other things, time limits on presentations and rules governing community members’ ability to speak either for or against your project. Technical surprises are largely avoidable if you know and understand the rules of procedure beforehand.
  5. Be Clear, Concise and Flexible. Nothing will lose the attention of a municipal board quicker than a long and convoluted presentation. The key to this point is preparation. The more prepared you are the better you will be able to summarize the key points and highlight areas that need the most attention. When your presentation is clear and concise, the board will be more likely to fully understand your request and offer alternative recommendations. This is where it is incumbent on you to be flexible as boards often are in the best position to develop alternatives that you may have been unable to think of. Be willing to accept the recommendations of the board, within reason, if it means the project will be approved.

Based on my experience from both sides of the desk, the likelihood of gaining zoning approval is increased by following the above considerations. Although most municipalities do not require that an applicant have an attorney, having experienced counsel on your side may be beneficial.  A reputable zoning and land-use attorney can help guide you through what can be a complex process and help increase your chances of success.

Authored by Henry Bailey

BFV Perspectives, Commercial Real Estate, Corporate Matters, | Dec 07, 2018