Seek Zoning and Land Use Counsel Before Signing Your Name on the Line

Posted by Lisa S. Morchower on

Do you remember when your mom used to say “look both ways before you cross the street”?  Well, this age-old adage applies to purchasing real estate, whether the purchase is for land alone or if the purchase includes an existing building or other structure. Before you sign your name on that black line, you should take a good look around in all directions, understand the property, contemplate unforeseen circumstances, and proceed with caution.  The most logical way to take these steps is to get to know the property before you buy it!  You must do a thorough investigation of the history of the property and the properties surrounding it, and a thorough review of the zoning laws regarding the specific property you want to buy before you agree to any purchase.  These laws, found in local government ordinances and regulations, govern how the land can be used and set out restrictions for construction on the property.  I cannot tell you how many times clients have come to me after they have purchased property upon learning that they are very restricted in how they can use the property or how they can construct a building or other structure on their new land. 

It is not unusual for buyers to enter into a purchase agreement without having all of the necessary information; in fact, I have found it to be fairly common, particularly when there are surrounding property owners using their properties in ways similar to the way the new purchaser desires to use his or her property.  For instance,  I had a client contact me after he purchased a former residence which had been converted into office space. The properties surrounding the client’s property had gravel parking areas.  However, unbeknownst to the client, once he purchased the property and began operating a business in the former house, he had to become compliant with the most recent local zoning laws regulating that property. This meant that instead of using the gravel parking lot that he envisioned and, in fact, had delivered and dumped on the property grounds, the current laws required that he had to construct a new parking lot with specific requirements, including the use of certain materials and the designation of handicap spaces. In another situation, I was contacted by a private school located on property adjacent to a residential neighborhood. Because another private school had operated within the same space for many years just prior to the new school’s occupation of the space, the owners of the new school did not realize that they had to obtain their own approval from the local jurisdiction.  The new owners operated the school for several years without obtaining the proper permits in the new school name.  Eventually, after receiving complaints from residential neighbors about noise level and other matters regarding the property, the local  governing body notified my client that until it came into compliance with existing zoning regulations, it was in jeopardy of being shut down.  In yet another scenario, I was retained by a client who had purchased a large building which she intended to convert into a restaurant.  This client found out after the purchase that there was not enough on-site parking on the property to meet the local jurisdiction’s requirements for issuance of the necessary permits to operate a restaurant. These are just a few examples of the kinds of issues that can arise in regard to the purchase of property.   

Each local jurisdiction has its own zoning and land use laws. Thus, a zoning classification in one jurisdiction may have different regulations and requirements in comparison to the same zoning classification in another jurisdiction.  Because the laws vary from jurisdiction to jurisdiction, and they are so intricate, costly mistakes can be avoided by seeking guidance from a zoning and land use attorney who can review the very specific regulations for the property and provide an analysis regarding the allowed uses, and the regulations governing a whole host of issues such as parking, buffers, landscaping, height restrictions, signage, lighting, curb cuts, ingress and egress, and the like.   Many times, after I analyze the zoning classification for a specific piece of property and review the allowed uses, the parking requirements, and other regulations associated with the zoning classification, I have to be bearer of bad news:  the client cannot use the property in the manner that he or she wants; or the client cannot build the building that he or she envisioned; or in order to use the property in a certain way, certain other requirements cannot be met. 

Of course, there are often ways to resolve the problems that arise for property owners who find out after they purchased property that they cannot use it in the manner that they imagined. The issuance by the local government of special permits, such as special use permits, special administrative permits and special exceptions, or variances, and even the rezoning of property are often viable mechanisms through which property owners are able to obtain permission to use their property as they want. However, there is no guarantee that applications for these mechanisms will always be granted. Many factors, such as community opposition, surrounding uses and traffic patterns, to name a few, come into play in regard to applications seeking the grant of these zoning exceptions; and these alternative zoning options are not always approved. Thus, it is much better to know ahead of time whether it will be necessary to pursue one of these avenues before buying property. Moreover, it may even be possible to draft the purchase agreement so that it is contingent on either the seller or the purchaser being able to obtain one of these special permits or other approvals in regard to the subject property before the sale becomes final.    

The most prudent course would be for the potential property buyer to retain an attorney experienced in zoning and land use matters to perform a full analysis of the property before the purchaser signs a purchase agreement. The analysis should include a review of all relevant laws and regulations to assess all possible contemplated uses for the property. Once the possible uses are determined, a review of the specific regulations for each use should be made to determine, among other issues, whether there is enough space within the boundaries of the property to locate the required number of parking spaces, and whether the necessary buffers, set-backs, ingress/egress, landscaping, lighting, and even signage requirements can be met. The analysis should also include a synopsis of whether alternative zoning procedures are available in case  these requirements cannot be met, and if possible, an assessment of the obstacles that could prevent the grant of such an alternative zoning option.  It should be only after these steps are performed and the buyer feels that he or she “has looked both ways” by obtaining enough information to adequately understand the subject property, the risks involved, and the circumstances that could cause a collision, that he or she should attempt to “cross the street” and enter into a purchase agreement to buy the property.