From the Nolo eCommerce Center
If you’ve found a spot that’s perfect – except that it lacks the zoning you need – you may be able to work the situation to your favor.

Once you’ve found a location that meets the needs of your business, it can be quite a disappointment to discover that it may not be properly zoned for what you want to do there. Fortunately, an unfavorable zoning situation doesn’t necessarily mean you’re out of luck. There’s a certain amount of administrative discretion under building codes and zoning ordinances – enough that it can help greatly to have the administrators on your side. Here are some ideas for accomplishing this.

Seek Support from the Business Community

If you employ local people and will contribute positively to the economy, it may pay to make contact with city or county business development officials or even the chamber of commerce. If they see your business as an asset and don’t want you to locate in the next city, they may be helpful in steering you through the building and safety department and may even advocate on your behalf before zoning and planning officials. Trade associations and merchants’ associations may also come to your aid if you need building and safety officials to decide in your favor in an area in which they have some administrative discretion. Finally, contractors, lawyers, and others who are familiar with the system and the personalities often know how to get things done and can be helpful to you.

Appealing an Adverse Ruling

The decision of a zoning or building official isn’t necessarily final. If you get an adverse decision from the local Planning Commission, for example, you may be able to have a board of zoning adjustment or board of appeals interpret the zoning ordinance in a way that’s favorable to you. Alternatively, you may be able to obtain a variance (a special exception to a zoning law) if a strict interpretation of the ordinance causes a hardship. In some cases, you can get a conditional use permit, which lets you use the property in question for your kind of business as ling as you meet certain conditions set down by the administrative panel.

In dealing with administrators and especially with appeals boards, it’s important to have the support of neighbors and others in your community. A favorable petition signed by most other businesses in your immediate area or oral expressions of support from half a dozen neighbors can make the difference between success and failure at an administrative hearing. Conversely, if objectors are numerous and adamant, you may not get what you’re after. So if you sense opposition developing from those living or doing business nearby, try to resolve your differences before you get to a public hearing – even if it means you must make compromises on the details of your proposal.

Going to Court

Every day, hundreds if not thousands of interpretations and applications of building and zoning laws are worked out through negotiation with administrators and through administrative appeals. But if these channels fail, it’s possible in many instances to go to court. This can be very expensive and time-consuming. What good is it if you win your battle for a permit to remodel your premises but you waste two years getting to that point? Still, there are times when what you’re seeking is so valuable and your chances of success are so great that you can afford both the time and money to get a definitive ruling from the courts. And in some instances, you can get a court to consider your dispute fairly quickly. If, for example, you submitted plans to the city that complied with all building and safety codes, and the building official refused to issue a building permit unless you agreed to put in some additional improvements you believe are not required by the ordinance, you could quickly go to court asking for an order of “mandamus” based on the fact that the administrator wasn’t following the law.

Before you consider court action, however, get as much information as you can about the cost of litigation, how long it will take (you can win in the court trial, but the city might decide to appeal), and the likelihood of your ultimate success. This is a specialized corner of the law, so you’re going to need someone who’s had experience in the field – and there may not be that many to choose from in any given location. Look for a lawyer who’s represented a similar business in a dispute with the city or someone who formerly worked as a city attorney and knows all the ins and outs of the local ordinances.

Example: How Strategic Planning Pays Off

Shelby, owner of Small World Books, is delighted to learn that the drugstore next door is going out of business. He immediately seeks to buy or sign a long-term lease for the building so he can expand his profitable business. The future looks rosy.

Not so fast. Shelby learns that for his new business use of the building, he’ll have to supply eight parking spaces to get a permit. Doing this in his desperately crowded neighborhood is totally impossible at anything approaching an affordable price.

Instead of giving up, Shelby asks the city planning commission for a variance to waive the parking spaces rule. A public hearing is scheduled. Shelby knows he has to put on a persuasive case, so he:

  • Calls hundreds of local writers, publishers, critics, educators and book lovers to pack the hearing and testify that an expanded bookstore will be a great community resource.
  • Documents the prohibitive cost of buying or leasing the required parking spaces.
  • Offers to validate at a parking at a lot four blocks away, just outside the worst of the congested area.
  • Hires an architect who determines that a heavily used, nearly public garage can accommodate 20 more cars if the parking spaces are striped differently.
  • Offers to pay for the re-striping.

Shelby gets the variance.

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