Zoning, Subdivisions and Land Development
Zoning, land use, and
subdivision regulations regulate the use and development
of real property. Significant property rights can be
affected by these regulations. It is important for
owners and developers of real property to have
experienced counsel during the process of property
acquisition, financing, and development. Before
acquiring any property it is important to know how that
property may be lawfully used and developed. If an owner
or developer is contemplating a land development, the
process of obtaining regulatory approvals for the use of
a property as desired by the owner or developer can be
challenging.
We have been selected by nationally
known companies, regional developers, and local
developers and landowners in many land development,
subdivision, and land use matters including variances,
special exceptions, conditional use approvals,
subdivision approvals, and land development approvals.
We strive to achieve positive outcomes in a timely and
cost effective manner whether the issue be a variance
for a home addition or a conditional use and land
development approval for a shopping center, hotel, or
industrial plant.
Our experienced attorneys will be pleased to
provide their knowledge and experience in guiding an
owner and developer through the challenging land
development and land use approval process.
1. What proof must be submitted to
obtain a variance?
Where a dimensional variance is involved, in general, the
applicant must demonstrate that:
(i) the need for the variance arises out of
certain physical conditions of the property, for
example, where there are substantial steep slopes or
wetland areas of the property that cannot be developed;
(2) the need for the variance cannot arise from
conditions created by the applicant; and (3) the
variance requested is the minimum necessary for the
reasonable use of the property.
Where only a very minor dimensional variance is
required the burden of proof on the applicant to obtain
a variance may be less stringent.
2. Do I need a lawyer to
obtain a variance?
Any landowner has the right to apply for a
variance and to appear before a Zoning Hearing Board
without the benefit of legal counsel.
Since there are specific elements of proof that
must be introduced into the record before a Zoning
Hearing Board and in view of the fact objectors may
contest a variance application it is advisable to
consider engaging the services of a lawyer in this
process.
3. What is a conditional
use?
Generally, a conditional use is a use designated by an
ordinance as a permitted use in a particular zoning
district but subject to certain additional conditions
that must be established by the applicant.
A conditional use involves a hearing before the
governing body of the municipality.
Typically, the Zoning Ordinance specifies the
additional conditions the applicant must address in a
conditional use hearing which may include, for instance,
the fiscal impact of a project, the traffic impact of a
project, or specific development standards set forth in
the ordinance in question.
4. What is a special
exception?
A special exception is a use permitted in a particular zoning
district but which requires the applicant to address
certain additional conditions of approval.
A special exception requires a public hearing
before the municipality’s Zoning Hearing Board.
5. Do I need a lawyer to
obtain a conditional use approval or special exception
approval?
A developer or landowner is not required to engage the
services of a lawyer for a conditional use hearing or
special exception hearing.
However, since there are specific elements the
developer or landowner must prove in the hearing and in
view of the fact any person having a legal interest in
the matter can attend and participate in the hearing as
an objector, it is advisable to engage the services of a
lawyer for guidance and representation in the
conditional use or special exception hearing process.
6. Is it possible to change, enlarge, or
otherwise modify a nonconforming use or nonconforming
structure?
The provisions of the zoning ordinance for the
municipality in question must be carefully reviewed to
determined what restrictions, if any, apply to change,
enlarge, or modify an existing nonconforming use or
structure.
7. Can a landowner lose rights to maintain, enlarge,
or expand a nonconforming use or structure?
The provisions of the zoning ordinance applicable to the
property in question must be carefully examined to
determine what restrictions, if any, have been adopted
by the municipality in question.
For instance, certain municipalities have adopted
ordinance provisions which provide that if a
nonconforming structure is damaged or destroyed and not
repaired or restored within a time period specified in
the ordinance in question the owner may lose the right
to restore or rebuild the damaged or destroyed
nonconforming structure.
8. If I own a nonconforming lot can I build on that
lot?
The provisions of the zoning ordinance of the municipality in
question must be carefully reviewed.
Some zoning ordinances contain provisions
restricting the right of an owner of a nonconforming lot
to build on the nonconforming lot where such owner owns
a contiguous property.
9. What is the difference between a waiver or
modification
and a variance?
Subdivision and land development ordinances
typically contain provisions granting the governing body
the right to grant waivers or modifications of the
provisions of the subdivision and land development
ordinance. The
governing body does not have the right to grant
variances from provisions of the zoning ordinance.
Only a Zoning Hearing Board can grant variances
from the provisions of a zoning ordinance.
Just as with variances, where a landowner seeks a
waiver or modification of a subdivision and land
development ordinance provision typically the
subdivision and land development ordinance contains
standards and specify the burden of proof the applicant
must meet in order for the governing body to grant such
relief.
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