When Existing Zoning Doesn’t “Fit”

head shot of Diana Bunin Kolev
Diana Bunin Kolev

Over the years, we have had clients come to us with a proposed use of property or land that is not covered or recognized by the particular zoning ordinance/code. This sort of dilemma affects the landlord who has been approached by a potential lessee, a potential buyer of undeveloped land, or anyone seeking to redevelop an existing building. Each scenario is different, but there are some generally applicable considerations.

Most zoning codes break down principal, specially permitted, and accessory uses into residential and business categories such as “single-family dwelling,” “multifamily dwelling,” “restaurant,” “warehouse,” “professional office,” “private school,” or “hotel.” The zoning code often defines each use more specifically, but sometimes the use term is left open ended.

Some uses however, are simply not recognized by the zoning code, or constitute a mix of uses that the zoning code does not specifically permit, or even are permitted in a zoning district different from the one in which the proposed use is to be located. For example, a fitness studio with an attached café and retail sales area, a garden nursery with an attached party space, a movie theater with a bar/café, an e-commerce business that engages in online retail sales looks more like an office use with inventory storage, a drop-in children’s play space that doesn’t fit into the typical use of day-care, or an artist’s studio with an attached residential loft in a commercial district.

There may be compelling economic and community benefits to such mixed-use proposals, especially if the proposal is to fill an existing empty storefront, or to allow an existing use to remain economically viable. Such development can help revitalize neighborhoods and lift local economies. However, since many local zoning codes tend to lag behind the times, such uses may not be recognized, and the process of updating a zoning code can be a slow one.

In light of the complexities and nuances of zoning law, it is often worthwhile to have an experienced attorney evaluate the situation before deciding on a course of action. There may well be ways to smooth the process, and highlight the merits of a project to the community.

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