Living in an expanding city can be exciting. When the construction project starts on the land across from your subdivision, it becomes a fun guessing game about what will be built. Will it be a new coffee shop that you can walk to? Will it be a delicious local restaurant that you will get to try? Or will it be yet another credit union? But, with all the excitement, there can also be disappointment and frustration. Maybe you liked that empty field, and the thought of another strip mall is aggravating. Perhaps you were hoping for a park for your kids to play in, and it's turning into a nightclub. Maybe you wanted new shops, and it's zoned as a subdivision.
This frustration can become heightened if you are the one who owns the land and wants to use it for something it is not zoned for. In this case, you would have to file a land use application.
Common Land Zone Designations
Empty land is almost always already zoned. Zoning indicates what that land can be used for in the future. There are six different ways that land can be zoned.
- Residential: this land is for people to live on, whether single-family homes, apartments, condos, or other dwelling spaces.
- Commercial: this land is zoned for retail space. This includes stores, movie theaters, restaurants, offices, hotels, etc.
- Industrial: this land is zoned for factories and manufacturing.
- Rural: this land is reserved for farming. It can be used to grow crops and raise animals.
- Environmental: this land is protected for natural reasons. There may be an endangered species living on it, or there may be nature that needs to be preserved.
- Historical: this land is protected. If there is a building or street with historical significance, it can be saved.
Within these designations, there are some subcategories. For example, if the land is zoned as residential, different designations allow for an apartment complex versus a single-family home. Another example is that if the land is zoned rural, they may allow up to a certain number of homes for the owners, farmers, and/or laborers.
If you wish to purchase land for a specific purpose, you must understand what that land is zoned for. It will save you time and money in the future. Local governments have zoning maps that you can review to ensure you are purchasing land in your desired zoning designation. Further, your real estate agent should be able to help you verify the zoning ordinance of the land.
Zoning Variances and Land Usage
If you have land zoned in one category but wish to use it for something else, there are some steps you can take. While it is a process of fees, applications, paperwork, and time, it is not impossible. A zoning variance will allow you to use your land in a manner that it is not designated for.
For example, let's say you own a house on land that is zoned rurally. You want to build a fruit stand to sell the apples and peaches you grow. Because the land is rural, you must apply for a zoning variance, or zoning waiver, to conduct commercial exchanges.
A land use application is slightly different than a zoning variance. A land use application is when you want to build something on your land that fits the zone, but it needs approval. For example, let's say you own a piece of land that is zoned commercially. If you want to open a vape shop on that land, there are no problems, right? It is a commercial operation being opened or built on commercially zoned land. What's the problem? Well, it's not always that simple. Suppose your land is directly across from an elementary school or a church. In that case, your application may be denied based on the community's safety or the surrounding neighborhood's wishes.
A similar scenario occurred in Meridian, where an entrepreneur wanted to open a nightclub and lounge across from The Village. However, the surrounding neighborhoods petitioned against it. They claimed that it would be too loud and too dangerous to have it so close to the subdivisions. Ultimately, that nightclub was denied.
Land Use Application Process
If you submit a zoning variance or a land use application, it goes through a consideration process. First, in your application, you will submit your plans for the land, your reasons for using it as you wish, and evidence. Then, with the application, the courts will consider several factors and either approve or deny the application.
Why was my Application Denied?
Unfortunately, the land use application process can be complicated. It is even more challenging to get the zoning ordinance amended. The court will consider all of the information you present in your application. If your application is incomplete or unclear, there is a good chance it will be denied. Therefore, you must take the time to do your research and present a coherent plan.
We highly recommend you consult an experienced and trusted local attorney during this process. They can help you with your application and ensure the information is presented convincingly and logically. In addition, a local attorney from Johnson May Law will be familiar with the land and the surrounding neighborhoods and will be able to make personalized recommendations to help your application.
The next consideration is public opinion and interest. The land usage or zoning variance must be in the public's best interest. It should support their desires, values, and needs in the community. Showing the court how your plan has positive criteria or an inherently beneficial outcome will help make your application more convincing.
Often, zoning ordinances specify a maximum building size or population density. An application to amend these may be denied if public safety and well-being are at risk. For example, if the land is zoned residential, and you want to build an apartment complex, it seems like a done deal. However, if your apartment complex is planned to be five stories tall and house 100 families, it could be denied if the zoning ordinance caps buildings at four levels or is limited to 65 families. This increase in traffic or lack of space for parking would cause issues.
What Can I Do Next?
If your application is denied, it is not the end of the road. The first and most crucial step is to contact an attorney.
Exhaust Internal Remedies
If your land use application is denied, work with your attorney to exhaust administrative or internal remedies. In other words, you cannot seek a decision in a new court until all claims and remedies have been exhausted in the existing one. So, if you filed with the county commission, you must exhaust all administrative remedies with the county commission before seeking a judicial review. However, if the agency acted beyond their authority, without reason, or unjustly, then the state of Idaho offers an exemption, in which you are not required to exhaust administrative remedies.
File an Appeal
Once you have gone through all internal remedies and they are still not deciding in your favor, you can appeal to a district court judge. You must act with haste, as you only have 28-30 days to file the appeal. The appeal process is complex but not impossible. Working with an attorney will increase your chance of success by ensuring you are prepared. During the appeal, the judge will review the information presented to the agency. Unless you can prove that the agency made an error, they will generally side with the agency. However, if the agency acted beyond its authority, ignored procedures, made an arbitrary decision, lacked evidence, or violated a constitutional provision, then the judge can overturn the decision.
Further, if a judge denies your application, the court must issue its reasoning in writing. It must clearly outline the reason for the rejection. It must state the criteria that were not met and the reasoning behind the decision. If this written explanation is not provided, you can file an appeal for reconsideration. This must be done within fourteen days.
Submit a New Application
Res judicata prohibits you from filing a new application if no circumstances have changed. In other words, if your application is denied, it cannot be reheard. However, if your circumstances change, you can work with your attorney to submit a new application. For example, let's look back at the example of a vape store getting denied because there is an elementary school across the street. However, if a bond passes in the community to build a new elementary school a few blocks away, and the old one is torn down, your circumstances have changed, and you can submit a new application. Similarly, if your five-story apartment complex was denied, but two years later, a different developer has one approved, you can submit a new application because there is a new precedent.
How Can my Attorney Help?
No matter what stage you are in, your attorney will be your most valuable asset. Before you purchase land, your attorney can help you understand how the land is zoned and any restrictions within that zone. If you are seeking to use land you already own for something it is not zoned for, your attorney can help you file an appeal. If you filed and were denied, your attorney can guide you in your next steps. Johnson May Law is ready to help you. We have experienced real estate lawyers and property attorneys and believe in helping Idahoans achieve their goals.
Contact Johnson May Law about your land use and property zoning.