As an owner, upgrading your property may lead to some zoning violations…
Many property owners come up with creative means to maximize the income generated by their properties.
Property owners may expand property uses, by the operation of new businesses out of an existing property not zoned for the new use. These activities can often generate significant additional revenue which is especially important in times of financial distress.
Despite the good intentions of property-owning entrepreneurs, new uses can often lead to zoning infractions and legal action by municipal zoning authorities. The result is a tension between property owners working to achieve the highest and best use for their property and zoning authorities working to minimize impacts and preserve the predictability of uses for a given neighbourhood.
Property owners working to change or expand property uses should remain mindful of zoning limitations their properties may face and the legal consequences of a citation for zoning violations.
1. Citation for Zoning Violations
The first step in a zoning enforcement action is usually the issuance of a citation. These citations are generally served on a property owner for an alleged violation of the applicable zoning code.
Most zoning authorities claim to be “complaint-driven” meaning that zoning inspectors cite property owners for zoning violations where someone, usually a neighbour, has complained. The citation will generally have a court date on which the property owner must appear in court and enter a plea. Property owners entering a plea of not guilty preserve their right to a trial on the issue.
Consequently, as with any legal matter, appearing in court on or before the specified court date is critical. In most cases, unless a prosecuting attorney seeks an injunction, or a court order requiring that the use stop immediately, receipt of a zoning citation does not necessarily mean that the use must immediately stop. An allegedly illegal use is not a violation of the zoning code until after a court makes a ruling that such use is actually a violation.
However, it is worth carefully analyzing whether a specific use is a violation to better understand the risks of facing penalties in the event a court does find a zoning violation.
2. Identifying Your Zoning Authority
Many property owners are not aware of which authorities regulate zoning matters for their property. Properties located within an “incorporated” area will be regulated by the municipal zoning code for that city or town. On the other hand, properties located outside an “incorporated” area will fall under county zoning jurisdiction. This distinction is important because it will determine, in part, applicable zoning rules, court procedures, and the legal venue for a potential trial.
However, county court actions for violation of a county zoning regulation can result in a range of fines and penalties, including a fine for each day that the zoning violation continues, and, in some cases jail time. Further, in county court prosecutions, unpaid civil penalties can lead to a lien on the subject property and, ultimately, foreclosure to collect the fines and penalties.
3. Rights to Appeal Zoning Violations
All counties must form a Board of Adjustment, a panel of citizens that hear certain land use appeals. Both county and municipal Boards of Adjustment are specifically charged, in part, with a review of zoning enforcement-related decisions.
Aggrieved property owners who disagree with a determination made by zoning authorities may request a hearing before the Board of Adjustment. An appeal to a Board of Adjustment generally stays other pending enforcement actions, including enforcement through the courts.
While Boards of Adjustment may review the enforcement decisions of zoning authorities, Boards of Adjustment generally cannot grant a “use variance.” This means that a Board of Adjustment may not allow a property owner to use their property in a manner that is a clear violation of the applicable zoning code.
For example, a Board of Adjustment cannot grant a variance for a residential property to be used for an industrial purpose which is a clear violation of the zoning code.
However, in certain cases, Boards of Adjustment may grant a stay or a specific period of time for a property owner with an illegal use to come into compliance with the zoning resolution.
A decision rendered by a Board of Adjustment may be appealed to the district court under a special procedure within 30 days of the date of the final decision. This type of appeal can be challenging, as the aggrieved property owner must demonstrate to the court that the Board of Adjustment either exceeded its legal authority or abused its discretion in making its decision about the zoning enforcement action. Because of this high burden of proof, these actions can be complex and sometimes it is difficult for a property owner to prevail.
In conclusion,
Like every parcel of real estate is unique, so is every land use situation. Each zoning case is different and will present many exceptions and nuances. This article is intended to provide general information and, therefore, should not be treated as legal advice.
If you have specific questions about zoning laws or a specific zoning enforcement action, nothing can substitute for the careful analysis of a property attorney.