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VARIANCES, REZONING AND CONDITIONAL USE PERMITS CAN RESCUE A DEAL

On behalf of Michael Brooks of Law Offices of Michael A. Brooks posted in land use & zoning restrictions on Thursday, August 9, 2018.

What can you do when you find the perfect piece of property — except for the zoning regulations that stand in the way of what you’d like to accomplish? Do you just walk away and start your search all over?

That’s always an option, but you don’t have to go that route automatically. There are a number of ways to potentially circumvent zoning issues. Following are a few of those.

A variance

This is a discretionary modification or waiver of the usual zoning regulations. It’s most appropriate when there’s some unusual characteristic of the property that makes a strict application of the zoning requirements a hardship.

For example, imagine that you want to build a home of similar size to all the other homes in the area. However, the irregular shape of a parcel of land makes it impossible to do so and obey the regulation that requires a property to sit back at a specific number of feet from the road. A variance would allow you to build your home closer to the road.

Rezoning

Rezoning asks the city to change the allowable use of a property altogether. For example, say that you want to build a shopping center on a spot that’s currently designated for agricultural use only. If the city agrees to rezone the area for commercial use, you could move ahead with your project.

Conditional Use Permits

Somewhat like a variance, these permits allow a property to be used in a way that it normally wouldn’t without a change in zoning. This type of permit is most likely to be granted when your plans for the property would benefit the city or the public.

For example, you might seek a conditional use permit to operate a small business out of your home, like a bed-and-breakfast, in an area that’s strictly residential. You could argue that your business encourages tourism to the area and thus, indirectly, benefits the public as a whole.

Overcoming a zoning restriction can help you achieve your dreams. Consider getting help from a California attorney experienced with real estate transactions as you decide which of these methods will work best for your needs and how to approach the zoning board with your request.

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USE THESE TIPS TO PREPARE A VARIANCE REQUEST TO ZONING

On behalf of Michael Brooks of Law Offices of Michael A. Brooks posted in land use & zoning restrictions on Friday, July 6, 2018.

Zoning regulations rule everything about building. Whether you’re trying to build an addition onto your home or you want to build a whole new factory for your business, zoning can be either a blessing or a bane.

This is one of those times, however, where the old adage about how “it’s better to ask forgiveness than permission,” definitely doesn’t apply. When you run into a zoning problem, deal with the issue before you start to build. It’s far more expensive to do it the other way around.

In other words, ask the zoning board for a variance before you go through with any of your plans. It isn’t unusual for variance requests to be approved, but the right approach can still make the task a lot easier. Here is some advice on how to prepare your variance request:

1. Talk to the neighbors.

Whether your project is residential or commercial, the attitude of the community toward what you’re doing can directly affect the zoning board’s decision. The more support that you have from residents in the area, the easier it will be. If your project is residential, talk to your neighbors about how it will improve the looks or value of your property. If your project is commercial, stress the benefit a thriving business like yours will bring to the area.

2. Attend the meetings.

There’s no harm in attending a few zoning board meetings — and a lot to be gained. You can introduce yourself and let members know that you’re there to gain a better understanding of what they do and how to proceed before you put your application for a variance in. You’ll also gain a good sense of how the board is likely to respond — which can clue you in on whether or not you’re going to need legal assistance with your request.

3. Hire a local expert.

The odds are good that you’re going to hire a contractor for your project — so, make it one from the local area. Zoning is a highly local issue. That means that local builders are most familiar with what will and won’t get approved in any given district.

While dealing with zoning can be a hassle, the end result is worth it — especially once you see your dream project completed!

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UNDERSTANDING ZONING’S GOALS CAN HELP YOU AVOID CONFLICT

On behalf of Michael Brooks of Law Offices of Michael A. Brooks posted in land use & zoning restrictions on Thursday, June 7, 2018.

Zoning codes exist for a reason. So do the rules imposed by homeowners associations. Even if you don’t like them, or outright hate them, they are often designed for one major underlying purpose: to keep property values stable in the area.

Why are zoning regulations so important to a property’s value?

In essence, it comes down to that old real estate saying that “location is everything.” Owning a beautiful home is wonderful — and proximity to things like a school, a grocery store, a nice coffee shop and a couple of restaurants is great. However, if you happen to have a beautiful home that’s located downwind from something like a pig farm, for example, you could see the value of your real estate plummet.

Similarly, zoning laws often prevent things that could cause significant amounts of noise pollution around both businesses and homes. Airports and highways, for example, can cause major damage to a property’s overall value when they get too close. Similarly, power plants and facilities that use hazardous chemicals can also deeply damage the value of nearby properties.

You may also encounter zoning regulations that restrict everything from the color of paint you put on your building to the types of signs you use for a business. In certain towns and cities, for example, there are old sections of town that have a certain local color or allure based on their vintage appearance. Businesses that move into the area often have to comply with highly-detailed rules about what colors they can use on advertising, the size of their signs and more. Even new buildings may have to be designed to fit in with the vintage look of the place.

While you are considering buying any commercial or residential property, one of the first things you should look at carefully is the neighborhood. The more distinctive the “look” or feel of an area, the higher the odds that zoning regulations are strictly enforced. That can sometimes make it easier to decide if a property will work for your purposes. You can save a lot of aggravation if you’re willing to work within the rules, rather than fight them.

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WATCH THOSE CONDEMNATION CLAUSES IN YOUR COMMERCIAL LEASES

On behalf of Michael Brooks of Law Offices of Michael A. Brooks posted in land use & zoning restrictions on Friday, May 11, 2018.

If you have a commercial lease and you’re asking, “What’s a condemnation clause?” it’s time to get your lease out and read it. There’s some important information in there you missed.

You wouldn’t be the first person to make that mistake. Condemnation clauses seem like they’re addressing such a remote possibility that both landlords and tenants often fail to carefully consider them — until a letter comes from the authorities somewhere saying that the building or land is about to be taken under an eminent domain provision for development.

Often these are “temporary takings” or only partial takings because construction is going on. A partial taking might scoop out a few feet of a property because the main road in front of it is being widened to accommodate increasing traffic. Temporary takings might mean giving up your parking to accommodate construction vehicles for a similar project even if you aren’t losing property in the long run. Sometimes the takings are total, however, such as when an economically depressed area is being razed for new development or a major highway is being built. In the end, all three can have a disastrous effect on a business.

If you’re a landlord, a permanent taking, whether total or partial, might be better for you than a temporary one. You’ll get at least as much (and probably more) for the property as if you had voluntarily sold it, which you can then turn into new property if you want.

A temporary or partial taking, however, can be a problem. Sure, the government will pay you rent while it’s using your space, but if your tenant closes up shop and relocates, you have to go looking for a new tenant once the government is done.

If you’re a tenant, your lease could put you in debt for a building or property you can’t really use for your operations — and make it impossible for you to afford to open up somewhere else. While you’re off the hook for the total taking, a temporary or partial taking could really damage you. That’s why it’s important to address all possibilities in the lease and not treat both situations the same.

Tenants and landlords need to negotiate condemnation clauses carefully and balance their interests. If you’re already in a lease, it’s an area that you need to address when the lease comes up for renewal.

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CALIFORNIA KILLS BILL DESIGNED TO RELIEVE HOUSING WOES

On behalf of Michael Brooks of Law Offices of Michael A. Brooks posted in land use & zoning restrictions on Wednesday, May 2, 2018.

Housing in California is priced much higher than it is in the rest of the country. That’s a fact that’s plagued residents for decades — so they were understandably excited at the idea that new legislation could alleviate the problem.

The legislation, known as SB 827, would have compelled cities to allow apartment housing anywhere within walking distance of major bus and rail routes. That would overturn many zoning regulations enforced by cities that wanted to keep areas from becoming too urban and too crowded for the comfort of those already there. It would also cut through local politics that often control zoning decisions and cater to the interests of a select few.

Unfortunately, it wasn’t to be. The bill faced strong opposition by single-family homeowners who felt that their property values would be hurt and by local governments who felt the state was usurping their power to restrict land use they way that they deemed fit. Others worried about preserving historic landmarks. Groups who advocate for low-income tenants also disliked the bill, preferring new low-income housing instead of less-affordable gentrification. Ultimately, the bill died on the floor of the state senate.

This is probably not the end of the dispute, however, because it certainly isn’t the end of California’s housing woes. Local governments have long exercised considerable control over how land can be used. Zoning regulations can effectively reshape an entire area according to a local government’s plans — and keep out anything that the current residents find repugnant to their sensibilities. A lot of zoning restrictions are enforced with the underlying intent of blocking lower-income residents from moving in.

Typically, state governments have stayed back and let zoning be a local decision. However, housing crises like those in California draw attention to the fact that the process may need to change. The desires of a few shouldn’t necessarily have more weight than the needs of the many when it comes to sharing available housing space.

As California’s population continues to grow, zoning-related legislation is likely to become a focus of more legislation — and perhaps increasing legal challenges from those who are ready to see the state expand.

Source: www.sacbee.com, “As California’s housing crunch worsens, who will control land use?,” Dan Walters, April 29, 2018

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EXERCISE CAUTION WHEN BUYING A FARM FOR A MARIJUANA BUSINESS

On behalf of Michael Brooks of Law Offices of Michael A. Brooks posted in land use & zoning restrictions on Wednesday, April 4, 2018.

There are a lot of tricky issues when it comes to setting up a marijuana business — not the least of which is finding a location where the zoning isn’t a problem.

Some eager entrepreneurs are hoping that they can buy and convert a family farm to their needs. However, you need to exercise caution before rushing ahead with a purchase. These are some of the biggest questions you need to ask first:

Do you have a contingency plan if the local jurisdiction won’t play along?

Commercial agreements usually have a contingency clause that allows you to back out of the deal if the local governments won’t fit the marijuana business under the property’s zoning. The agreement to purchase a family farm, however, is much the same as the agreement to purchase any other home. Without adding a contingency clause to your contract, you could be stuck with a property that’s unsuitable for your needs.

You can’t rely on how the farm has been used in the past to predict how it can be used in the future — especially for marijuana businesses and/or farming.

Could federal laws be a problem?

Because marijuana is still illegal at the federal level, you could run into potential problems with civil forfeiture laws. You could lose your home in addition to the business if you plan on moving into the farmhouse. You can also run into problems with conservation easements. If the federal government is providing a local jurisdiction with extra funding tied to agricultural restrictions, allowing you to operate could endanger those funds. A jurisdiction could step in and stop your operation in order to protect its own finances.

How do the neighbors feel about the proposed business?

Nuisance laws generally don’t stop a farm from operating — except when it’s a marijuana business. The pungent odor of the plant is sometimes a problem for neighbors. In addition, there’s often a fear that a marijuana business will bring in “unsavory” characters seeking to make a quick buck by theft.

Marijuana businesses do have the potential to be quite profitable, but it takes some careful negotiations to make sure that you get off on the right foot with the land-use and zoning restrictions. If you’re unsure about the particulars, it’s usually wise to get some experienced legal assistance.

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CALIFORNIA EYES MAJOR ZONING LAW CHANGES

On behalf of Michael Brooks of Law Offices of Michael A. Brooks posted in land use & zoning restrictions on Friday, March 23, 2018.

Some areas of California are running out of space for housing developments, and industry leaders and politicians are thinking that it’s time for some drastic changes.

However, those changes may spell the end of local controls over zoning regulations in the name of the greater good.

If you’re thinking about investing in California real estate, this is important news.

Zoning restrictions have become a major factor in a number of issues in the state over the years. The housing shortage has made it difficult for the average person to find affordable rents. In addition, employers resent the zoning restrictions around mass transit locations because it forces potential employees to commute long distances — or go somewhere else to live and work.

If the state has its way, those problems could become a thing of the past. If the proposed State Bill 827 passes, local jurisdictions would be barred from enacting zoning restrictions that would stop housing developments from going up near light-rail train stations or bus routes that are regularly used. Experts say that would essentially affect around 95 percent of some cities.

In addition, the new zoning regulations included in Sill 827 would require housing developments to be a minimum of 45-85 feet in those same areas. That would make eight-story buildings a given.

Environmentalists and current residents of those areas may not be enthusiastic about the changes but executives from a wide array of industries — including tech companies, rideshare companies and more — are backing the bill. They say that the current zoning restrictions are, in essence, killing the growth of their companies by making it too hard to find and employ good workers.

Those opposed to the bill consider it absolutely draconian in nature. It guts the ability of local jurisdictions to let the people already living there decide what is actually in their best interests by vote.

While it remains to be seen if the bill will pass, the odds are good that it will (given the amount of high-profile backers it already has among the captains of industry). If it does, the opportunities for investors who are ready to begin those housing developments are ripe for picking.

Source: The Porterville Recorder, “Commentary: Zoning nullification: The end of local control,” March 08, 2018

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HOW CAN YOU HANDLE A ZONING PROBLEM?

On behalf of Michael Brooks of Law Offices of Michael A. Brooks posted in land use & zoning restrictions on Friday, March 9, 2018.

Finding just the right property for your business needs can be exceptionally frustrating.

You can find the perfect piece of land or building — but if the zoning restrictions are wrong, you can’t make use of it. And those perfect places can be few and far apart.

If you can’t find a new perfect place, it may be possible to negotiate with your local jurisdiction to change things to your liking. You essentially have three options:

1. Ask for the property to be rezoned.

A rezoning request usually applies to just an individual piece of property, although it can involve larger tracts of land as well. Rezoning requires a jurisdiction to redefine the limits on a property’s use. For example, an agricultural tract could be rezoned for industrial use to accommodate a factory outside of the city limits. Or, a small area of undeveloped residential land might be rezoned into commercial use to accommodate a much-needed grocery.

2. You can ask for a conditional use permit.

These permits are issued by the jurisdiction involved. Anyone applying for one must meet whatever conditions are imposed on a business in order to operate on that spot. The permission, once granted, usually continues as long as the conditions of the permit are met.

Cities often allow these when they recognize the usefulness of a business but also see a potential problem. For example, a historic bed-and-breakfast might be useful to bring in tourists, but the guests could create problems for residents in the area if they park all over the streets. The bed-and-breakfast might be required to maintain a parking deck for guests.

3. You can try to get a variance.

Variances aren’t always available. When they are, they often are used in place of conditional permits.

Sometimes a variance is also given to reduce an unusual burden on a property owner who is unable to enjoy the full use of the property because of some irregular feature it involves. However, incoming businesses are usually aware of a property’s limitations before they purchase it, which could prevent them from getting a variance later.

Source: propertymetrics.com, “Rezoning, Variance, or Conditional Use Permit: Which One Can Solve Your Zoning Problem,” accessed March 09, 2018

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CAN I SET UP A POT DISPENSARY IN BEVERLY HILLS?

On behalf of Michael Brooks of Law Offices of Michael A. Brooks posted in land use & zoning restrictions on Friday, February 2, 2018.

While setting up a medical marijuana dispensary in many parts of California may be legal to do, that’s not the case in the city of Beverly Hills. The City Council made it illegal to do so at a meeting on August 8, 2017.

Resolution No. 1813 is the latest legislation that has been drafted on the matter. It further clarifies previously drafted ordinances regarding the legality of setting up commercial cannabis operations in the city.

While the existence of any type of commercial cannabis operation is prohibited in the city, outside companies can still come into the area from neighboring cities to distribute medical marijuana to patients. The latest ordinance reflects that Beverly Hills has deviated from state law regarding the harvesting of the drug for personal use.

In the minutes taken from the closed-door hearings on the matter, the city council refers to concerns over the public’s welfare, health, and safety as reasons for not allowing pot dispensaries to be set up in the city. The minutes also show where the city’s lawmakers have attempted to more clearly define the term “commercial cannabis activity” from their perspective. They described it as being any marijuana created through cultivation, and also as marijuana used for medical or non-medical treatment, and also the transportation of marijuana. They also established that activities such as labeling, selling, delivering and using marijuana or its derivatives for laboratory testing purposes are also illegal.

If you’re unclear as to whether the operation you’re considering setting up would violate existing city ordinances, then a Beverly Hills land use and zoning restrictions attorney can provide guidance in your case.

Source: City of Beverly Hills, “Marijuana regulations and information,” accessed Feb. 02, 2018

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WHAT TO KNOW BEFORE YOU AGREE TO LEASE TO A WIND FARM

On behalf of Michael Brooks of Law Offices of Michael A. Brooks posted in land use & zoning restrictions on Friday, January 5, 2018.

Wind farming offers a clean, renewable source of alternative energy. It also offers farmers and other owners of plots of land in just the right location a way to make some additional passive income.

However, leasing your property to a wind farm isn’t always a simple matter. A mistake on your part could actually affect your ability to use your property as you see fit for a long time, hinder inheritances and create ongoing headaches nobody needs.

While it’s worthwhile to seek legal advice in advance of any agreements about commercial land use, here are a few pieces of information that should help you navigate the new terrain:

1. If you’ve been approached by a wind farm, contact your neighbors. The odds are good that they have been contacted too — or will be soon. If you bargain jointly, you’ll increase your negotiating power. Since the company has significant resources on its side, it’s time to pool yours.

2. Call in the experts so that you understand exactly how the wind farm will affect your active growth operation. If the land is lying fallow and you don’t expect to use it, you may not have any issues. However, if the land is in use, you need to know exactly how the turbines, access roads and substations are going to disrupt any of your field’s configurations, water supply, drainage or planting and harvesting machine access.

3. Spell out the rights you have to use the land around the turbines carefully. In addition, the lease needs to state what compensation you’ll receive if the wind farm’s operation (or some failure of operation) destroys any part of your crops, products, livestock or property.

4. Consider the time limit of the lease carefully. It isn’t uncommon for a wind farm to lease land for 50 years or longer. That’s the only way they can recoup their investment and earn a significant profit. The odds are good that this will affect your heirs — and maybe their heirs, depending on your age. You may need to hold some serious discussions with your family to make a decision.

5. Don’t forget debts, lenders and liens. If you have a debt on the land, your lender may have to give permission for the wind farm. The lease should also address any liens on the property — including those brought on by the wind farm.

Source: National Wind Watch, “Five questions to ask before signing a wind-energy lease,” Liz Morrison, accessed Jan. 05, 2018

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