For Heaven’s Sake! What to do About a Zoning Violation?

A North Country church made headlines last week when the U.S. Justice Department threw its weight behind their challenge of a local zoning board’s decision not to allow them to hold services in a building they recently purchased. Christian Fellowship Centers paid $310,000 for the former nightclub and refitted it to host masses. The problem is that the building is located in an area designated by the Village of Canton’s zoning code as a “C-1 Retail Commercial District”, and churches are not among the designated permissible uses in that district. Thus, for the time being their new facility sits empty while they hold services in a local Best Western.

This potentially implicates religious discrimination and the Religious Land Use and Institutionalized Persons Act of 2000, hence the federal involvement and news coverage. But,  chances are you don’t operate a religious institution, so let’s take this opportunity to examine what options all owners have when confronted with zoning rules that conflict with their intended use of property.

If you cannot obtain a permit because the proposed use of your property creates violation or if you face an enforcement action because your property is already a violation you have several options.

First, you could simply comply with the rules. This option does not allow for your intended use of the property. Legally, this is the simplest option. But it can also be the most costly if you miss a great business opportunity or have to make an expensive modification to an existing structure.

Second, you can appeal the determination that deemed your property to be in violation to the local zoning board of appeals. Usually some local variant of a code enforcement officer will make this determination. By bringing an appeal to the zoning board, you are essentially arguing that the finding of the enforcement officer was erroneous either because of their reading of the code, their examination of the facts, or some other purpose. If the zoning board agrees, they can reverse the determination of the enforcement officer.

Third, you can apply to the zoning board for a variance. By taking this route, you are saying that although maybe the enforcement action was proper in terms of the code, there is another good reason they should allow your use. The zoning board will usually allow violations that predate the change in the zoning code that made them noncompliant as so-called ‘grandfathered nonconforming uses.’ Some of the other factors zoning boards can take into consideration are the extent to which the requested variance changes the character of the neighborhood, the availability of compliant alternatives, and the uniqueness of the owner’s plight.   

Fourth, you can challenge the determination of the zoning board in court. Subject to a few exceptions, this option is not available until the zoning board has made a decision against the owner. Favorable court rulings can be hard to come by because courts give zoning board determinations a lot of weight and will usually only overturn them for very compelling reasons.

Your only other option is to lobby the local legislature to change the zoning law altogether. This can be a very arduous process and is beyond the scope of what the violation is worth to all but a small handful of owners. Even if successful a change can be subject to reversal if found to be illegal ‘spot zoning.’ These procedures can be complex and it’s difficult to know the likelihood of success before undertaking them. It is a good idea to seek legal advice if you ever find yourself at odds with zoning officials. 

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