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Consider Zoning When Buying or Expanding a Business

Consider Zoning When Buying or Expanding a Business


SML Perspectives
(April 2,2012)

When buying or expanding a business, beware of the sand traps and pitfalls related to zoning.

"Zoning" concerns far more than the surface inquiry of whether a certain use (e.g. your business) is allowed in the current district.

Is the Zoning Correct?

The zoning might be correct, but there could have been "conditions" added in a previous rezoning that limit the uses allowed or that control architectural or dimensional aspects of your building. For apartments, density caps to appease neighbors are common. Office and retail zoning districts may have building height limitations, lighting controls or extra landscaping requirements in areas bordering residential districts.

You should also check for zoning "overlays." Overlays are zoning districts that are superimposed on top of already existing districts. For example, all of Main Street might be zoned retail but the town has adopted an extra set of zoning requirements for retail on the Main Street corridor. Checking the requirements for the retail district only doesn’t tell you all of the restrictions affecting your business.

Is Expansion Possible?

If you think your building may need to be expanded, do your "setbacks" allow it? Setbacks are the distances a building must sit from front, side and rear property lines. Setbacks will vary from one district to the next.

If setback requirements do not allow you to expand, you might meet the requirements for a "variance." Variances are granted by the local Board of Adjustment if you meet certain statutorily imposed standards. If the statutes are strictly followed, very few variances are allowed. Many counties and towns, however, are not so strict.

What are the Sign Regulations?

Every year more and more cities adopt sign regulations that require smaller, more muted and less visible street and building signage.

Just because your predecessor was allowed a pylon sign or an internally lit wall sign doesn’t mean you will be. If you purchase an existing business, your signs are likely to be "grandfathered." But if new regulations have been adopted and you need to change the signs to accommodate your company’s name, you lose the grandfather status and must comply with the new regulations.

Is Your Use Allowed but "Nonconforming"?

If you purchase an ongoing business, always check to see if the business conforms to current zoning regulations.

If it does not, the status is called "legal nonconforming." In simple and more colloquial terms it is called grandfathered, but legal nonconforming uses in most jurisdictions are not allowed to expand the building footprint or the intensity of use.

Access

Access is handled differently depending upon your locale. If your business enters the state’s road system, you must obtain a driveway permit from the state Department of Transportation. The DOT can impose conditions upon the permit, such as the construction of a deceleration lane or entrance taper.

But driveway regulations often are not in the zoning ordinance, and especially when you acquire a building that must be redeveloped you should not assume that you will have the same number of access points that the previous owner had.

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Authors
Thomas E. Terrell
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Associated Attorneys
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