Municipal-Use Approval

Nicholas Jodhan Comments
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In any land-development project, the journey from concept to completion involves a multitude of disciplines. Financial feasibility studies, design requirements, land-use and zoning ordinances, construction contracts, real estate law and transactional law all come into play in the planning process. As developers, we must have some degree of comfort with the complex relationships between the many facets of the process to successfully maneuver through them in a sequential, efficient and economical manner.

The process is often a slow and arduous one. A developer's own careful planning and analysis is critical and, therefore, adds necessary time to the process. But the largest encumbrance to land development is the plethora of bureaucratic red tape that exists in the municipal approval process. A crucial part of the initial due-diligence is the examination of the current zoning on a potential site and the likelihood of gaining use approval to develop it as desired. Understanding the process and knowing how to work through it will speed the tempo of the development's chain of events.

A Bit of History

A little historical perspective may be useful to better understand the process of land development. Evidence suggests the existence of residential suburbs in every culture from early Mesopotamia to colonial America. The systematic evolution of suburbia began in earnest in early 19th-century America. Rapid population growth and major transportation advancements in the first half of the century were significant contributors to this suburbanization.

With transportation improvements opening new areas for growth, would-be homeowners and real estate specialists became active in the city building process, lobbying city government to extend the infrastructure and to set property lines. When municipalities began paying for the new infrastructure accommodations, development and the public process became inextricably linked.

The marriage of private land development efforts and the public process was solidified during the post World War II era, when the United States began to experience a tremendous growth spurt. Returning GIs triggered a population boom resulting in an expanded need for residential, commercial, retail, industrial and employment centers. City planners and the general public demanded more room dedicated to recreational, educational, social and cultural activities.

Mounting concerns regarding transportation, population growth, waste management, drainage, water supply and a host of other concerns gave rise to the need for government controls to manage infrastructure and growth. In a system of government where states control all powers not granted to the federal government under the Constitution, local land-use regulations evolve from state legislation. This legislation mandates the nature of land use and planning powers local government can exercise.

Having such local centers of power in effect gives way to a wide range of ordinances, plans, regulations, policies and procedures that can affect everything from the uses allowed on a site, to traffic generated by the development, to storm-water drainage requirements. The modern land-development industry is the direct result of the ongoing need for housing and services as communities expand their borders and the population pursues the American dream. Though specific regulations vary greatly from one municipality to another, the evolution of the process has borne two significant governmental instruments common to most municipalities: the comprehensive plan and zoning.

The Comprehensive Plan

As a formal statement of the community's goals and objectives, the comprehensive plan (also commonly known as the "master plan") establishes policies and procedures relating to the community's future growth. The plan serves several purposes: defining a general pattern of projected land use for the community; recommending policies that alternatively encourage desired development or discourage inappropriate use or intensity of development; establishing and reinforcing community standards for appearance, design, delivery of public services and protection of the environment; and guiding the allocation of resources to be used for the provision and distribution of public facilities and services.

The overall objective of the plan is to establish a high quality of life for the residential and business communities. Its recommendations are based on extensive analysis of economic, social and demographic forces, as well as the collective input of public and private sectors. Because the plan attempts to provide a vision of the community--perhaps 10 to 20 years down the road--it provides valuable guidance for decision-making by local officials, land developers and business operators.

In a minority of states, the comprehensive plan is directive in nature, requiring conformance, and rises to the level of being "law." In most states, however, the plan is advisory in nature and not a legally binding regulation.

Zoning

Zoning is the tool of local governments used to control the physical development of land and the kinds of uses that will be permitted on each individual property. As an essential part of the urban-planning process, zoning aids in developing and maintaining a healthy community. Stable residential neighborhoods, convenient commercial districts and carefully developed industrial areas are the result of careful planning and sensible zoning regulations.

To provide a specific quality of life, zoning laws can be quite exact. They specify the areas in which residential, industrial, recreational or commercial activities may take place; restrict the uses that can be made of land and buildings; regulate the dimensional requirements for lots and buildings; control the density of development; and even allow or disallow the keeping of various animals and livestock. Some zoning ordinances regulate the extraction of natural resources from land within the zoned area, while others provide space for hospitals, parks, schools and open space.

There are zoning requirements that protect places of historical significance within a community and those that mandate aesthetics to retain a particular look to the community. Zoning is purely a county, city or municipal affair. It is not uncommon to find zoning rules that apply to one part of the community are different in another part of town. You may find that one town allows a mix of residential and commercial uses, but a neighboring community might outlaw zuch mixed use.

The official zoning map and the zoning ordinance are the legal instruments used to control the use of land. The map divides the city into multiple zoning districts, encompassing residential, commercial, industrial and several specialized districts. The ordinance provides specific regulations for each of these districts, spelling out the kinds of activities and development permitted, the size of buildings allowed, the required distances from lot lines for buildings and so forth.

Typically, the city council and the mayor enact and may amend the zoning ordinance and official map. The director of zoning or zoning administrator is charged with administration and enforcement of the ordinance, issuance of written interpretations of the ordinance, and review and decisions on site-plan review applications.

The city planning commission is responsible for approval of special permit and subdivision applications, and for reviewing and making recommendations to the city council about ordinance amendments, planned developments, map amendments (street abandonments, dedications, naming) and similar matters. The commission also decides appeals of site-plan review decisions by the director of zoning.

The zoning board of appeals is responsible for granting or denying variances from the requirements of the zoning ordinance and deciding appeals of decisions or determinations of the director of zoning on various matters.

A certificate of zoning compliance (CZC) is required to construct, reconstruct, remodel, alter or move any structure; to prepare land for development; and to change use or occupancy of a property. The CZC precedes a building permit and certificate of occupancy and follows any required special zoning approvals, such as variances and special permits.

Perhaps these two components of the municipal-use approval process are best thought of as the comprehensive plan being the "spirit of the law" while zoning comprises the "letter of the law." Each provides insight to the nature of the community and can provide valuable guidance in the development process.

The specifics of the plan and zoning regulations can only be known by a careful review of each. You may have the good fortune of finding a parcel of land that fits your needs perfectly and is already zoned to accommodate your planned development. However, as self-storage takes a more prominent, upscale place in communities across the country, it is more likely you will find sites that require a trip through the municipal-use approval process.

Usually, there is only one opportunity to secure approval, so you will want to make your first effort your best. Understand the process, then assemble a competent team of consultants to devise a thoughtful strategy. Create an impressive presentation, and the odds are in your favor!

Nicholas Jodhan has been involved in the development of self-storage for the past five years, designing and developing self-storage facilities in several major cities in the Midwest, Northeast and South. He continues to develop creative ways of addressing the new parameters of the modern self-storage industry. He recently launched Gemini Plus LLC, a full-service consulting complany. Mr. Jodhan can be reached at 941.366.9730 or ngj1@earthlink.net.

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