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How to rezone residential property for more units

by Rebecca Renteria
(San Jose Ca)

Visitor Question: I have property which includes three rentals. The buildings are very old. I would like to tear them down and build 4-5 small efficiency apartments. The city said that that land was only zoned for 3 complexes. The land is around 1/4 of an acre and seems like it would handle more affordable, up to date living spaces for nearby college students and/or senior citizens. Can I get this property rezoned and who should I talk to or hire to help me with my dilemma?

Editors Respond: It is unclear to us whether these three rentals you now own are single-family homes or apartment buildings, each containing more than one housing unit.

We only bring that up because it has a bearing on how difficult it will be to obtain a rezoning. Neighbors are more likely to oppose multi-family buildings than single-family homes, although of course the details do matter and there is no guarantee either way.

Since you are in California, you may want to hire an attorney to help with this. Don't use a friend who is a divorce lawyer. Find someone who specializes in land use. If you don't know who that is, your local bar association may give you a referral.

If that doesn't work, go through the last six months or so of planning commission minutes and find out which attorneys spoke on behalf of people seeking or opposing a rezoning. You probably would find some repetition of the same attorneys, and that is the one you want.

Of course the expense of an attorney is better justified if you are thinking of replacing three multi-unit buildings with four or five multi-unit buildings, rather than single-family homes.

Also you may want to check to see how common it is in your particular city to have an attorney represent you at hearings. Where some people speak for themselves at public hearings, you may want to consider whether you can handle it on your own. Our best advice is that if almost everyone seeking a rezoning has an attorney speak for them, you should probably do the same, since otherwise the plan commission and city council people may view you as an uninformed amateur who can't handle the project.

City staff may be able to offer you more information and hints about the process than they have shown so far. Be friendly, fair, and courteous with them, and often they will give you some useful off-the-cuff advice. From their perspective, they don't want you to accuse them of not disclosing relevant information, so take advantage of that fact. They may even have a handout for rezoning applicants, explaining the process.

Before filing for rezoning, which no doubt will carry a sometimes hefty application fee in the high hundreds of dollars, you may want to consider possible opposition. What neighbors might object, and what would their main arguments be? If you know any of the neighbors, feel free to talk with them in advance to sound out whether they might become opponents.

Having opposition doesn't necessarily mean that you won't get the rezoning. It just signals that this process might not be easy. The more opposition, the more you will possibly have to pay your attorney, as the chance for delays and continuations of public hearings goes up when a neighborhood association or community group organizes against something. Delays may mean multiple meetings in front of either the planning commission, city council, or both.

Another thing to do is to consult your city's comprehensive plan to see how the city looked at future land use in your area. The plan's map and goals may be online; if not you will have to visit city hall. If your ideas would dovetail nicely with the city's plans, that is a real bonus in your quest for rezoning. If not, consider carefully how likely your particular city is to follow their own comprehensive plan. Some cities are rigorous about conformity to the plan, and others are more lax. In theory, just about everywhere in the U.S., laws say that rezoning should conform to the comprehensive plan, but there are numerous ways that cities can and do argue against strict conformity to a map.

For more good information about zoning, if you aren't very familiar with it, check out our page on zoning regulations. Also we have a page on how to oppose a rezoning, which would give you some ideas on what any opposition might say or do.

You may have read these already, but other readers perhaps have not noticed.

Good luck to you.

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