Minimum hours of operation in commercial zone

by John
(New Mexico)

Visitor Question: I live in a town that has a lot of vacant buildings in the historic downtown core. It is zoned commercial but because rents are so low, some storefronts (through special use permits) are used as storage units, or residences, and are never open to the public with any sort of business.

Can a city, through zoning, legally require a tenant/owner maintain a minimum number of hours during which they are open to the public for commerce? Are there examples?

Editors Reply: As happens sometimes when looking for examples, we can't see a single one in our files. But we have a suggested approach to this.

Rather than requiring a minimum number of open hours as a standalone provision in a particular zoning district, we suggest tackling this problem through the definitions section of the zoning ordinance and then through the list of permitted and conditional uses in the particular district that covers your historic downtown.

As an aside, you could create and then map a zoning district that only pertains to your downtown, if that helps you in this instance.

In concept, your definition(s) of a commercial establishment should be so tight that residential use is not allowed. The definitions section also can effectively rule out using a storefront as a storage unit by saying that storage incidental to a commercial use cannot consume more than a specified percentage of the floor area or cubic volume of the space. Commonly, your definition of a commercial land use would say something about storage for inventory typically needed for the particular type of business. Write that very tightly, and it will help with the storage unit issue.

Play around with that approach and see if it will help you address your particular situations.

However, you seem to be saying that you have special use permits in place that allow the storage and residential uses. If so, are there any expiration dates on these permits? (Usually there are not, but you might be lucky.) If people are lawfully taking advantage of their special use permits, now you have a larger problem that might involve rezoning the area.

Be aware that the city can initiate a rezoning on its own. Typically this happens at the suggestion of the planning commission, historic commission, or a business district or association. Of course the people who are misusing the space right now will complain loudly, and that is their right. However, if you write a very sound rationale as to why you want storefronts, offices, services, restaurants, and whatever it is you would like to see in your vacant and under-utilized buildings, it should stand up in court.

If you decide to explore the rezoning approach, look through other zoning districts to see if any of them better fit the appropriate mix of uses for an historic downtown. We suspect probably not, but again you might be lucky.

If there is not a different zoning district on the books that would bring a more desirable mix of land uses, you now need to contemplate creating a brand new district. Work with your planning commission and city attorney to craft the appropriate language and list of uses, and think carefully about possible legal challenges. This is why it is important to have either a recent comprehensive plan, downtown plan, historic district designation, or other planning document to back up the city's position.

After the city council establishes the new district regulations by way of amending the zoning ordinance to add that district, then your city is in a position to go back and initiate the rezoning of the area where you want to impose the new zoning district.

There are some wrinkles on this approach that might work too. If you have any other overlay zones in your district, it may be feasible to write a downtown historic district overlay and impose that over the relevant geography. (An overlay zone means that the underlying zoning remains in place but that there are additional regulations that pertain in a specific mapped part of the district.)

Another possibility is a form-based code, although generally this works better for places that wish to expand the types of uses they are seeing, rather than contracting the variety of uses.

Lastly, if you don't have a local historic district, definitely look into that as a substitute for or addition to the zoning approach to encouraging desirable land uses in your downtown.

Incidentally, if you want to implement any of these recommendations, try to line up real businesspersons in the community to endorse the proposal. You don't want business groups to mount an opposition campaign based on fear of the unknown, so do the work of convincing them that these moves are pro-business before you advance to public comment.

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