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Rezoning from business to residential

by A
(South Carolina)

Visitor Question: A friend inherited an office from her father. She has been renting it to an attorney. It is located in a residential area, but has been a business for 50 years. She has just been informed by a real estate agent that the town changed the zoning to residential. The rooms have no closets and there is no kitchen. Can they do this?

Editors Reply: Yes, in fact the town has the right to rezone property without the owner's consent. If it was a large-scale rezoning or one that occurred as part of an update of a comprehensive plan, many city attorneys will advise that an individual notice to the property owner is not required. If this was a rezoning of a single piece of property, though, the property owner certainly should have received notice as a matter of good practice.

So at this stage your friend and other heirs now own a piece of property that is nonconforming to the zoning ordinance. Almost everywhere, nonconforming uses are "grandfathered," meaning that the use can continue as long as there is no break in the current use. But a grandfathered use typically cannot be expanded or cannot be rebuilt if it is destroyed.

As a generalization, commercial property commands a higher property value than residential property, so your friend and her family are suffering financially as well.

However, having said all this, if the town has solid, planning-based reasoning behind this action, your friend does not have legal recourse for any loss in property value or for the fact that the existing use now has become nonconforming.

"Planning-based reasoning" would usually be shown by having a good logical land use pattern. For instance, if your friend's building lies among other residences and is the only business in the area, that would be good enough reasoning for most courts to uphold the action.

But the most compelling reasoning a town could show would be based on their comprehensive plan, sometimes called a master plan. A good comprehensive plan sets forth a rationale for zoning, and almost all states require that zoning be undertaken "in accordance with the comprehensive plan." So if a future land use map in a long-range master plan for the town shows the entire area as residential, that is reason enough for the town to undertake this downzoning from commercial to residential.

As a first course of action, your friend should talk with elected officials or staff of the town to find out when this rezoning action was taken and what rationale was given at the time. These conversations also should shed some light on whether the town would be at all receptive to a petition from your friend to rezone the property back to commercial.

If the real estate agent is advising that the difference between the value of the property as a residential property and a commercial property is huge, your friend might want to consider suing. However, this option should be investigated with an attorney who has a great deal of expertise in land use. Don't use a brother-in-law or someone who files civil suits.

The actual characteristics of the building really do not enter into zoning decisions, which are aimed solely at land use. So the lack of closets or a kitchen are not relevant as to whether this particular action of the town is appropriate. We know that doesn't necessarily square with common sense, but that's the way it is.

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Judicial Review
by: patricia moon

Visitor Comment: I have a similar situation, which involves a residence that was given permission to hold Bible studies, then turned into a small church that then added a daycare and is now a K-12, and I never had a congregation to begin with. So, you see why the town may have reasoning behind their action.

However, if no one has complained to zoning or code enforcement, you might apply for a conditional use to continue the use with conditions such as days of operation, parking requirements, etc.

There is something called a Judicial Review, where the decision to down zone your property is examined for legal procedure and correctness, but I personally feel that your future land use map will reveal the area to be considered residential. But, if you are not considered to be single family use, in a Low intense future land use designation, then you have a good chance to use the property as a home occupation, or perhaps a conditional use with permission from all your neighbors. If you are in a subdivision, every neighbor must agree, not just those affected. You see, the traffic of clients is the real issue, so keep that in mind. You may consider using the home as an office/efficiently living quarters for a disabled veteran and may have success with the request for a conditional use. Every town has procedures for the conditional use zoning. Good luck.

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