Zoning disputes occur for many reasons. You might seek a building permit and discover that your plans do not meet the zoning regulations. Or a neighbor might give you a friendly — or not-so-friendly — warning that your building violates zoning.
But the worst-case scenario happens when you receive a notice from the local zoning commission. This might come from a complaint or an inspection that revealed a zoning violation. As a result, you may end up in a zoning dispute before the commission.
How Zoning Disputes Usually Arise
Zoning disputes rarely involve private actions. New York law prevents the general public from filing lawsuits to enforce zoning disputes. Instead, it allows only people who have suffered specific, identifiable harm from a zoning violation to file a lawsuit.
A zoning dispute is much more likely to arise in an enforcement action by the local zoning commission or board. You will receive a notice that you have violated zoning laws. Your lawyer will analyze the alleged violation and the property or building in dispute.
Based on this analysis, your lawyer will advise you about the strength of the case and the options you have for dealing with it.
Resolving a Zoning Dispute
Sometimes you can adjust your plans to comply with the zoning laws. For example, if you poured concrete but have not yet built any structure on it, you may choose to jackhammer the concrete and start over to avoid the dispute.
In many situations, you can apply for a variance even after receiving a citation or a violation notice. A variance is an official blessing from the planning commission to build something that would otherwise violate zoning laws. If this is granted, you will not face any future violations, although the commission might still penalize your past violation.
You can also challenge the violation or citation. Maybe the commission got the facts wrong and said you violated a zoning law when you did not. Or perhaps the commission misinterpreted its zoning regulations. In either case, a lawyer can assemble the arguments and facts to challenge the commission’s action.
Common Zoning Disputes
Zoning laws get into some very detailed aspects of land use. Some common zoning violations and disputes include:
1. Variance Terms
Suppose that you foresaw a potential zoning issue and secured a variance. The commission expects you to abide by the exact terms set in the variance. If you violate them, the commission can cite you for a violation. You can avoid these disputes by reviewing the terms of the variance with your lawyer after obtaining it.
2. Nonconforming Use
Use restrictions tell you what can or cannot be located on land. Areas zoned for residential use typically cannot have commercial buildings and vice versa. You can avoid these violations by having a lawyer research the zoning before you pick a location.
3. Setbacks and Buffers
You must keep structures a certain distance away from the property lines and street. Careless planning or construction can result in a setback or buffer violation. You can avoid these violations by hiring an architect and a contractor who know local zoning laws. And if their plans violate zoning, you can avoid a dispute by obtaining a variance.
4. Density
Density refers to a type of residential building. Some areas do not allow multi-family housing like duplexes or apartment buildings. You can avoid density zoning violations by hiring a lawyer to review zoning laws before picking a location.
5. Zoning Changes
Zoning laws can change during your project. A permitted use at the beginning might no longer be allowed when you finish construction. To avoid these inadvertent violations, you need a lawyer to keep up with zoning law changes and apply for a variance if a change results in a violation.
Avoiding Zoning Disputes
The key to avoiding zoning disputes is to assemble a team with zoning compliance as its goal. Together you can minimize the risk of violating zoning laws.
To discuss your project and how you can avoid or address zoning disputes, contact Levy Goldenberg, a real estate litigation firm in New York, NY.