By: Zachary H. Brown, Esq.
Clark, Campbell, Lancaster & Munson, P.A.
Question: If I’m operating a business in a zoning district that my business is no longer eligible to operate in, what can I do?
Property owners have been experiencing issues revolving around zoning since the concept was first implemented in the 1920’s. For example, local governments have zoned property that was historically used for commercial or industrial purposes to something more in character with the surrounding neighborhood, such as residential or office. While some property owners thought that this was an overreach of governmental power, the Supreme Court of the United States ruled that local governments had this authority under the Constitution. Local governments now use this tool regularly to effectively plan their cities.
So, what are the options available to property owners whose ability to use the land has been severely limited as a result of a zoning change? One option available involves continuing to use the land under its current use under a common exemption that deems it “non-conforming.” Non- conforming uses are a way local governments “grandfather” in properties that no longer adhere to the local zoning regulations.
Non-conforming properties are typically properties that, at one time, were not prohibited under the zoning laws of whatever local government the property is situated in, but as zoning laws have changed the property can no longer operate as it has historically. In addition, “non-conforming” does not only apply to the use of the property itself, but also to structures and lot regulations that are associated with the property.
Local governments are wary of non-conforming uses because the property is being used in such a way that makes it inconsistent with the government’s planning purposes. As a result, many local governments will put caps on when a use can be discontinued and then continued again. For example, in the City of Lakeland if a property owner ceases operating a property as a non- conforming use for 365 days, then local law prohibits you from continuing the operation of that property as a non-conforming use. It is important that if the property owner is operating a business as a non-conforming use, that they continue to do so, or risk losing that prerogative indefinitely.
Local governments are also likely to place restrictions on non-conforming uses that limit the expansion of the structure or use that is deemed non-conforming. This is a result of the local government trying to keep the non-conforming use limited to what it was prior to the zoning change in hopes of discouraging expansion of that use, so as to fit the local government’s planning purposes. This is also included in the City of Lakeland’s Land Development Code, with the only exception to this being alterations to structures that are seen as maintenance or repair.
Conclusion: Local governments have become creative in the planning of municipalities, but sometimes this creativity comes at the expense of local property owners. If such a situation has come about, or if you are currently associated with a property that is non-conforming, the best course of action is to consult with a local attorney about your best options to maintain the property as it is and to keep the non-conforming designation.
Zach Brown is an attorney with the law firm Clark, Campbell, Lancaster & Munson, P.A. in Lakeland. Questions can be submitted to firstname.lastname@example.org.