What Are the Development Restrictions Applicable to My Zoning District and Can They Be Waived?

Land use and zoning lawyers commonly with real estate investors, developers, and homebuyers who purchase real estate looking to either add on to the existing structural improvements on the property or redesign the use of the property, tear down the existing structure, and build brand new. It is natural to be excited about the opportunities that owning a new piece of real estate can offer while figuring out how to maximize the profitability of the property.  However, before you turn your architect and engineer loose on the site plan for your new project, it is crucial to understand what development restrictions apply to your specific zoning designation.  You could wind up spending thousands of dollars designing an exciting new project only to have your construction permits delayed or denied because the site plan submitted does not conform with the zoning requirements for that specific property.

General Zoning Restrictions

In Florida each county enacts its own zoning laws to promote the health, safety, morals, and general welfare of the public and to regulate the use of land and buildings throughout each county.  Zoning designations are comprised of residential, commercial, industrial, and agricultural districts that have been set forth by each county as it deems fit for the best use of county property.  Zoning districts regulate, among other things, (i) the size of the property, (ii) the use of the property, (ii) building height restrictions, (iii) how far structures must be set back from other parcels, and (iv) the maximum allowable lot coverage by all buildings and structures on the property.  These restrictions are set forth to harmonize the development of properties in each zoning district for conformity with surrounding properties.

When purchasing a property, it is critical that you confirm which zoning district the property is located in so that you can ensure the proposed us of the property is allowable.  This is typically less of a problem when purchasing residential property, but commercial property uses can be highly regulated based on zoning.  As an example, a common investment vehicle for commercial property owners are warehouses. However, in many counties in Florida, warehouses are commonly restricted to industrial zoning districts rather than commercial districts, generally.  If you are setting out to acquire commercial property for warehouse space, and you fail to confirm warehouses are an allowable use for that property, you could wind up owning a piece of land that cannot be developed as intended.  This can potentially cause financial strain in developing and designing a new intended use for the property.  Each county has its own zoning code that is easily accessible online, which sets for the criteria for development in each district.  However,it is generally recommended—especially when purchasing commercial property—that you contact an experienced real estate attorney to assist in navigating the zoning code to ensure the property is developable as intended.

Can the Zoning Restrictions Be Waived?

Each county sets specific procedures for seeking waivers of the zoning code.  These are often complicated and thorough applications referred to as variances, exceptions, or deviations.  The applications often require surveys, proof of ownership, site plans for development professionally drawn to scale, and written narratives explaining why the proposed waiver should be granted and why it is in conformity with the specific county’s zoning requirements.  As an example, in Duval County, where our main office is located, the Duval County Zoning Code allows for Zoning Exceptions specifically for the use of the property, and is defined in Chapter 656.1601 as:

“(a) use that would not be appropriate generally or without restriction throughout the zoning district but which, if controlled as to number, area, location or relation to the neighborhood, could promote the public health, safety, welfare, morals, order, comfort, convenience, appearance, prosperity or general welfare. Such uses may be permissible in the zoning district as exceptions if specific provision for the exception is made in the Zoning Code and the uses are found by the (Planning) Commission and the (City) Council to be in conformity with the standards and criteria set forth in the Zoning Code.”

Simply put, having a Zoning Exception granted is not as simple as filling out the online application and waiting for approval.  It is a significant undertaking that requires county officials and staff to consider the extent of the exception being requested.

Along those same lines, Duval County also allows property owners to apply for an Administrative Deviation (also known as a “variance” in other counties in Florida) for site plans that do not fit the lot requirements for the property.  Chapter 656.1601 of the Duval County Zoning Code defines an Administrative Deviation as:

“(a) relaxation of the following Zoning Code requirements: minimum lot area, required yards, increase the maximum number of parking spaces allowed so long as the landscaping is not also reduced and a professional study is performed and approved by the (Planning) Department, minimum number of required off-street parking spaces, minimum landscaping requirements, maximum lot coverage and maximum height of structures, including fences, that the Zoning Administrator is authorized to grant pursuant to the procedures set forth in the Zoning Code.”

Again, seeking an Administrative Deviation (or variance) in any county must be carefully planned with the consideration of the effect on the proposed development on the surrounding properties.  County officials and zoning staff will look to see whether what is being applied for fits within the characteristics of the surrounding properties.  If it does not, then it will be an uphill climb to have the application granted.

Conclusion 

As detailed within this blog, you can understand why confirming the zoning district of property that is being sought for purchase and development is a crucial step in the due diligence process.  Not only do you want to make sure you can develop the property for your intended use, but you also want to make sure that your site plan fits within the scope of the lot requirements for that zoning district.  Additionally, should you seek a waiver to the zoning code for use or improvement of the property, it is important to follow the respective county procedure outlined in the county’s zoning code.  As always, should you have questions or concerns about zoning or seeking waivers for your intended development, I strongly recommend contacting a local real estate land use attorney to guide you through the process.