Tips for a Successful Rezoning

Often times, new and/or inexperienced real estate investors will purchase a piece of real estate with the thought that the property can be easily rezoned to accomplish whatever new development the investor desires.  Unfortunately, people come to the quick understanding that securing a successful property rezoning is anything but a simple process, and not all applications will be approved.  Many considerations are made by the governing municipality when faced with a rezoning application, and the applicant needs to be aware of these considerations in order to effectively prosecute the rezoning.

Zoning Laws in General

Zoning laws serve as development restrictions that place specific development requirements and regulations on properties throughout a municipality.  Chapter 166, Florida Statutes provides municipalities with broad powers to adopt zoning regulations, which set regulations for how properties can be developed and for what specific uses.  Zoning laws are in place to regulate land uses in the municipality to serve the health, safety, and general welfare of the public.  Chapter 163.3194, Florida Statutes provides that zoning regulations set by the municipality must be consistent with the future land use element of the city’s or county’s comprehensive plan, which serves as the city’s or county’s constitution for purposes of future land development and use.  Any change or rezoning to these set zoning regulations requires significant oversight by the municipality’s planning and zoning staff and elected officials.

The Standard of Review for Rezoning

A rezoning is a legislative process that is governed and controlled by local governments, primarily counties and cities.  Rezonings are conducted under a two-step standard of review:  First, a landowner seeking to rezone property has the burden of proving that the application for rezoning is consistent with the comprehensive plan and complies with all of the procedural requirements of the zoning ordinance.  Second, the burden then shifts to the municipality to demonstrate that maintaining the existing zoning classification with respect to the property accomplishes a legitimate public purpose.  Brevard County v. Snyder, 627 So.2d 469 (Fla. 1993).  Under this standard, a municipality can deny an application for rezoning if there is any legitimate public purpose supporting the denial.  Id.

Chapter 163.3194(3) describes consistency with the comprehensive plan as follows:

“A development order of land development regulation shall be consistent with the comprehensive plan if the land uses, densities or intensities, and other aspects of development permitted by such order or regulation are compatible with and further the objectives, policies, land uses, and densities or intensities in the comprehensive plan, and if it meets all other criteria enumerated by the local government.”

Simply put, the proposed rezoning and associated development cannot wildly stray from what is established by the comprehensive plan.  For example, it would be unlikely for a local government to approve the rezoning of a parcel from residential to commercial for a new commercial retail center if the comprehensive plan calls for residential use and all of the surrounding properties are zoned residential.  

Florida law has also weighed in on what constitutes a “legitimate public purpose” should the local government consider a denial of the rezoning application.  A legitimate public purpose can include general public health, safety and welfare issues such as traffic safety concerns, neighborhood compatibility, burdens on infrastructure, impacts on the local environment, and impacts to public health and welfare.    See Snyder.  If the rezoning proposal places a 300-unit apartment complex on a two-lane road with no traffic lights, this could potentially cause infrastructure concerns leading to a denial.  Furthermore, the local municipality must show that the denial of a rezoning application is not arbitrary, discriminatory, or unreasonable.  Id.

With this two-prong standard of review in mind, you should take careful consideration of the plan for development and whether the intended proposal actually meets the required criteria.  Some projects can have some high hurdles to clear if the proper due diligence is not done in advance.

Plan for Objections 

Provided you’ve complied with the standard of review above, you can always count on objections either from the municipality zoning staff, the general public, or both.  Staff objections will be provided in writing during the initial submittal and review process.  This allows you time to work with your engineer and zoning staff to address any issues or objections that staff may have with the application.  Best case scenario, you will have most if not all of the staff objections resolved before the application is set for public hearing.

Prior to the public hearing, notice of the application for rezoning will be posted at the property.  Property owners within a certain radius from the site will also receive notice of the public hearing in the mail.  The notice provides the neighbors and general public the right to appear at the public hearing to voice any concerns or objections with the application for rezoning.  It should be emphasized that the municipal board, whether it be city council or a board of county commissioners, will pay very close attention to any public objections with merit.  These objections have the potential of swaying the opinions of the elected officials casting the vote to approve or deny the application.  It is critical that you counter each objection at the public hearing with facts about the project to further support your objectives.

As a tip, it can help to schedule a public meeting with the neighbors in advance of the hearing in order to field any objections they may have with the project.  This will also allow you the chance to explain the benefit of the proposed development to the neighbors because new development often comes with a negative perception.

Finally, you are more than able to schedule meetings with the city council members or county commissioners to discuss the project in advance.  It gives these elected officials more insight into the project and, again, highlights the benefits of same.  The elected officials will have to disclose this ex parte communication at the hearing, but there is nothing inappropriate about having these conversations in advance.

Conclusion 

As provided herein, rezonings are complicated and time consuming.  The amount of research and work that goes into an application is considerable.  Public hearings on the application can be filled with animosity depending on the project and whether you’ve softened the blow of the proposed development with the neighbors.  As always, it is highly recommended that you consult with an experienced land use and zoning attorney prior to moving forward with any rezoning application.