Rezoning happens during construction

Visitor Question: What are the options of a developer of an apartment building under construction and the zoning changes to single family houses?

Editors Reply: We interpret your question to mean that the zoning of the land where apartment construction is occurring was changed during the time that the apartments are under construction. We further are understanding the question to say that the property was rezoned to a single-family district.

The implication is that you are worried that the apartment building will no longer be permitted. Or possibly, you are a neighbor who hates the idea of the apartments, and you are hoping that the apartment building will not be allowed to finish construction. Either way, here is what we think.

Every city, town, village, township, and county that has a zoning ordinance has its own slight variations, so you will not know for sure until you read the actual ordinance. That is easier than it sounds, since many are online now and can be read without having to buy a printed ordinance during regular business hours.

However, here is our best answer based on the overwhelming custom in the U.S. Typically after a building permit has been issued, the structure can continue to be built regardless of any subsequent changes in zoning district or regulations. Issuance of a building permit does not occur until the builder shows that zoning requirements are met.

Note that the relevant date is when the building permit was issued, not the date that actual construction began. Sometimes it might be several weeks after a building permit is issued before you see earth being moved, but that is irrelevant to zoning matters.

Your also may be wondering about whether the apartment building becomes a nonconforming use immediately upon construction. For those who do not know this term, a nonconforming use is a land use that does not meet the current zoning requirements, even if it met all zoning requirements when it was built.

Although this too depends on the exact wording of the zoning ordinance, it seems likely that the apartment building will be nonconforming even while construction is finishing up. A nonconforming use typically cannot be rebuilt if it destroyed by fire or weather beyond a certain percentage. A nonconforming use cannot be expanded or even rebuilt in exactly the same footprint.

For the developer, owning a nonconforming use can have implications for everything from insurance to mortgages to property value.

So if you are asking us this question because you are the builder, you need to find out who or what was behind this zoning move. Once you determine the facts, you might be able to file a lawsuit seeking either to have the zoning decision reversed or seeking monetary damages. If you are considering this route, choose the most experience land use law attorney that you can find. In many jurisdictions, courts follow the presumption of validity concept, in which a court basically assumes that what the legislative branch of a government does is for the public good and therefore a legal land use regulation. So it is an uphill battle.

On the other hand, governments that are sloppy in their handling of zoning matters are increasingly vulnerable to losing zoning lawsuits, so this is why we suggest a highly experienced real estate or land use attorney.

By the way, in almost all jurisdictions, there is nothing stopping you from turning right around and filing a petition to rezone the property to something that would allow the apartment building "as of right." Assess your chances of success by engaging in a few informal conversations with members of the governing body. Look at meeting minutes to see if there was organized support for the rezoning by a group that would likely oppose your request to zone it back to the original district. If you think you might succeed, that may well be a better, faster, less expensive option than filing a suit.

The other possibility is that you are not the builder. If you are a neighbor or neighborhood group who thinks you can stop construction because the zoning was changed, you are very likely to be disappointed. You may hem in the developer from expansion, but you will not halt construction in any jurisdiction of which we are aware.

If by chance you are involved in the government that did this rezoning, you need to try to be more careful about creating this type of situation. This is difficult for all concerned and certainly will cause developers to be distrustful of your government. If a government was trying to prevent the apartment building but just did not move quickly enough to change the zoning, then that becomes a lesson for all the surrounding local governments to become proactive about downzoning when full build-out as allowed under the zoning ordinance would be undesirable.

Again we caution that our answer is based on common practice in the U.S. Your local zoning ordinance could always say something different, so check that carefully.

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