Stopping an unwanted business

Visitor Question: I live in a small rural village. The downtown area is a mix of small businesses and residential.

There is a developer who wants to put a private drug rehabilitation center in an existing building downtown. The building is currently mixed use, business on the first floor, residence on the second and third.

There are several businesses which serve a customer base that is largely geared toward children: Martial Arts School, Music School, Ice Cream Shop, etc.

The community does not want this business in the proximity of downtown, but there is no actual zoning restriction against this type of business assuming it conforms to all other zoning requirements. Is there a legal way in which to stop this business from locating there?

Editors' Reply:

You have a real problem on your hands because the law that is mostly commonly used to "stop unwanted businesses," as you say, is zoning.

It appears that you have a zoning ordinance in your village but that the drug rehab business falls under a category that is a permitted use.

You (and I do mean a collective "you" here--you and your neighbors and friends) could try a few things right away, if they apply:

1. If the sale of the building to the developer or someone associated with the business hasn't been completed, you may still have time to find a different buyer, persuade the existing owner not to sell, or persuade the developer to make a profit some other way.

We're using the term persuade quite deliberately. Usually in a case such as this, impersonal communication will not be effective. You're going to have to engage in personal negotiation if this strategy has any hope of working.

Even then, it is usually a long shot, but it also is worth a try. Occasionally a community will slow down a process enough, cause enough inconvenience through frequent requests for meeting, and so forth that the developer works on something else.

2. In the possibly more likely event that a sale already has taken place, or a lease has been finalized, this becomes much trickier legally. Your village government probably won't want to get involved, due to a legitimate fear of being sued.

You didn't tell us where you are (which is fine), but you will certainly need to consult an attorney if a sale has already been completed. This is because different states and localities have different legal precedents about when a property interest in "vested," or considered an investment that a local government cannot stop without the action being considered a taking of property rights. (If it is a taking, the property owner is entitled to compensation under the U.S. Constitution.)

Even if a sale has taken place, you can still try persuasion as outlined in number 1 above, but of course it's going to be more difficult.

3. If you think the village's interpretation of the zoning ordinance is flawed, you may be able to file a case with a board of adjustment (zoning board of appeals or some similar name in some places) to appeal an "administrative decision." Don't expect that the board is going to side with you, but sometimes in the case of community outrage, this will work.

But this is worth a try only if it is pretty clear from reading the actual zoning ordinance that someone at the village is making the wrong interpretation.

We wish we had much better news for you. I can understand the concern, especially with young customers around.

Even if all these measures fail, you can always try to work with the developer or the operator of the treatment facility to assures that operations minimize the impact on the surrounding buildings.

If this is to be a residential facility, sometimes community fears are exaggerated. But if it is the type of treatment program in which participants come and go for an hour or two at a time, that is a different story, and something that most communities fight.

Keep working with your elected officials and keep trying your powers of persuasion!

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