Developing Land Without Subdividing
Broadly defined, “developing” is adding value to a land parcel by making some change to it. The value is increased because the change (whatever it is) expands the market for the property by enabling it to be used by additional categories of buyers. You can develop by effecting some visible transformation, such as adding, modifying or removing structures, and you can be a developer by doing something invisible to the parcel. Subdividing is one method, but there are other alternatives. You may be able to broaden the potential uses for the parcel or obtain an outright change of zoning classification for it.
Special Uses
For each district, the zoning ordinance specifies different categories of uses: those permitted by right or automatically, and others that are allowed only when certain conditions are met. For example, one zoning classification permits single-family dwellings and agriculture as by-right uses. Uses allowed by special exception include places of public worship, educational and day care facilities, and golf courses. To get a special exception, you would have to demonstrate to the municipal zoning board that your use falls within those defined in the ordinance and that it also complies with any requirements specific to that use, such as minimum tract size or building and impervious coverage. Special exceptions can be called conditional uses where it’s the municipal governing body and not the zoning hearing board that has the right to decide the use application.
Change of Zoning
Rezoning a parcel can be a major undertaking that involves much time, effort and money, but a different classification could significantly increase the value of the parcel. Generally, only the municipal governing body has the power to rezone property, and state law usually requires that public hearings be held after notice is given. In some states, laws require local governments to zone property consistent with their comprehensive or master land use plans. Absent such a law or a court order, however, the municipality may not be required to amend its zoning ordinance.
To avoid charges of illegal “spot zoning” (rezoning one parcel to permit uses different from and inconsistent with those of adjacent properties), any change in zoning might also have to apply to neighboring parcels. Picture three contiguous parcels (A, B and C). Parcel A is on the corner of two busy streets and has been developed into townhouses. On the far side of Parcel C, the road bridges an expressway below. Parcel B in the middle (the one you want to get changed to office use) is zoned for single-family detached housing. Parcel C, zoned the same as B, is separated from other properties by the bridge. If the municipality agrees to rezone Parcel B, it would also apply the change to Parcel C.
Variance
The use of a parcel can be changed by variance, although variances tend to be granted more frequently when some physical characteristic of the parcel makes it impossible to comply with some aspect of the zoning ordinance without resulting in an unreasonable hardship. In essence, a variance is permission to violate some zoning ordinance requirement. For example, suppose a stream cuts diagonally through a vacant lot and the owner wants to build a home. The zoning board would probably expand the building envelope (the area on the lot within which the structure could be built) by allowing a “violation” of building setbacks so that the home could be constructed away from the stream.
A use variance allows a particular parcel to be used for some purpose in addition to the uses already permitted under that zoning district. This type of variance doesn’t change the underlying zoning classification of the property and wouldn’t necessarily extend to adjoining parcels. In the above example of Parcels A, B and C, you might apply for a use variance of Parcel B instead of asking for a rezoning so that it could be developed into office space. If you were successful, Parcel B would still retain its original zoning classification and could be used for single-family housing but now an office use would also be permitted. The zoning board would likely condition the granting of the variance on satisfying certain requirements, such as the maximum amount of office space that could be developed, the number of parking spaces, and the amount of green or open space to be preserved.
A use variance might be easier to “sell” to the municipality because it doesn’t require an actual amendment to the zoning map and ordinance. It may be a way for the municipality to allow a use that makes sense in a particular situation without it having to make changes that apply to additional properties.
At last, there is a resource for people interested in buying or selling land. Check out Nancy Chadwick’s real estate investing and land development guides, articles and books at http://www.LandBuyingandSelling.com/
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