Skip to main content

Real estate zoning laws

Zoning laws are rules that limit how a particular property may be used. For example, as single-family homes, multi-family buildings, commercial, or industry.

Brian Welch Keatts | Sep 6, 2019

Navigating Green Acres Restrictions: Mitigating the Impact on Utility and Development Projects

How to mitigate the Impact on Utility and Development Projects? A comprehensive understanding of New Jersey’s environmental regulations and property restrictions is required to avoid potential pitfalls and successfully complete utility and development projects involving New Jersey’s open spaces. What is the greatest challenge in utility and development projects? Our more than 30 years’ experience advising major interstate pipeline companies and other clients on planning utility and development projects have revealed that one of the principal challenges they face is identifying Green Acres-restricted land. Is Recreation and Open Space Inventory (ROSI) sufficient for identifying Green Acres restricted land No. Checking the ROSI, the NJDEP’s master list of Green Acres-encumbered properties in each municipality, is only the first step in the jurisdictional determination process. In some cases, there are unfunded parcels not listed on a local unit’s ROSI. For example, we identified a “Drainage and Conservation Easement” shown on a filed map in connection with a privately-owned parcel. The Township took the position that it held the easement and that it was Green Acres restricted. What about property restrictions? It is important to identify all property restrictions as early as possible in the Project planning process so that Project delays can be avoided. Our firm typically performs a jurisdictional review of each parcel crossed by a Project so that all property restrictions, easements, and encumbrances are identified as well as all applicable regulatory processes. This process can take six months or more to complete. In addition to Green Acres restrictions and encumbrances, we look for farmland deeds of easements, NJDEP (LURP) easements, and interests in property held by federal agencies such as the National Park Service and easements that are a result of joint projects between NJDEP and US Army Corps of Engineers (USACE) such as the Passaic River Preservation of Natural Storage Areas (“PNSA”) Project. We also check for Deeds of Easement conveying development rights and creating preserved farms. Are there multiple steps in the diversion process? The Green Acres diversion process has multiple steps, including two local hearings as well as approvals from the Commissioner of the NJDEP and the New Jersey State House Commission. When there is a Green Acres conservation easement, we know how to streamline the diversion process and the restriction release process so that the project can be constructed on time. Should my firm go through the diversion process? Yes. While the intentionally strict rules discourage diversions, we believe it’s always preferable to go through the diversion process to acquire the property rights needed for a Project. Throughout our decades of experience with environmental and development regulations, we repeatedly have seen uniquely challenging situations and issues arise. Successful outcomes depend on legal professionals who understand New Jersey’s property restrictions and know what’s required to navigate the various statutory and regulatory processes. What about other property restrictions? It is important to identify all property restrictions as early as possible in the Project planning process so that Project delays can be avoided. Our firm typically performs a jurisdictional review of each parcel crossed by a Project so that all property restrictions, easements, and encumbrances are identified as well as all applicable regulatory processes. This process can take six months or more to complete. In addition to Green Acres restrictions and encumbrances, we look for farmland deeds of easements, NJDEP (LURP) easements, and interests in property held by federal agencies such as the National Park Service and easements that are a result of joint projects between NJDEP and US Army Corps of Engineers (USACE) such as the Passaic River Preservation of Natural Storage Areas (“PNSA”) Project. We also check for Deeds of Easement conveying development rights and creating preserved farms.

Christine A Roy | Aug 17, 2019

Navigating Green Acres Restrictions: Mitigating the Impact on Utility and Development Projects

How to mitigate the Impact on Utility and Development Projects? A comprehensive understanding of New Jersey’s environmental regulations and property restrictions is required to avoid potential pitfalls and successfully complete utility and development projects involving New Jersey’s open spaces. What is the greatest challenge in utility and development projects? Our more than 30 years’ experience advising major interstate pipeline companies and other clients on planning utility and development projects have revealed that one of the principal challenges they face is identifying Green Acres-restricted land. Is Recreation and Open Space Inventory (ROSI) sufficient for identifying Green Acres restricted land No. Checking the ROSI, the NJDEP’s master list of Green Acres-encumbered properties in each municipality, is only the first step in the jurisdictional determination process. In some cases, there are unfunded parcels not listed on a local unit’s ROSI. For example, we identified a “Drainage and Conservation Easement” shown on a filed map in connection with a privately-owned parcel. The Township took the position that it held the easement and that it was Green Acres restricted. What about property restrictions? It is important to identify all property restrictions as early as possible in the Project planning process so that Project delays can be avoided. Our firm typically performs a jurisdictional review of each parcel crossed by a Project so that all property restrictions, easements, and encumbrances are identified as well as all applicable regulatory processes. This process can take six months or more to complete. In addition to Green Acres restrictions and encumbrances, we look for farmland deeds of easements, NJDEP (LURP) easements, and interests in property held by federal agencies such as the National Park Service and easements that are a result of joint projects between NJDEP and US Army Corps of Engineers (USACE) such as the Passaic River Preservation of Natural Storage Areas (“PNSA”) Project. We also check for Deeds of Easement conveying development rights and creating preserved farms. Are there multiple steps in the diversion process? The Green Acres diversion process has multiple steps, including two local hearings as well as approvals from the Commissioner of the NJDEP and the New Jersey State House Commission. When there is a Green Acres conservation easement, we know how to streamline the diversion process and the restriction release process so that the project can be constructed on time. Should my firm go through the diversion process? Yes. While the intentionally strict rules discourage diversions, we believe it’s always preferable to go through the diversion process to acquire the property rights needed for a Project. Throughout our decades of experience with environmental and development regulations, we repeatedly have seen uniquely challenging situations and issues arise. Successful outcomes depend on legal professionals who understand New Jersey’s property restrictions and know what’s required to navigate the various statutory and regulatory processes. What about other property restrictions? It is important to identify all property restrictions as early as possible in the Project planning process so that Project delays can be avoided. Our firm typically performs a jurisdictional review of each parcel crossed by a Project so that all property restrictions, easements, and encumbrances are identified as well as all applicable regulatory processes. This process can take six months or more to complete. In addition to Green Acres restrictions and encumbrances, we look for farmland deeds of easements, NJDEP (LURP) easements, and interests in property held by federal agencies such as the National Park Service and easements that are a result of joint projects between NJDEP and US Army Corps of Engineers (USACE) such as the Passaic River Preservation of Natural Storage Areas (“PNSA”) Project. We also check for Deeds of Easement conveying development rights and creating preserved farms.

Christine A Roy | Aug 17, 2019

Streamlining the Land Use Permitting Process

Is it possible to streamline the land use permitting process? In 2015, the New Jersey Department of Environmental Protection (NJDEP) began streamlining land use permitting programs administered by the Division of Land Use Regulation, including two areas that impact the ability to apply for and obtain permits. Who is allowed to apply for environmental permits? Before the amendments, Coastal Zone Management (CZM) Rules and Flood Hazard Area (FHA) Control Act Rules allowed only property owners or their agents to apply for environmental permits. Currently, the CZM, FHA and the Freshwater Wetlands (FWW) Protection Act also accept permit applications from individuals proposing a project as long as they have “legal authority,” the owner’s prior consent. Additionally, public entities proposing an activity within a right-of-way or easement that they hold, or that will be appropriated by them under the power of eminent domain, may file an application for a permit. Do you need written consent? You must likewise have written consent from the holder(s) of an easement or right-of-way if your project would impact it. The amendments also spell out what constitutes written consent for a proposed gas pipeline project within a municipally owned right-of-way. Although these changes and clarifications are minor, the way the NJDEP enforces the rules can greatly impact your project’s schedule. In efforts to reduce their time wasted on invalid applications, the NJDEP has become far stricter regarding landowner consent. Do I need a signed LURP (Land Use Regulation Program) form? Our proven strategies for addressing the landowner consent requirement for environmental permit applications include using landowner consent letters in lieu of signed LURP Forms. This allows submission and review of the permit application while reserving the landowner’s future ability to negotiate for necessary land rights. What about public hearings? Besides public hearings now being called “fact-finding” meetings, elimination of some specific requirements has created more flexibility. Under the old FWW Rules, notice of a public hearing had to be published within 60 days of finding the application administratively complete. Currently, the NJDEP must simply hold a fact-finding meeting if – based on public comments, scope, or environmental impact – it is determined one is needed. Recommendations: Rutter & Roy recommends a more proactive approach to permitting. For clients proposing major developments that may garner significant public comments and/or opposition, we advise they submit a robust permit application and request a fact-finding meeting in their application cover letter. The NJDEP often decides to hold public hearings late in the permitting process, which can lead to delays in permits and in the start of construction. Requesting the hearing early paves the way for an efficient application process.

B. Joan Davis | Jul 9, 2019

Eminent Domain and Condemnation: 5 Essential Steps to Protect Your Commercial Property

Step 1. Legal Analysis of Your Eminent Domain Case If you receive notice that a roadway project is going to impact your commercial property, it is important that you seek legal advice from an attorney experienced in eminent domain law. Such an attorney will help you determine your legal rights, maximize your recovery and, in the process, protect your remaining property’s value and handle issues that may arise during the construction. It is important to seek legal advice as soon as you know that a project that will impact your property. If you wait until you are served with the condemnation lawsuit to get a lawyer, you will drastically limit what your lawyer may be able to do to help you. Many law firms will help you on a contingent fee basis (meaning you do not pay for the services until you are compensated for your land, buildings, and property rights taken -- and then the fee is based on the amount of money you receive from the government). Other firms will work on an hourly basis to help you through the process. Talk with your attorney about a fee arrangement that best suits your needs. Step 2. Road Design and Eminent Domain In the vast majority of cases the government will only need a portion of your property. In those situations the roadway’s design can be critical to how your remaining property functions after the work is done. Most commercial property owners and tenants are concerned about how the new road design and resultant new traffic patterns will affect their customers’ ability to access the property. In these instances, your attorney may engage the services of an experienced traffic engineer to help ascertain the impact of the road’s design on traffic flow and access. If the roadway design is still in the planning stage, the DOT or municipality may be persuaded to modify the road design to preserve access to your commercial property. We have helped our clients maintain or even improve traffic patterns. We have worked with the DOT to redesign portions of projects to reopen driveways that were slated to be closed, allow full access turns where medians were going to block access, and even create access points that did not exist before. In one instance, we were able to keep a bank’s drive-thru access open. In another, we were able to move a national fast food restaurant’s driveway from one location to another to avoid the access being permanently closed. On a rare occasion, we were able to persuade the DOT to break a controlled-access thoroughfare to keep a drugstore from going out of business. DOT officials (and local government transportation departments) are conscientious public servants who are concerned with: 1) safety, 2) traffic flow, and 3) being good stewards of our public resources. When your eminent domain attorney teams up with an experienced traffic engineer they can often persuade the DOT to revise their roadway plans so long as there is no compromise on safety or adequate traffic flow. Such concessions will also benefit the government if they reduce the damage to the property’s value that would otherwise be paid in a condemnation lawsuit. Every case is different and there are no guarantees. But you will never know unless or until your attorney asks. In rare instances, your attorney may persuade the DOT that it no longer needs to acquire your property. In most cases, however, a road redesign will only partially mitigate the damage to your property. You and your attorney will still need to work with the state to insure that you receive the appropriate amount of monetary compensation for the taking. Step 3. Valuation of Your Commercial Property The United States Constitution and North Carolina law provide that you are entitled to “just compensation” when the government takes your private property for a public use. The government will hire an appraiser and offer to purchase your property based on that appraiser’s valuation of your property. You are not required to accept the amount the government offers. We never advise accepting this number without an independent valuation. An independent appraisal will help guide your strategy going forward, and give you a sound negotiating position with important independent expert evidence should the case proceed to trial. A condemnation appraisal is more specialized and complex than a purchase or financing appraisal. The appraiser must be able to pinpoint the market value of your property using methodology that will be recognized as competent in court. The appraiser must be prepared and able to testify at depositions or trial if necessary and be qualified and experienced in this field. Also, an appraiser experienced with condemnation cases will best be able to value the unique property rights often taken by the state, such as a temporary construction easements and permanent easements for utilities, drainage, grading and slopes. Your attorney can help you retain an experienced commercial condemnation appraiser. Step 4. The Condemnation Lawsuit In the event of a condemnation lawsuit, the government agency will be the Plaintiff and you and anyone else with an interest in your property (lender, tenant, easement holders, etc.) are the Defendants. The government will deposit with the court the amount of money that it believes is “just” for the property rights acquired, and you must choose whether to accept that amount or litigate over whether the property was truly acquired for a “public purpose” and/or whether the deposit constitutes “just compensation.” All of the rules of court and rules of evidence apply, though the time deadlines and certain legal motions are different in a condemnation case. Your attorney will help you navigate the legal process, draw down the deposit (if appropriate), prove the value of your property, and negotiate a settlement or try the case in court. Step 5. Apportionment of Condemnation Proceeds If there are multiple Defendants in a condemnation action, you must apportion the settlement or judgment proceeds among these multiple interest holders. This can be tricky. Many commercial leases and deeds of trust provide for the distribution of the proceeds from a condemnation award. The language of these agreements will likely govern the split of the award. If the lease or deed of trust is silent as to apportionment, common law rules will apply to divide the award among the stakeholders. The guidance of an experienced condemnation attorney is essential to ensure that you receive the full amount to which you are entitled, whether you are a lender, owner, or tenant. Conclusion. The condemnation process can be long and confusing with risk and uncertainty, even for sophisticated landowners and business people. Understanding these Five Essential Steps can help you take control in navigating this process. With an experienced condemnation attorney as your guide, you can ensure to the best possible outcome for your business and property interests.

Ryan Alexander Abrams | Apr 11, 2019

A PRIMER ON REZONING YOUR PROPERTY IN FLORIDA

Introduction The process for rezoning your property varies depending on the municipality or county which has jurisdiction. However, there are statewide rules that govern the process. This article focuses on the rules applicable to municipalities. Unless your property is within unincorporated county jurisdiction, you will need to go through the applicable city with jurisdiction to apply for rezoning. This is not a quick and easy process, and your options should be carefully weighed with the help of a qualified land use attorney who understands the nuances involved. What is Zoning? In Florida, zoning is generally a legislative function of cities and counties. It is a land development regulation that places reasonable, public-interest-serving restrictions on the use of real property. Cities, in particular, have home rule authority under Florida’s Constitution adopted in 1968. Under that authority, and implementing statutes in Ch. 166, Florida Statutes, cities have wide latitude to adopt land development (zoning) regulations that say where and how properties can be developed and used. Pursuant to F.S. 163.3194, these zoning regulations must be consistent with the future land use element of the city’s adopted comprehensive plan, which functions as the city’s constitution for purposes of future land development and use. Only the duly elected legislative body of the city, usually called the City Commission or City Council, can adopt zoning regulations by ordinance.[i] The adoption process must follow the detailed procedures set forth in F.S. 166.041(3). To summarize the process, adoption of a zoning ordinance usually will require two separate publicly-noticed hearings. Zoning ordinances typically create a list of classifications, such as ‘Mixed Use or ‘Single Family Residential’ and within each classification, there is typically a list of permitted and/or conditional (or ‘special exception’) uses. For any given zoning classification, permitted uses are those which are allowed as of right, and the property owner needs no additional permission for that use. Conditional uses are exceptions that are allowed on a case-by-case basis, if certain specified conditions are satisfied. Conditional uses may only be approved after following the procedural requirements in F.S. 166.041(3).[ii] Zoning Amendments Cities have significant discretion to grant or deny an application for rezoning.[iii] A decision on a zoning amendment application is valid if it strictly adheres to the procedures set forth in F.S. 166.041(3), is consistent with the comprehensive plan, and accomplishes a legitimate public purpose.[iv] “Competent and substantial” evidence[v] must be in the record to support a city commission’s ruling as one that is reasonable, nonarbitrary, and nondiscriminatory.[vi] Politics undeniably play a role in the rezoning process. Community opposition will exert pressure on elected officials to vote against a rezoning application. To avoid this outcome, effective planning and common sense is critical. The property owner should not push for a use that is totally incompatible with the surrounding community. If the use is even arguably incompatible, the City Commission may have a legitimate basis to reject the application, and there is little chance of appealing it successfully if the ruling is supported by competent, substantial evidence. Variance vs. Zoning Amendment A variance is a different means of getting to the same end: a change in permissible property use. Many cities have ordinances that allow property owners to apply for a variance, which is essentially a special exception that may be granted by the city commission based on the property owner’s unique circumstances. Typically, a showing is required that the property owner would experience a unique hardship if the zoning were applied literally. It usually must also be established that granting the variance would not be detrimental to the public interest. These requirements and others will vary depending on the local jurisdiction. Whether a property owner should seek a variance or zoning amendment depends on the unique circumstances of each property owner and the rules of the governing local jurisdiction. A qualified land use attorney can recommend a course of action to the property owner that gives him/her the best chance of success, even if that may involve litigation. Conclusion As you can see, zoning is complicated. Each city and county has a different process. If you intend to use your property in a manner that is inconsistent with zoning regulations, or if you need an evaluation on zoning, you would benefit greatly from a qualified land use and zoning attorney.

Roy David Oppenheim | Mar 31, 2019

What Do Commercial Real Estate Attorneys Do? | Oppenheim Law Commercial Real Estate Attorneys

Video: What Do Commercial Real Estate Attorneys Do? FAQ’s With Roy Oppenheim Full Transcript: So one of the questions we get is what does a commercial real estate attorney do? And that’s a very broad question, of course, commercial real estate attorneys are currently involved both in representing buyers, they’re involved in representing sellers, and they’re also involved in representing the bank who’s lending the money to a transaction, and so really it’s three questions. So let’s start off with what a bank lawyer is going to do when they’re lending money on the acquisition of a commercial real estate. And the answer is really simple. They’re going to make sure that the bank is getting good collateral, that the documents are executed properly, that they’re getting a title opinion. Excuse me, a legal opinion from usually the buyers’ counsel confirming that the representations that the buyer made are true and correct, and more importantly, they’re going to make sure that the zoning’s okay. Oppenheim Law | Commercial Real Estate Attorneys Fort Lauderdale 2500 Weston Rd #404 Fort Lauderdale, FL 33331 954-384-6114 There’s no environmental problems, that the leases are all in place. And that there are no other outstanding potential issues that you could have, such as like lead paint or asbestos which are all part of the environmental area. But also that the place is zoned properly, that the people could can occupy the property and can run their businesses appropriately, so that they’ll be enough cash flow to pay for the mortgage. So that’s typically what a bank lawyer does. And then, of course, they negotiate the mortgage documents. And of course, they review the title insurance and they review the closing statement. And they’re basically protecting the bank’s interest. So now let’s talk about what the buyers’ lawyers do because they do something similar. They want to make sure that all the issues that the bank’s concerned about are resolved. And of course, they want to resolve it not just for the bank but also for themselves, so they want to make sure that there’s no zoning problems, that there’s no land use issues, that there no environmental issues. And of course, they’re going to negotiate the loan for the buyer with the mortgage company or the bank. And so it’s going to be some negotiations there over lots of terms and conditions and over covenants and various representations, and so the buyers’ attorneys are going to do that. Of course, the buyers’ attorney is also going to make sure that the title is clear. They’re going to review the title and insurance policy, and make sure the type of commitment. What Do Commercial Real Estate Attorneys Do? And then they’re also going to make sure that there are title issues, that those issues get cleared before closing. And of course, the buyers’ attorney is also going to negotiate the contract with the seller to make sure that they’re getting a fair deal, and then everyone knows who’s on first and who’s paying for what, and that deal is going to fly. And of course, they’re going to make sure that there any tenants, that the tenants have confirmed that their rent is not in default, and that the lease is not in default, and the landlord’s not in default. Those are called estoppel letters that typically get a sheet to tenant. And so that’s what the buyers’ attorney is going to do. So finally, what is the sellers’ attorney doing? The sellers’ attorney is going to do everything that the buyer and the bank is asking the seller to do in order to get the deal done. If it’s a title issue, the seller is going to help clear the title problem. They’re going to have to help get all the tenants to sign the estoppel letters and make sure that the tenants are happy because if they’re not happy, then the buyers’ not going to be happy, and the banks not going to be happy. And of course, the seller’s going to negotiate the contract between the buyer and the seller, as it relates to the actual purchase of the real estate. And I think that’s it for now. Thanks. Areas Of Commercial Litigation Business Torts Contract Disputes Corporate Governance Intellectual Property Insurance Coverage Partnership Disputes Commercial Real Estate Residential Real Estate Transactions for Buyers Residential Real Estate Transactions for Sellers Lender Representation Real Estate Development Commercial Real Estate Commercial Landlord/Tenant Commercial Loan Workouts Oppenheim Law | Commercial Real Estate Attorneys Fort Lauderdale 2500 Weston Rd #404 Fort Lauderdale, FL 33331 954-384-6114 Originally posted on Oppenheim Law: https://www.oppenheimlaw.com/news-resources/videos/what-do-commercial-real-estate-attorneys-do/ (What Do Commercial Real Estate Attorneys Do?)