Zoning – Consequences of Code Violations

by Bruce May

Zoning is the manner in which cities and counties regulate land use. Typically, land is divided into residential, commercial and industrial districts, or it can also be designated as mixed-use, each with its own parking, setback, height and other design requirements. In addition, the city, in the course of approving a zoning application, may require variances, special use permits or satisfaction of conditions and stipulations. A common violation is an owner developing or using property in a manner not permitted for that zoning district. For example, operating an auto repair shop out of the garage of a home, if in a residential district, could be a violation.

There are, basically, three stages at which the jurisdiction evaluates zoning code compliance: (i) planning, (ii) construction, and (iii) occupancy. At the zoning/planning stage, the jurisdiction ensures the use is permitted and the improvement falls within the general requirements; at the construction stage, the building plans, among other things, are evaluated to ensure that the construction will specifically conform to the planning as approved; if so, a building permit is issued to begin construction. Upon completion and after inspection, an occupancy permit is issued to begin or continue occupying the project or property as improved. If, at any time, the construction is not in compliance, the city or county can issue a “stop work” order. Without zoning/planning approval, there is no building permit, and, if the construction is not properly completed, there is no occupancy permit to allow the owner to use the property as intended.

In addition to imposing on the owner the requirement of securing the necessary approvals and permits before any improvements to the property are possible, the city or county will respond to complaints filed by other residential or commercial property owners, or the city or county property inspectors. For instance, if a business is operating an auto repair shop out of the garage of a home in a residential district, a neighbor could file a complaint against the operation, or, if in a shopping center, a business could file a complaint against the owner or tenant that the use exceeds parking restrictions.

Absent extraordinary circumstances, such as safety or hazardous conditions or previous violations, the city or county will issue a notice and give the owner a number of days to correct the issue, the period time depending on the violation. If the owner refuses or is incapable of correcting the condition, the zoning inspector can bring a civil or criminal action, and seek court orders, damages, penalties and fees. The city or county, where danger is imminent, can also cure the condition itself and impose a lien on the property. If the party complaining is dissatisfied with the city’s response, he or she can bring a separate civil action, most often for abatement of a nuisance.

In conclusion, zoning violations can be serious and should not be disregarded. Violators can suffer serious financial consequences and may even lose their property or its use.

Bruce May is attorney at Jennings, Strouss & Salmon, P.L.C. and chair of the firm’s Real Estate Department. He has devoted his career to all aspects of the law and practice of real estate and commercial transactions throughout Arizona.

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