P R O B A T E   &   P R O P E R T Y
September/October 1999
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Preparing Zoning Opinions
By John B. Grandoff III

In transactions involving the purchase or sale of real estate or a secured real estate loan, it is common for purchasers, lenders and their respective counsel to require zoning opinions. This article outlines zoning law basics and provides a few practice points to consider in preparing a zoning opinion.


Zoning regulations and related land use laws originated in the common law of nuisance. After World War I, as cities became more urbanized and industrial, the common law of nuisance evolved into locally adopted regulations governing the use of land as part of a municipality's public health, safety and welfare powers. The power of local governments to create and enforce laws regulating land use through zoning districts was confirmed by the Supreme Court in City of Euclid v. Ambler Realty Co., 47 S. Ct. 114 (1926).

Through the post-World War II boom, as society progressed towards suburban development, municipal zoning power evolved through these of deed restrictions, subdivision controls, comprehensive planning, planned developments and other similar means. Generally, the result has been a division of land uses or "zonings" into five categories: agricultural, residential, commercial, industrial and "mixed use."

Zoning Districts and Special Uses

Individual zoning districts are defined with certain regulations governing each use, including the minimum area for a parcel, minimum dwelling units per acre, floor area ratio, parcel dimensions and setbacks. For instance, a commercial zoning district may be identified as "CG," which would require minimum area, width, square footage and setbacks. Thus, the first step of due diligence is to verify the zoning district and regulations applicable to the property, usually through a zoning confirmation letter from the particular municipality, accompanied by a copy of the applicable zoning code provision and zoning atlas or map page.

Besides uses permitted as of right, certain zoning districts may allow, with special permission, what are termed "accessory uses," "conditional uses" or "special uses." These are usually uses within a certain zoning district, but they are unique, and specific criteria or conditions control them. Some authorities may permit these uses by administrative approval according to stated criteria, such as a parking lot in a commercial neighborhood district or a church within a residential district. Other special uses may require further oversight and may require approval from a city council, a zoning board or a planning board. Examples include telecommunications towers in residential districts, storage warehouses in neighborhood districts and parking lots in residential districts. These approvals are typically considered in the forum of a public hearing.

Zoning approval of special uses is not a rezoning per se. Rather, it is the particular approval of a particular special use within the particular zoning district, but usually with stated conditions regulating the use. If a particular transaction involves a special use, the zoning authority should confirm approval of the special use by letter, ordinance or resolution, depending on local procedures. If certain conditions apply to the special use, they must be included in the confirming document. Appeals of denials of special use petitions are usually made to a court of original jurisdiction.


A "board of adjustment," "variance review board" or "planning board" typically consider variances. These boards usually comprise citizens that the legislative body of the local government appoints, and their limited power extends to permitting a "variance" from particular district regulations, such as setbacks, height restrictions and landscaping requirements. A variance may be granted only on a unique hardship resulting from the particular property. A board may not grant a variance according to a personal or an aesthetic preference. The fact that similar properties have received variances is not precedent or approval and does not bind the approving authority.

In its deliberations, a board must base a denial or approval on "competent substantial evidence" in the record establishing all stated variance criteria. See Board of County Commissioners v. Snyder, 627 So. 2d 469 (Fla. 1993). The approval or denial should be in writing in the form of an order or a letter of approval. As with special uses, appeals are made to a court of original jurisdiction.

If due diligence suggests a variance, counsel should obtain a copy of the order or letter of approval from the governing authority confirming that the variance has been granted. Finally, because variances are granted in derogation of the zoning code, they are limited to a certain time period within which construction must begin, usually from six months to two years.


It is becoming common for suburban developments, usually housing, to impose self-regulations that supplement zoning laws. Regulations are implemented among a finite group of owners and are accomplished through community development districts or platted subdivisions, approved by the local government but ultimately enforced through a board of property owners within the particular development district or subdivision. Statutes may authorize these entities to provide municipal services, to regulate uses and aesthetics and to preserve land values. Typical services provided include water, drainage, sewer, lighting, parks, recreation and security. Because the local government does not provide these services, owners typically assess themselves. The local tax collector may collect these assessments and allocate them toward the debt service that funds the improvements and services. During due diligence, counsel should review any recorded restrictions and current assessment information for the property and verify that the particular district or subdivision association is properly empowered and enforcing applicable regulations.

Historical preservation restrictions are becoming more common in commercial transactions, especially in connection with loans for improvements to existing properties. Generally speaking, historic preservation involves the creation of a geographical district within a city and the adoption of guidelines regulating matters such as paint color and architectural design. The regulations may prohibit certain materials or amenities, such as aluminum siding, swimming pools and tennis courts. Lawyers should obtain documentation--a "certificate of appropriateness," a "demolition order," a "rehabilitation order" or a similar document--to show whether the property is under a historic preservation jurisdiction and whether proposed construction or demolition is approved.

In Florida, a unique development approval known as the "Development of Regional Impact" (DRI) development order is governed by statute and applies to developments that affect "more than one county." See Fla. Stat. § 380.06. When a DRI development order is involved, it should be referenced by a recorded notice and an annual report detailing the status of the project in terms of approved uses, approved density/square footage, environmental requirements, build-out status, traffic mitigation requirements, other performance standards and status of conditions of approval. Conditions will typically involve road, sewer and water improvements, school construction and environmental/conservation easements. Before closing a transaction, purchaser's counsel or lender's counsel must review the approved development order, as amended, and the most recent annual report for the project. These two documents will quickly provide an update on the development rights involved and the status of the project.


This article has briefly described some of the more common aspects of land use due diligence. By addressing land use due diligence items early in a transaction and preparing a checklist, counsel will be able to review necessary documents and prepare accurate zoning opinions.

John B. Grandoff III is a shareholder of Hill, Ward & Henderson, P.A. in Tampa, Florida.