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COLORADO REAL ESTATE JOURNAL
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Law & Accounting
A
n owner (or buyer) of
real estate may wish
to change a proper-
ty’s zoning in cases where the
zoning disallows the intended
or desired use of the prop-
erty. Doing so, however, can be
a very involved process. This
short article, while not a com-
prehensive guide to zoning
amendment, endeavors to shed
some light on what it takes to
accomplish a zoning change.
Communities use zoning to
promote harmonious develop-
ment patterns and keep incom-
patible land uses away from
each other. As times change,
however, so do our communi-
ties. Sometimes zoning must
be amended and local develop-
ment codes allow for this in
limited cases. Changing zon-
ing means changing the law
because both the text in the
zoning code and a communi-
ty’s map of zoning districts are
codified under local ordinance.
Given how difficult it can be
to effect a zoning change, there
may be easier solutions that
allow achievement of a prop-
erty owner’s goals. A savvy
owner will first look for work-
able alternatives before mak-
ing an application for zoning
amendment. For example, most
development codes provide
for special-use permits and/or
conditional reviews that allow
additional uses in a given zon-
ing district. Also, the doctrine
of “nonconforming use” allows
continuation, in some cases, of
historical uses that are contrary
to current zoning. And while
a variance will never permit
a use that is unavailable in a
given zoning district, variances
can provide relief by allow-
ing greater intensity within a
permitted use. If no alternative
solution works, then the owner
may wish to pursue a zoning
amendment.
Zoning change can take the
form of an amendment to the
zoning map, the zoning text
or both. A map amendment
changes the designation of a
parcel from one zone district
to another – for example, from
“single-family residential” to
“multifamily.” A text amend-
ment changes the definition of
a zoning district – for example,
by changing the legal meaning
of “multifamily” from “build-
ings with three or more” to
“ bu i l d i n g s
with
four
or
more”
r e s i de n t i a l
units. Map
amendments
are of lim-
ited scope,
in that they
only change
the zoning
of the affect-
ed parcel or
parcels. Text
amendments
have broader
effect, in that
they change
the rules for every parcel in
the affected zoning district
across the community. Govern-
ment may be more inclined to
approve one kind of zoning
change or the other, depending
on a variety of factors.
Probably the best-case sce-
nario for the owner wanting a
zoning change is where local
land-use planners deem the
proposal to be so well aligned
with the public interest that
they propose it themselves. In
the majority of cases, howev-
er, the owner must make the
application and then follow it
through a lengthy process. This
typically culminates in public
hearings at both the quasi-judi-
cial level (planning board or
commission) and in front of the
elected body (county board of
commissioners or city council).
In many communities, zon-
ing change applications will
only be heard periodically,
such as semiyearly or yearly.
Where a proposed amendment
lacks conformity with the com-
munity’s comprehensive plan,
a plan amendment may be
required as well. Some com-
munities treat their compre-
hensive plan as an advisory
document, while others con-
sider their plan to be a legal
framework that must be kept
in strict conformity with their
code.
Putting aside issues like
comprehensive plan compli-
ance, the usual road map for
submitting a zoning amend-
ment is as follows: 1) atten-
dance at a pre-application con-
ference with planning staff to
discuss the proposed change
and get a sense of whether
staff would support it; 2) pay-
ment of fees; 3) submittal of
a complete application, which
often requires extensive docu-
mentation such as plat maps,
traffic studies, infrastructure
analyses, a rationale for the
proposed change and other
information; and 4) provision
of public notice.
Once the application has
been accepted, staff prepares a
report recommending approv-
al or denial and presents that
report to the quasi-judicial
body at a public hearing. This
body then votes to recommend
approval or denial of that
application to the elected body.
At a subsequent meeting of
the elected body, the members
consider the recommendations
of both staff and the quasi-
judicial body and vote on the
proposed change.
Government decides to
approve or deny a proposed
amendment based on how well
the application conforms to the
community’s comprehensive
plan, and its zoning and devel-
opment codes. It also consid-
ers factors such as whether the
change:
• Is justified by changes in
the character of the area.
• Fulfills a community need
that has arisen since the origi-
nal zoning was put in place.
• Better reflects the compre-
hensive plan than does the cur-
rent zoning.
• Is warranted because the
existing zoning resulted from
an error or mistake or did not
take environmental factors into
consideration.
• Can be supported by public
infrastructure (including water,
schools, roads, sewerage, flood
control facilities, etc.)
• Will produce negative
impacts on surrounding land
uses and/or the environment.
If the vote is to approve, then
the change will be effected in
law. In some cases, an approval
vote requires a “second read-
ing,” and this means at least
one additional public hearing
and another month of waiting
before the amendment is oper-
ative. If the vote is for denial,
then the applicant may accept
the denial, propose a different
amendment at the next avail-
able time, wait a given period
(usually a year) and return
with the same proposal, or sue
the city or county in district
court.
s
Harmon
Zuckerman
Associate attorney,
Frascona, Joiner,
Goodman and
Greenstein P.C.,
Boulder
