On this episode of The Mobile Home Park Lawyer, Ferd discusses rezoning and the ins and outs of grandfathering. Ferd outlines everything you need to know about rezoning and warns us about some potential “gotcha” moments that could be involved.
HIGHLIGHTS:
0:00 – Intro
0:54 – Ferd discusses grandfathering
3:56 – Many city regulations are unconstitutional, so you may have a claim for taking or partial taking
6:29 – You can rezone, get a conditional use permit or get a variance
6:48 – Rezoning is changing the zoning and changing the use of your property as Ferd explains some relevant acronyms
8:02 – Ferd explains how downzoning could be a way to develop a mobile home park or you could rezone to a planned unit development district
10:27 – Most cities have a master plan, which is basically a guiding document on zoning
12:27 – Rezoning typically then goes to the city plan commission
13:06 – NIMBYism is the first risk of rezoning
13:52 – Sometimes they do spot zoning
14:15 – There could be a ‘gotcha’ when rezoning
15:55 – Ferd generally doesn’t recommend rezoning
FULL TRANSCRIPTION:
Welcome back mobile home park nation. Here again tonight, I’m going to talk about something near and dear to my heart, or at least something that’s been on my plate the last couple of weeks. And that is an extension of a previous discussion on zoning issues.
I’ve covered in some previous episodes, grandfathered status, and sometimes how you have to fight cities on that. Grandfathered status as a refresher is basically legal, non-conforming zoning status, which basically means at the time the park was built, or the time some form of enhancement was made, that the action was legal, you know, meaning you know, you were allowed to have no curbs gutter sidewalks, stormwater detention, you were allowed to have homes 10 feet apart, things like that, or there was no code, or you predate the code, or you predate the city. I am working on a couple of cases right now where the park actually predates the city. So, clearly, we existed before the city code. So we are, in some respects immune or exempt from the city regulations. That’s what grandfathering essentially means. Now, it’s not without some restriction, right. I mean, you could certainly abandon your use, that would be one way to neuter your status of being grandfathered. Another would be to be deemed a nuisance to typically mean the city would, you know, pass some sort of ordinance, typically, they give you some sort of hearing, or opportunity to your, quote, nuisance status.
Another way to lose your grandfather status be voluntarily, I’ll cover some of that today, like, for example, voluntarily rezoning the property. Those are probably the big three ways. And then another legitimate restriction that government can place on your property and on your property, rights would be to protect public wealth, health, safety, welfare, which basically, in mobile home park world means the fire code. I was looking at a park the other day in Iowa, and their homes you could literally walk from rooftop to rooftop in this park. They were so dense, they backed up, there weren’t six inches between them. So it would have been a great park to buy, it is in a great location in the Des Moines market. Except, it’s clear that those are not going to pass fire codes. So they’re grandfathered in, which means the city of Des Moines cannot force you to take those homes down. But what it means is if one home burns down, or if one home burns down, they are probably all burndowns, they are so close. But if one home burns down or moves out or just falls into such disrepair that it’s worth demolishing. It’s infeasible to bring a new home into that park, because they’re going to have internal setbacks, the new internal setbacks, despite not previously applying, because of the grandfathered status, they’re going to apply now because it’s clear that there’s a public safety issue or concern with having home six inches apart. Most states have a 10 to 15-foot fire code. I wouldn’t recommend putting homes any closer than that. But that’s what I use kind of my example here today because that’s when I’ve dealt with a couple of cases lately is internal setbacks. There’s also perimeter setbacks, there’s often zoning restrictions on the age of homes can be brought in, the size of homes can be brought in, can you bring homes in at all, etc. And a lot of those city regulations and co provisions are unconstitutional because they don’t have a rational basis to restrict. Restrict your property rights or limit your property rights. So you might have a claim for a taking or a partial taking, which depending on how you shake it up, it could be discriminatory. And it could potentially even lead to legal fees under the Civil Rights Act. That’s more rare, but I’ve seen it happen.
So anyway, if you run the zoning problem like that, you really have only a few options. And I’m going to cover that today. I’m going to cover that, you know, I probably break this up here. I’m kind of spitballing this but as I’ll probably break this up into numerous episodes, depending on how long we go. But I’ve been diving into small case law, which is frankly kind of boring, but it’s important. My old boss Mike White was a kind of a zoning real estate Titan. He’s still living and practicing. But he wrote the book, Missouri land use law and Missouri economic development law.
When I practice with him, I helped him edit that book and kind of the, I certainly couldn’t have written it like he did, but I was at least in the middle of it to some degree. So I pulled it out there it’s like 3000 pages. It’s a treatise, it’s a beast of a document, can’t even be bound. It’s so big, I got two four-inch binders. Anyway, it’s filled with gold. And there’s lots of information on zoning. So when faced with a dilemma like this, and I’ve had couple of parks we’ve looked at recently that had dilemmas like this, I want to look at the case law. And I want to see if my rights are. In general, I say, if I’m legal conforming, it’s pretty easy, right. You’re zoned legally, that would happen on like new construction or on something that’s been either master zoned by the city or individually zoned by a property owner, you know, previous to me, that’d be legal conforming, and then the, you know, the second option is legal, non-conforming, ie grandfathered, that’s the one that gets most attention, and for good reason. And then the third option is there’s illegal, meaning not legal, never legal, never permitted. And you shouldn’t really mess with those. That’s pretty risky.
So back to the grandfather status, if a city’s fighting me, for example, on this deal, de Moines where the homes are six inches apart, I really have three main options, I can rezone the property. And typically you can rezone the property into two different types of rezoning, which I’ll get into. So we’ll cover rezoning first. Next, you can get a conditional use permit or a special use permit. And then third is a variance. And variance is kind of like a special exception. So on this first episode, we’re going to dive into rezoning. And it’s pretty obvious what it is, it’s changing the zoning, changing the use, for example, from commercial to residential or industrial. Every city has little acronyms or abbreviations for the different levels and types of zoning, it really, they call it intensity. So for example, R1, R2, R3, R4, typically R1 is like single-family, you know, R2, single and double, and so on and so on until you get into, you know, high-density residential. Typically, your commercial districts are zoned to C or B for business, industrial, or industrial slash manufacturers have an I or an M classification. It’s typically easier to down-zone. So for example, I looked at a property the other day, I don’t remember which city it was in. Actually, it was in Kansas City, actually. But it had a couple of different zonings on this multi-parcel, property. And one of the zoning classifications was M1, which in Kansas City M is manufacturing, industrial classification. That’s a more intensive use. I mean, frankly, nobody wants to live next door to like a Sheetmetal plant or a concrete plant. So it’d be easier to down zone that might be an opportunity to actually download into mobile home parks. People call me all the time, hey, can you help us develop mobile home parks? I’m like, yeah, I’d love to, but it’s really hard to do. It’s going to be city-by-city-specific as to whether you can get the zoning and if it is a new park, you don’t have any grandfather rights, it’s new. So you got to come hand in hand a little bit. But downzoning is one way to possibly get there. You can also rezone to something that’s called PUD like planned unit development. Some cities call it mixed-use, master plan development, plan development. But essentially what it means is you jointly with the city, you get permissions to create your own zoning district. So I for example, I could, in theory, get a creative a PUD district that says I can stack 10 mobile homes on top of each other. Now that would probably break some laws. Like I could get a PUD that says I can put 100 mobile homes, you know, six feet six inches apart, in an end-to-end line two feet from the roadway. And realistically, I’m not going to get that approved. But what it does, the benefit of PUD is it allows you to basically negotiate which provisions in the current code are going to apply. This is most commonly used for mixed-use development.
Because you know, zoning, in general, is designed to you know, protect properties from essentially negative consequences of neighboring properties. So for example, I live in a single-family neighborhood, I would not like it if a gas station moved in next door, I would not like it to have a skyrise moved to the window next door, I would not like it if an asphalt plant moved to next door. So my neighborhood has a kind of uniform zoning. Everybody’s single from the residential. So typically you go in chunks of intensity, you’ll have single-family, you may have a buffer of like a school or a church or a park. Or typically maybe that’s where you get into duplex or townhomes and eventually, you get into apartments and then you get more like your urban core where you’ve got more office-type buildings.
So a mixed-use project for example. I used to work on some streetcar projects where they’d have transportation nodes as part of this and they’d have ground-floor retail, maybe they have a coffee shop, maybe they have a bookstore, maybe they’d have a grocery store, dry cleaners, and on top they’d have residential or condo residential or office. Well, someone has been the same real estate parcel just be vertical. And that doesn’t fit in the regular zoning classification. They needed a mixed-use classification. But overall, the purpose of zoning is to regulate land use. And then in theory, you know, the government that we all love so much the purpose, and I worked for the government for five years, I’m not knocking the government. But on zoning issues, it’s typically the government that’s grinding your gears, if you will. The purpose is to serve the health safety general welfare of the public. And they do that by having districts.
And macro level, most cities have I think they’re probably required to have I don’t know enough about it, frankly. But they were had, they have a master plan, which they call sometimes as a master plan or a comprehensive plan. And this is basically a guiding document. And it’s also meant for long-term or long-range planning, like, you know, for example, where I sit in my house right now, it’s in a single-family neighborhood. And to the north of me a couple of miles away there’s farm ground, like say a mile away, I guess. So that farm round, I haven’t looked at it. But I would wager that the master plan contemplates that being more single-family residential and likely, low density, large lot suburban-style, single-family housing. So if I wanted to go build, now, it’s currently zoned agricultural because there’s a new cornfield on it. So if I wanted to build single-family residential, I’m off to a good start, because the comprehensive plan anticipates it. So then when I go to rezone, it’s reasonable, it’s in fact, it’s called for and if the city did not grant me my zoning, my rezoning I could argue it’s an unreasonable right to rezone my property. So that’s, so if you do want to rezone to say MHP an easier step, or I mean, an easier to get it done the first front, but a more appropriate step would be to change the comprehensive plan to have mobile home park desired housing.
Now, a comprehensive plan, a master plan is a guiding document, it’s not binding. So it’s okay to not have that. But typically, when you want to rezone, you got to go through an application process to city generally they make you have meetings with, there’s an application fee, they make you meet with neighborhoods and have some sort of not necessarily a public hearing, but at least a neighborhood meeting. And then typically, you’ll meet with city staff, you put together your site plans, or whatever documents they require. Sometimes you need engineered site plans and surveys and all that kind of stuff. And then typically rezoning goes to the city plan commission. Sometimes it’ll go to the city planning commission, then the city council, or just the city council, and typically council’s elected body. Sometimes there’s a mayor, there’s a mayor to be a strong, typically there’s a mayor, but some counties have commissioners or something. And they have a strong cayor form of government or a strong manager form of government. And that really just dictates who’s in charge, who runs the city. A city planning commission is typically a volunteer board of citizens appointed by the mayor of the city council.
And you go through that process, and you got to get the approvals and the risk of a rezoning, a couple of risks from an MHP perspective is one is NIMBYism. NIMBY is an acronym for not in my backyard. Rarely do you find a lot of neighbors show up in support of the new trailer park in town. So you got to deal with that. And that actually makes it harder. And you know, sometimes the city will listen to the mob if you will, and they just come out there with pitchforks, man, it’s crazy. And they’ll refuse to give you their zoning. And that could be a regulatory taking, frankly, you know, they are taking part of your property, taking some your rights and you know, not giving you what you need. So another thing they do, sometimes it’s called spot zoning. And this is basically when there’s you know, my house if I get permission to rezone to a gas station in my single-family neighborhood doesn’t make much sense. And if that is in contravention of the comprehensive plan, it’s probably spot zoning, they’re not supposed to do that. It’s supposed to have uniformity, right? And rezoning a concern here for MHP. You got to make sure you know the specific code because there could be a gotcha. Sometimes the city may say oh, just rezone. Just rezone to MHP and file an application. And it’s depending on the city code, there could be an argument made that by applying, you are forfeiting your existing grandfather status. So that could be bad. So look at it on a case-by-case basis. I don’t think that’s the, you know, standard rule. But I’ve heard of some nightmare stories when people did that.
Actually, I had a client that, he didn’t rezone the property, but his predecessor did. So he voluntarily gave up his grandfather status, but it’s because the city convinced him to rezone MHP. So it was great, right? He now has a legal conforming land Use. Well, the problem with that is he wanted to be grandfathered in from the setback requirements. So the setbacks are in the old code were five feet. The homes are five feet, he must have replaced the homes under the old code, he could argue, look, I’m grandfathered, the new code does not apply to me, including setbacks unless they’re fire code related. And if it’s five feet from the perimeter, and there’s no other structure within the perimeter, then the next guy has to abide by the fire code. So he’d be able to put these homes within five feet of the property line. Well, because his predecessor voluntarily rezoned to MHPs zoning district. He’s not grandfathered, he’s legal conforming and it’s actually a negative impact on him because the setbacks on the legal conforming MHP zoning classification are like 25 feet. So it actually worked backwards.
So you got to be careful if you want to rezone. I generally don’t recommend it. I’m in the process of fighting but yeah, frankly, I’m fighting the city here in Missouri. And they want the city’s planning people want me to go to you know, rezone PUD. I am like no, I don’t want a PUD, you are trying to make me do all these expensive things like you know, upgrade my water to 80 inch main, the crazy stuff, sewer, optimize sewer, curbs, gutters, sidewalks, stormwater detention, underground storm shelter, you know, it quickly becomes 30-foot concrete roads built to city standards, I mean, quickly becomes a half a million-dollar, you know, project. So, you denuded your grandfather, I’m getting off tangent here, but your grandfather only pertains frankly, until you exacerbate your grandfather use. You cannot expand the use, you can’t expand the number of lots, you can’t expand to another parcel. And otherwise, you’re a redevelopment which is basically like a new development. And if you do a redevelopment, you don’t have a grandfather, you got to follow the current code.
So you want to make sure you protect your existing lots. And you protect the setbacks subject to fire code, but you don’t want to flat out, redevelop or you know, without knowing what you’re doing. And typically it means you lose your grandfather status. It’s a problem. So ultimately, my point here on rezoning is the city sometimes wants you to do this PUD zoning, and they could be a gotcha moment where they’re trying to get you to waive your grandfather status voluntarily. And it could be just a way for them to strong-arm you into accepting stipulations and development restrictions that are more onerous than you would normally see in your grandfather status. So that’s the first episode here. I’m going to jump on to another one here shortly. So stay tuned, but today we’re going to cover the key items for what the heck is a rezone variance. Until next time, take care, God bless.