The Zoning Letter After the Lease Was Signed
The letter
A 14-person plumbing shop had outgrown a two-bay unit and signed a five-year lease on a larger flex unit in a business park: office in front, a warehouse bay with two overhead doors, and a striped lot. They moved in three weeks later. About nine weeks after that, the owner opened a letter from the town's zoning enforcement office titled "Notice of Violation". It cited two things: use of the premises as a "contractor's yard", and "outdoor storage", neither of which the letter said was permitted in that zoning district. It gave 30 days to correct the violations, named a daily penalty for continuing ones, and stated a deadline to appeal to the zoning board.
The letter had been prompted by a complaint. A neighbor, a medical office across the drive, had called about trucks idling at 6:30 am, a pipe trailer parked across three spaces, and racks of PVC and copper standing against the outside wall.
This account works backwards from the paper, because that is the only way the owner could find out how a careful business ended up in violation without anyone deciding to break a rule.
Rebuilding the record
The owner and the office manager pulled every document they had about the building and put them in date order before calling anyone. Day 0 is the lease signing.
DAY DOCUMENT WHAT IT SAID ABOUT USE
-30 broker listing "ideal for contractors"
-18 broker email "use should be fine"
-10 lease draft, use clause "office, warehouse and
any lawful use"
-10 lease, compliance clause tenant complies with
all laws at own cost
0 lease signed no zoning contingency
21 move-in 9 vans, 2 box trucks,
1 trailer, pipe racks
75 neighbor complaint (learned later)
82 notice of violation cure by day 112
Three things stood out once it was laid out like that.
Nobody with authority had ever said the use was allowed. The listing and the broker's email were marketing and an opinion. A broker is not the zoning office, and "should be fine" is not a determination.
The lease put the problem on the tenant. "Any lawful use" means any use the law allows, which is the question nobody had asked. The compliance clause made legal compliance the tenant's cost. So the landlord was not in breach, and the lease gave no right to walk away. (See related: Commercial Lease Clauses a Trade Shop Should Read First.)
What the shop actually did on site had never been described to anyone. The use the owner had in mind was "a plumbing company's office and warehouse". What arrived on day 21 was that, plus eleven vehicles parked overnight, a trailer, and materials stored outside. Those last two items were exactly what the letter cited.
What the zoning code actually said
The office manager found the district's use table and the definitions section in the town's zoning ordinance online, which took about an hour and should have been done on day minus 30.
- Office and warehouse were permitted by right in the district.
- Contractor's shop was a defined use: a building trades contractor's office and storage, with all materials and equipment kept inside a building. It was allowed in the district by special permit.
- Contractor's yard was defined separately: outdoor storage of materials, equipment or vehicles used in a contracting business. It was not allowed in the district at all, only in the industrial districts.
- Outdoor storage of any kind was prohibited in the district except screened refuse containers.
So the honest reading was that the shop's indoor operation was close to a use the district would consider, and the outdoor operation was a use the district did not allow. The letter had not exaggerated. It had described the parking lot.
Calendaring the deadlines first
The first thing the owner did with the letter was put two dates on the wall calendar: the cure date (day 112) and the appeal deadline printed in the letter. In many towns the appeal window is short and runs from the date of the notice, and missing it can make the violation final whether or not the town was right. The owner did not intend to appeal, but kept the right open until the meeting with the zoning office made the answer clear.
This is local law. Zoning is adopted by each municipality or county under a state enabling act, so the categories, the appeal period and the penalty all differ from one town to the next, sometimes across one road. This is not legal advice, and the owner retained a local land use attorney for one meeting at this point, which turned out to be the most useful hour of the episode.
The meeting
On day 86 the owner and the attorney met the zoning administrator. They brought a site plan sketch, the vehicle list and photographs. The owner did not argue the letter. The attorney asked one question: what would this operation need to look like to be a lawful use of this property?
The answer, in substance:
- The indoor business could continue as a contractor's shop if the shop applied for the special permit, which required a hearing.
- Vehicles: company vehicles of the size of a passenger van parked in striped spaces were treated as accessory parking for a permitted use. The two box trucks and the trailer, parked overnight, were storage of equipment and part of a contractor's yard.
- Materials: everything outside had to move inside or off site.
- Idling was not a zoning matter, but the complaint would follow the shop to the hearing.
Resolving it
The work took the next two and a half weeks and cost the shop some of its new building.
- Pipe racks moved inside. That took roughly a third of the warehouse floor the shop had leased to grow into, and pushed the parts room reorganization back a quarter.
- The two box trucks and the trailer moved off site to a fenced lot rented by the month in an industrial district about three miles away. That added a drive at the start and end of the day for the two crews that use them, about 15 minutes each way.
- Nine vans parked in striped spaces, nose out, with a no-idling rule before 7:00 am. Warm-ups did not move into the bay: an idling engine indoors fills the building with carbon monoxide, open door or not.
- A letter to the neighbor, from the owner, saying what had changed and giving a phone number.
- The special permit application filed on day 98, with a site plan showing no outdoor storage.
The zoning office re-inspected on day 104 and found the violations corrected, eight days inside the cure date. The permit hearing was held at the next monthly board meeting, the neighbor did not object, and the permit issued with two conditions: no outdoor storage, and no more than ten company vehicles parked on site overnight. The shop then asked for, and on day 131 received, a written use determination confirming that the operation as described in the permit was lawful at that address.
What the owner does now
The rule the owner wrote into the shop's real estate checklist is short: no lease is signed until the zoning office has said in writing that the use, as the shop will actually run it, is allowed at that address, and the lease is contingent on that answer.
In practice that means four things, in this order.
- Describe the real operation, not the category. Number of vehicles parked overnight, their size, whether anything is stored outside, hours, whether customers visit. The use table only answers the question asked, and "plumbing office" is not the question.
- Ask for a written use determination before signing. See related: How to Ask the Zoning Office for a Written Use Determination. An email from a planner saying "that sounds fine" is helpful; a letter from the zoning administrator citing the use category is what the shop can rely on.
- Make the lease contingent on it. A clause allowing the tenant to terminate without penalty if the use determination or any required permit is not obtained by a set date, commonly 30 to 60 days after signing, with the deposit returned. Landlords in business parks are used to this clause; the ones who resist it are telling you something about the building.
- Write the actual use into the lease. The use clause names the contractor's shop, the overnight vehicle count and any outdoor storage the permit allows, so a later landlord cannot say the shop changed its use.
Those four steps would have taken roughly two to three weeks before day 0. The violation took 49 days from the letter to the written determination, plus the off-site lot rent every month from then on and a third of the warehouse floor. See related: What Zoning Has to Allow for a Contractor Shop, which owns the question of which districts a shop belongs in.
Where this case would have gone differently
- A district that did not allow a contractor's shop at all, even indoors. Then the cure is a move, and the lease's termination rights are the whole story. Without a contingency, the shop is paying for a building it cannot lawfully use until the lease is bought out or sublet to a tenant whose use is allowed.
- A use that predated a zoning change. A previous tenant running the same kind of business before the district was rezoned may have created a lawful nonconforming use. Whether that right survives a vacancy, and for how long, is set by the local ordinance, and it is one of the first questions to ask the zoning office about a building a contractor used before.
- A change of use that also needs building approval. Moving from warehouse to a shop with a wash bay, a mezzanine or more people in the office can trigger a certificate of occupancy review that is separate from zoning entirely (see related: The Certificate of Occupancy and the Change-of-Use Trap).
References
- Your municipality's or county's zoning ordinance: the district use table, the definitions section, and the notice and appeal procedure.
- Your state's zoning enabling act, which sets the framework local ordinances work within.
- See related: How to Ask the Zoning Office for a Written Use Determination; What Zoning Has to Allow for a Contractor Shop.
- See related: Commercial Lease Clauses a Trade Shop Should Read First; Where a Work Truck Is Allowed to Park Overnight.