A Primer on Rezoning Your Property in Florida

Introduction

The process for rezoning your property varies depending on the municipality or county which has jurisdiction.  However, there are statewide rules that govern the process.  This article focuses on the rules applicable to municipalities.  Unless your property is within unincorporated county jurisdiction, you will need to go through the applicable city with jurisdiction to apply for rezoning.  This is not a quick and easy process, and your options should be carefully weighed with the help of a qualified land use attorney who understands the nuances involved.

What is Zoning?

In Florida, zoning is generally a legislative function of cities and counties.  It is a land development regulation that places reasonable, public-interest-serving restrictions on the use of real property.  Cities, in particular, have home rule authority under Florida’s Constitution adopted in 1968.  Under that authority, and implementing statutes in Ch. 166, Florida Statutes, cities have wide latitude to adopt land development (zoning) regulations that say where and how properties can be developed and used.  Pursuant to F.S. 163.3194, these zoning regulations must be consistent with the future land use element of the city’s adopted comprehensive plan, which functions as the city’s constitution for purposes of future land development and use. 

Only the duly elected legislative body of the city, usually called the City Commission or City Council, can adopt zoning regulations by ordinance.[i]  The adoption process must follow the detailed procedures set forth in F.S. 166.041(3).  To summarize the process, adoption of a zoning ordinance usually will require two separate publicly-noticed hearings. 

Zoning ordinances typically create a list of classifications, such as ‘Mixed Use or ‘Single Family Residential’ and within each classification, there is typically a list of permitted and/or conditional (or ‘special exception’) uses.  For any given zoning classification, permitted uses are those which are allowed as of right, and the property owner needs no additional permission for that use. Conditional uses are exceptions that are allowed on a case-by-case basis, if certain specified conditions are satisfied.  Conditional uses may only be approved after following the procedural requirements in F.S. 166.041(3).[ii] 

Zoning Amendments

Cities have significant discretion to grant or deny an application for rezoning.[iii]    A decision on a zoning amendment application is valid if it strictly adheres to the procedures set forth in F.S. 166.041(3), is consistent with the comprehensive plan, and accomplishes a legitimate public purpose.[iv] “Competent and substantial” evidence[v] must be in the record to support a city commission’s ruling as one that is reasonable, nonarbitrary, and nondiscriminatory.[vi]

Politics undeniably play a role in the rezoning process.  Community opposition will exert pressure on elected officials to vote against a rezoning application.  To avoid this outcome, effective planning and common sense is critical.  The property owner should not push for a use that is totally incompatible with the surrounding community.  If the use is even arguably incompatible, the City Commission may have a legitimate basis to reject the application, and there is little chance of appealing it successfully if the ruling is supported by competent, substantial evidence. 

Variance vs. Zoning Amendment

A variance is a different means of getting to the same end: a change in permissible property use.  Many cities have ordinances that allow property owners to apply for a variance, which is essentially a special exception that may be granted by the city commission based on the property owner’s unique circumstances.  Typically, a showing is required that the property owner would experience a unique hardship if the zoning were applied literally.  It usually must also be established that granting the variance would not be detrimental to the public interest.  These requirements and others will vary depending on the local jurisdiction.

Whether a property owner should seek a variance or zoning amendment depends on the unique circumstances of each property owner and the rules of the governing local jurisdiction.  A qualified land use attorney can recommend a course of action to the property owner that gives him/her the best chance of success, even if that may involve litigation. 

Do your Due Diligence  

It is a terrible thing to purchase land with the intent to use it for a particular purpose, only to later find out that the use is prohibited.  Therefore, by the time you close on the purchase of real property, you should already have a full understanding of the permitted and conditional uses for your property, and importantly, whether your intended use is one of them.  A qualified land use and zoning attorney is critical at this “due diligence” stage.  An attorney knowledgeable in this complex area of law will prepare a report that provides you with the analysis needed to proceed on an informed basis. 

With that said, if you own a property that is not zoned for the use you intend, it is a good idea to consult with a land use and zoning attorney to review your options.  If the intended use is legitimate and compatible with surrounding uses, you may be well-positioned to obtain a rezoning.

Conclusion

As you can see, zoning is complicated.  Each city and county has a different process.  If you intend to use your property in a manner that is inconsistent with zoning regulations, or if you need an evaluation on zoning, you would benefit greatly from a qualified land use and zoning attorney.  Abrams Law Firm, P.A. primarily practices this area of law.  Our government background gives us a depth of knowledge and understanding of the many issues you are likely to deal with throughout the process. Contact us now.    

Disclaimer: the information and materials provided are general in nature, and may not apply to a specific factual or legal circumstance. An attorney and client relationship should not be implied. Nothing on this page is intended to substitute for the advice of an attorney.


[i] § 166.041, Fla. Stat. (2018)

[ii] Webb v. Town Council of Town of Hilliard, 766 So. 2d 1241, 1244 (Fla. 1st DCA 2000).

[iii] Board of County Comm’rs of Brevard County v. Snyder, 627 So. 2d 469, 474 (Fla. 1993); St Johns County v. Smith, 766 So.2d 1097, 1100 (Fla. 5th DCA 2000).

[iv] Id.

[v] This is a low evidentiary standard. Id. 

[vi] Id.

Five Decisions You Should Make Before Starting A Business In Florida

Introduction

So you have decided to take the plunge into starting your own business and creating your own wealth? Or perhaps you are still mulling it over and are researching what it will take to turn the dream into a reality. Starting a business can be stressful, but you can mitigate that stress by having a plan and knowing the consequences that flow from each decision you make toward building your business. The goal of this article is to summarize the important things to consider before formalizing your plans.

1. Choose your entity

There are 6 types of formal business entities designated by Florida statutes: Corporation, General Partnership, Limited Liability Company (“LLC”), Limited Partnership (“LP”), Limited Liability Partnership, and Limited Liability Limited Partnership.  With the exception of general partnerships, and general partners in limited partnerships, each type of business entity above protects an owner from personal responsibility for the liabilities of the entity itself. However, the degree of protection may vary.  All have certain benefits and some disadvantages depending on the nature of the business venture, immediate and long term plans for growth, need for formalities and other factors.  Statistically, by far the most common entities in Florida are corporations and limited liability companies.[i]  With an LLC, owners are referred to as members; and with corporations, each owner is referred as a shareholder.  Three important considerations in choosing an entity are tax consequences, asset protection, and management structure.

A detailed discussion on the benefits and disadvantages of each business entity is beyond the scope of this article.  However, suffice it to say that if your business is a small to medium-size business with no intention of publicly trading on security exchanges, an LLC is probably the best all-around choice.  This is because an LLC is disregarded as an entity for tax purposes, so no corporate taxes are paid.  Additionally, each member’s protection from personal liability for claims against the LLC is arguably superior to other business entities.[ii]  See § 605.0304(2), Fla. Stat. (2018).  Finally, most of the statutory provisions regarding management structure in the LLC can be altered with the operating agreement, so there is significant flexibility in that regard.  See § 605.0105, Fla. Stat. (2018).  With corporations, by comparison, the statutory provisions dealing with management cannot be changed through the By Laws. See § 607.0206, Fla. Stat. (2018).

Note that each business venture is unique and a more detailed evaluation by a qualified business law attorney is advisable in order to help you determine which type of entity best suits your needs and short-term and long-term goals.  

2. Choose your business’s name

After you decide on a name, which is of course a personal decision, check sunbiz.org to make sure the name is not already taken.  You would also be wise to perform a basic internet search to explore whether your name is already being used in another state, which could lead to a court battle in the future.  If you are interested in protecting your brand, we would recommend getting a trademark attorney who can assist with obtaining federal trademark protection.

Our firm assists businesses by performing a preliminary search of names in the state database.  If you decide to seek trademark protection, we work with a number of excellent trademark attorneys and would be happy to put you in touch.   We take the lead on creating your business, which includes bringing in other specialized attorneys as appropriate.

3. Choose your registered agent

Florida law requires you to name a registered agent for your business entity who maintains a full time office within the state.  If the entity is sued, the registered agent must accept service of process on behalf of the business. Our firm serves as registered agent to businesses for a nominal annual fee.

4. Choose your tax structure

This consideration mainly applies to corporations.  If your corporation has less than 100 shareholders, than you may elect to be taxed as an “S” corporation by completing and submitting IRS Form 2553.  This will allow your corporation to be taxed as a pass-through entity, allowing you to avoid paying corporate taxes in addition to individual taxes. 

This consideration may also be important to an LLC or LP that wishes to be publicly traded in securities exchanges.  Note that federal law prohibits LLCs from being publicly traded.  A way around this prohibition is for the LLC to be taxed as a partnership and structure itself as a Publicly Traded Partnership.  The PTP must meet the requirements of 79 U.S.C. 7704(c). 

5. Choose your management structure

Management structure will vary depending on the type of entity.  With the two more common business entities – corporations and LLCs – the management structure is determined both by applicable statutes and the appropriate entity agreement.  With LLCs, the operating agreement can determine the management structure, including by stating whether the LLC is member-managed or manager-managed.  With corporations, management is determined by applicable statutes, the By Laws and/or the shareholder agreement.  Contact our firm to help you design a management structure that best fits your business model and which is consistent with Florida law.

Conclusion

We are happy to help you construct a plan that is consistent with Florida law and which is both suitable and adaptive to your unique business model over the long term. Have an overall plan, and implement it with confidence. Call or message us when you are ready to get moving.


[i] https://dos.myflorida.com/sunbiz/about-us/yearly-statistics/

[ii] Single member LLCs are not bright line asset protection vehicles as against personal liabilities of the member.  A creditor can take over the member’s interest in the LLC by judgment of the court to foreclose on a member’s unpaid debt.  See§ 605.0503(4), Fla. Stat. (2018).  This threat presumably and similarly exists with single-shareholder corporations in light of the Florida Supreme Court’s decision in Olmstead v. Federal Trade Commission, 44 So.3d 76, 83 (Fla. 2010).