“Let It Snow, Let It Snow, Let It Snow…But Should Someone Else Be Clearing it?”

Winners, shopping in Calgary

Winter has made its early debut. The snow has begun falling and the salt trucks are already covering the roads (and our cars), and it’s not even December! Despite the bleak forecasts, people are out and about in large numbers, especially in light of the approaching holidays. With the snow comes the ice, and shopkeepers and property owners alike are getting their own shovels and salt stashes ready to clear their walkways and sidewalks for their customers and tenants. Along with the bad weather also come the questions regarding a property owner’s or lessee’s obligations to a tenant or customer to create a safe, and ice or snow free, place to come and go. It’s best to have a plan of action with regard to your property before the bad weather hits and understand your duties to those visiting your property during the winter season. If you’re a landlord, business owner or retail lessee, consider the following:

Landlord/Tenant Obligations

Generally, a landlord has a duty to exercise reasonable care to keep common areas held in the landlord’s control in a safe condition for their tenants, as well as recognize changing conditions and remedy them as they arise. This is especially an issue when the weather turns for the worse. Landlords need to be aware of potential issues as the snow and ice starts to accumulate, keeping on hand the proper materials to keep the walkways clear and safe and be cognizant of problems as they arise so they are fixed in a reasonable manner and within reasonable time.

Business Owners/Lessees

For tenants leasing a retail space, it is important to first look to your retail lease to determine exactly who is obligated, if anyone, to clear and salt the walkways and storefront in bad weather such as snow and ice. If your business or property sits on a municipality owned walkway or roadway, look to your city ordinances to determine whose obligation this may be in inclement weather. Determining whose responsibility it is to take action when winter hits is the first step in preventing injuries on your premises as well as liability for yourself or your business. Whether you’re a retail landlord or tenant, consider whether you need to incorporate language into your lease that speaks to duties with regard to snow and ice if these obligations are not clear.

If your business, like many others, clears and salts its sidewalks and parking lots to encourage people to come in despite the wintery conditions, it is important to have a consistent policy in keeping your premises clear and as safe as possible. With a change in Kentucky law over the last 5 years, even if it is obvious to your customers that weather is poor and the sidewalks slick, the entity occupying the property could still face liability if it doesn’t ensure the care towards its premises is reasonable under the circumstances.

By addressing these potential issues early, landlords, business owners and lessee’s can reduce the possibility of incidents on their premises and injuries to their customers or tenants during the winter season. If you are a landlord, retail owner or tenant and have questions about your obligations, contact the attorneys at McBrayer today.

BMacGregor

Brittany MacGregor is an associate attorney practicing in the Lexington office of McBrayer, McGinnis, Leslie & Kirkland, PLLC. She is a graduate of Transylvania University and the University of Kentucky College of Law. Ms. MacGregor’s practice focuses on real estate law, including title examination, title insurance, clearing title issues, deeds, settlement statements, preparation of loan documentation, contract negotiation and preparation, and lease negotiation and preparation. She may be reached at bmacgregor@mmlk.com or at (859) 231-8780.

This article is intended as a summary of federal and state law activities and does not constitute legal advice.

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Overlay zoning

Many communities that have adopted zoning laws governing the uses that are allowed in the various zones have also adopted overlay zones that control the same property. Overlay zones are just that — they add another layer of regulation to those that control the underlying zone.   Overlay zones are intended to add additional protection the underlying area. The most common types of overlay zones are intended to protect historic areas, neighborhoods or buildings with unique characteristics or environmentally sensitive areas.

Overlay zones can be a trap for the unwary and can add significant time and cost to projects, especially if an owner or his contractor is unaware that the property is subject to overlay regulations in addition to the underlying zoning requirements. For example, if the owner calls the zoning enforcement officer in advance to find out what permits are required to replace a fence or a structure in a residential zone, the response is likely to omit information about the additional requirements in an overlay zone unless the specific question is asked. Based on the incomplete information from the phone call, the owner may have placed a special order for a fence, or paid for a particular architectural design, only to discover that the type of fence or the special design is not permitted in the overlay zone. The best way to avoid this situation is to either provide the building inspection office the exact address of the property and ask the staff if it is governed by an overlay zone in addition to the underlying zone. Alternatively, property owners should hire experienced design or legal professionals who can verify the governing zoning regulations before ordering materials or plans for a specific project that are incompatible with the overlay zone requirements.

House Exterior. Entrance Porch And Front Yard View

However, in the example above, if the fence is already ordered or the owner wants a particular design, it may still be possible to obtain approval for it. Land    use procedures for underlying zones go to boards of adjustment or planning commissions, but approvals and appeals for overlay zone generally to boards that have been created to handle these matters. These boards apply specially adopted guideline and standards to determine if the improvement meets the requirements of the overlay zone. Decisions are made in a public hearing and letters are sent to neighboring property owners informing them of the topic to be discussed. A favorable outcome is more likely to occur if surrounding owners do not object, but even with objections, a reasonable good faith justification goes a long way in securing approval from the board.

If the board votes to disapprove the requested relief, at least one further appeal is generally built in to the governing regulations, either to a land use body, such as the planning commission or directly to court. While appeals to a different land use body have a good chance of success, it is difficult to obtain a court verdict reversing a board’s decision due to the standard of review courts apply to reviewing such matters. The time and cost of a court appeal is also substantial. Accordingly, doing homework at the planning stage of a contemplated improvement will save a lot of frustration, time, and expense in obtaining approval for work on properties in overlay zones.

CWestover

Christine Neal Westover is an attorney in the Lexington office of McBrayer. Ms. Westover has extensive experience practicing law in both the public and the private sector. The focus of Ms. Westover’s experience and area of practice is land use law since her assignment in 1991 as legal advisor to the boards, commissions and divisions of government within Lexington Fayette County on all matters related to planning, zoning and land use law. Ms. Westover has an extremely deep and broad expertise of the laws governing land use in Kentucky and the procedural and substantive complexities that underpin planning and zoning matters. She also has significant experience dealing with governmental divisions such as Building Inspection, Code Enforcement and other administrative bodies due to their regulatory authority in land use matters. Ms. Westover can be reached at cwestover@mmlk.com or (859) 231-8780, ext. 137.

The Limits of Regulating Morality through Zoning Regulations

Zoning regulations are a reflection of a community’s identity and the image it desires to project to the larger world.   Some otherwise lawful activities are perceived to be unsavory, immoral or conducive to crime. As such, they are often regulated more stringently than other lawful businesses. Although some of these activities can generate more police reports and government oversight than other kinds of businesses, often such establishments are safe and well operated. Even so, many community residents have moral, religious, or cultural beliefs that cause them to oppose the existence of these types of businesses anywhere at all. Not only do they fight to shutter existing businesses, but they also support zoning regulations that would prevent any new such businesses from opening within the borders of their community. Examples of such activities include sexually oriented businesses (such as adult nightclubs and book stores), gambling establishments, tattoo parlors/ piercing studios, pool halls and internet cafes that offer video games with sweepstakes prizes.

The law, however, sets limits on the power of zoning to eliminate or unreasonably restrict these types of businesses from operating within a community. For example, many states, including Kentucky, have constitutional and statutory prohibitions from using zoning laws to force a business to close down , if that business is not a criminal enterprise or otherwise in violation of applicable health safety or welfare laws.

If the government used its zoning powers to force such an otherwise lawfully operating business to close down, the business would have a viable claim for taking its property without compensation.   The law also prohibits communities from entirely eliminating otherwise lawful uses from opening within its borders. Instead, zoning regulations must accommodate businesses that are considered morally questionable or in need for more stringent oversight.

Rather than making such activities permitted by right in all zones, an acceptable approach is to make them permitted only in certain business zones, or require spacing them a certain distance from residential zones or making them a conditional use that requires board of adjustment approval and a public hearing. This approach balances the community’s need to control such uses with the businesses’ right in a free country to offer activities that are not considered morally acceptable by a large segment of the population.

CWestover

 

Christine Neal Westover is an attorney in the Lexington office of McBrayer. Ms. Westover has extensive experience practicing law in both the public and the private sector. The focus of Ms. Westover’s experience and area of practice is land use law since her assignment in 1991 as legal advisor to the boards, commissions and divisions of government within Lexington Fayette County on all matters related to planning, zoning and land use law. Ms. Westover has an extremely deep and broad expertise of the laws governing land use in Kentucky and the procedural and substantive complexities that underpin planning and zoning matters. She also has significant experience dealing with governmental divisions such as Building Inspection, Code Enforcement and other administrative bodies due to their regulatory authority in land use matters. Ms. Westover can be reached at cwestover@mmlk.com or (859) 231-8780, ext. 137.

This article is intended as a summary of  federal and state law and does not constitute legal advice.

 

What Does the Board of Adjustment Do?

In communities that have adopted zoning regulations, boards of adjustment serve as a relief valve that can allow for the use of property that is not otherwise permitted under the property’s specific zoning category . Boards of adjustment have the power to grant dimensional variances, which are deviations from the dimensional requirements of a zoning ordinance pertaining to height, width, location of structures, or setbacks. For example, if a property owner wants to build or extend a structure within the required side, front or rear yard, she can appeal to the board to request permission to build closer to the property line. Applicants for a variance must show a need for the variance and that they are not unnecessarily trying to circumvent the zoning regulations. An unusually shaped lot or other unique physical characteristics of the particular property that make it hard to comply with the setback or height requirements are typically justifications for a variance. In one Kentucky case, the appellate court found that it was appropriate to grant a variance to allow building a house closer to the street because there was a sinkhole in the rear yard that prevented building the house farther back. When a board grants a variance it must make certain statutorily required findings of fact. Variances run with the land, so subsequent owners acquire the benefit without further approvals.

Boards of adjustment also have the power to grant conditional uses. Conditional uses are those that are not allowed by right in the zone, but may be approved by the board if there is evidence that the use is suitable for the particular property. Typically, conditions are attached to a permit that ensures that the proposed use will be compatible with the area. For example, a conditional use permit that approves pilates or yoga classes in a private residential home may include conditions limiting the number of students or times of classes. A conditional use that allows live music, perhaps for a nightclub, may include limits on outdoor music or speakers.

Another function of boards of adjustment is to decide administrative appeals. For example, if a property owner applies for a building permit or a certificate of occupancy for a particular use and the permit is denied, the owner can appeal to the board on the basis that the official made an error or misinterpreted the law. The board has the power to overturn the building or zoning official’s decision and order the permit to be issued.   Another type of administrative appeal is when a property owner wants to change one type of legal nonconforming use to another . A legal nonconforming use is one that has been ongoing on the property and was once legal in that zoning category, but the zoning regulations subsequently changed to prohibit it.   In appeals that involve the changing nonconforming uses the board must determine that the new use is as intensive or less intensive than the previous use. If the change of use is approved the property owner does not need to obtain a zone change to engage in the proposed use.

Board of adjustment matters are considered due process proceedings.   Notice letters are sent to neighboring property owners, and they have a right to attend the hearing and speak. Many local regulations also require the posting of a sign to give notice of the hearing. A legal advertisement appears in the local newspaper as well. Because neighbors are given notice, it is always a good idea to talk to them in advance of the hearing to discuss any concerns they may have about the proposal prior to the hearing.

 

CWestover

 

Christine Neal Westover is an attorney in the Lexington office of McBrayer. Ms. Westover has extensive experience practicing law in both the public and the private sector. The focus of Ms. Westover’s experience and area of practice is land use law since her assignment in 1991 as legal advisor to the boards, commissions and divisions of government within Lexington Fayette County on all matters related to planning, zoning and land use law. Ms. Westover has an extremely deep and broad expertise of the laws governing land use in Kentucky and the procedural and substantive complexities that underpin planning and zoning matters. She also has significant experience dealing with governmental divisions such as Building Inspection, Code Enforcement and other administrative bodies due to their regulatory authority in land use matters. Ms. Westover can be reached at cwestover@mmlk.com or (859) 231-8780, ext. 137.

This article is intended as a summary of  federal and state law and does not constitute legal advice.

Check the Zoning Regulations Before Operating a Business Out of Your Home!

Modern technology and our ever-changing economy   are causing more people to consider starting up or basing their existing businesses from home.  Many communities have embraced this concept and have enacted zoning regulations that make it easier to do just that.  Some jurisdictions, however, still have regulations on their books that make operating a business from home a real challenge.  Regardless of where your community falls on this spectrum, it is important to know what the rules are before you start operating a business from your residence.  If you live in a community without any zoning regulations you can do just about anything you want to on your property but it is advisable to check to make sure there are no recorded restrictive covenants that limit or prohibit non-residential or commercial activities in the subdivision.  Assuming that there are zoning laws that apply to the property, or if you are uncertain whether your area is subject to zoning, the first step is to call the local government.  There are many different names for the division of government that may regulate such matters, such as building inspection, codes and permits, or the zoning office, but if you call the general city or county  number and explain what  you need to know, they will direct you to the right place.

Some communities allow home offices and home occupations, but limit the types of uses, square footage  of the non-residential use within the house, prohibit the use of accessory buildings for this purpose or limit employees to those who reside in the house. In some communities home occupations and home offices are permitted by right, but in others, such uses are allowed only as a conditional use that must be approved by the local board of adjustment after a public hearing, including notice to adjoining property owners.    There is also wide variety as to which uses are allowed as home occupations or home offices.  For example in some communities,   artists, music teachers and upholsterers  may  sell  their services or products  from  their residences, but  beauticians, yoga instructors   or caterers  may not.   Further, the type of home occupation permitted in a community can vary by the zone in which the property is located.  For example, in some places persons who live in a residence in an agricultural zone are permitted to engage in a wider range of home business activities than those in residential zones.

If you live in an area that allows home occupations as a conditional use, and your business activity fits within what is permitted by the regulations, you will need to complete and file an application that must be approved before you can start your home business. .   It is always a good idea to contact your neighbors prior to the hearing to inform them of your proposed activities.  It is always better to answer their questions or address their concerns before the public hearing. Boards of adjustment have the discretion to impose conditions on the operation of the use, and can deny the permit if the evidence shows that the use could be disruptive or out of character with the area.  Reaching out to the neighbors will go far in obtaining a favorable outcome.

If you live in a community that does not allow the proposed use in your home, do not despair.  Many local jurisdictions are coming around to the modern reality that business needs are changing. To retain and attract new residents they must move with the times and enact regulations that are more accommodating to the current economic environment.  The way to change the law is to talk to the local planning office and elected officials about enacting a zoning ordinance text amendment that would allow more flexibility in operating businesses from the home.

In addition to obtaining local zoning permits, many home-based businesses are subject to state or local health department regulations.  Child care operators, caterers, and bed and breakfast establishments, among other businesses,   must also comply with other applicable regulations.

CWestover

Christine Neal Westover is an attorney in the Lexington office of McBrayer . Ms. Westover has extensive experience practicing law in both the public and the private sector. The focus of Ms. Westover’s experience and area of practice is land use law since her assignment in 1991 as legal advisor to the boards, commissions and divisions of government within Lexington Fayette County on all matters related to planning, zoning and land use law. Ms. Westover has an extremely deep and broad expertise of the laws governing land use in Kentucky and the procedural and substantive complexities that underpin planning and zoning matters. She also has significant experience dealing with governmental divisions such as Building Inspection, Code Enforcement and other administrative bodies due to their regulatory authority in land use matters. Ms. Westover can be reached at cwestover@mmlk.com or (859) 231-8780, ext. 137.

This article is intended as a summary of  federal and state law and does not constitute legal advice.