One of the unexpected successes arising out of the last recession is the rebirth and renewed interest in older, historically significant buildings. In many ways, they have enjoyed a renaissance in being repurposed again. This process, known as adaptive reuse, is the tailoring of old structures for new purposes other than those initially intended. As old buildings outlive their original purposes, adaptive reuse offers a process to modify these buildings for new uses while retaining their historic features. Many municipalities are adopting adaptive reuse programs to revitalize existing buildings to preserve local history, contribute to economic vitality, promote small business and create more vibrant neighborhoods. But before new life is breathed into old buildings, there are a number of legal and practical considerations worth bearing in mind.
Deed restrictions and CC&R research should be some of the first legal considerations to explore. Buildings and land uses initially intended for a distinct purpose years ago may have use restrictions that limit a property’s utility today. While this issue may be less common from one commercial building conversion to another, it is often a factor when converting an older residence into an office, studio or commercial enterprise. It is important to study the title report and associated documents to verify whether the proposed use is permitted within, or prohibited by, the governing association documents or property deed restrictions.
The underlying zoning and attendant stipulations or conditions of approval are a second critical legal factor. The existing zoning and approval stipulations are the legal basis for the land use. Proper due diligence should discover potential legal pitfalls by analyzing the underlying zoning, permitted uses, applicable development standards and any restrictive stipulations of approval. Additionally, it is important to identify whether the zoning approval is tied to a specific plan of development that could impact building renovations, architectural modifications or footprint changes.
Parking requirements, development standards and code provisions are a third practical factor to evaluate. With adaptive reuse, the building is to be preserved, which effectively eliminates the idea of starting with a blank slate of vacant land. Consequently, the developer is challenged not only by the building preservation and remodel, but also by existing site constraints like lack of parking, existing access, on-site circulation, building setbacks and more. Some of the best examples of adaptive reuse have struggled to solve the challenges faced with small sites that are often under-parked and overused. The same challenge also exists with current ADA standards retrofitting to older, existing buildings. Identifying possible code deficiencies and their potential solutions early can help one prepare legal arguments to address them. Whether by variance, interpretation, shared parking model or rezone, a variety of legal options exist that can serve as useful tools in solving common problems with adaptive reuse endeavors.
The same logic applies to current building code and engineering standards. Buildings constructed 50 years ago were designed with entirely different code standards, which can make functional changes impractical. As an example, a recent four-story office building was converted into an indoor storage facility but required massive structural analysis and reengineering. Early issue-spotting can prevent major legal problems later in the case of construction defect, negligence or personal injury.
Finally, it is important to study the municipality’s adaptive reuse program and criteria to ensure the project meets the minimum requirements, such as building size, historical significance, incentive area and qualifying criteria. In some instances, there may be a legal standard and test that must be satisfied prior to obtaining formal approval of the program.
It is suggested that developers know the program parameters and hire land use and zoning counsel familiar with that particular municipality’s processes, regulations, norms and likely solutions. Zoning attorneys work directly with city officials, business owners and architects to provide development guidance, streamline the process, reduce the time frame and offer cost savings. An effective zoning attorney with local familiarity and strong municipal relationships is often the key factor in creating a successful project.
Adam Baugh is an owner at Withey Morris, PLC, where he has been practicing land use and zoning law since 2007. He is a seasoned and successful lawyer who regularly works with city councils, planning commissions, and neighborhood groups in representing landowners, developers and businesses in obtaining land use entitlements.
