Summary. Whether you can build something is decided by a local body applying a local ordinance, in a process more political than business owners expect and more procedural than political actors expect. This article covers the comprehensive plan and the zoning ordinance, uses permitted by right versus discretionary approvals, and the four entitlement paths: conditional use permits, variances, rezonings, and planned unit developments. It then covers site plan and subdivision review, nonconforming uses, vested rights and development agreements, exactions and takings under Nollan, Dolan, Koontz, Sheetz, Penn Central, and Lucas, ripeness after Knick, and constraints including RLUIPA and historic preservation.

A restaurant group finds a vacant building on a commercial corridor. The zoning map shows it in a district where "restaurant" is listed as a permitted use. The lease is signed, the design is commissioned, and $340,000 is spent on kitchen equipment and buildout.

The building permit is denied. Three reasons.

The district permits "restaurant," but the ordinance defines that term to exclude establishments with drive-through service, which the concept requires — that use needs a conditional use permit. The site provides 22 parking spaces where the ordinance requires one per 100 square feet of dining area, or 41. And the corridor sits in an overlay district requiring design review, which adds ninety days and an architectural standard nobody mentioned.

The conditional use permit is obtainable. The parking variance is not, because the ordinance requires proof of a hardship arising from the physical characteristics of the land, and "our concept needs more seats" is not one. The project is redesigned at a cost of six months and most of the equipment order.

Land use is the area of law where the answer is almost never in the statute a business owner would think to read. It is in a municipal code, a zoning map, an overlay, a design guideline, and a set of conditions imposed on the property in 1998.

The short answer

Zoning is a delegated police power. States authorize municipalities to regulate land use through enabling acts, and municipalities exercise it through a zoning ordinance and map. Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926), upheld comprehensive zoning as a valid exercise of that power.

The hierarchy:

  1. Comprehensive plan — the policy document stating what the community intends. In some states zoning must be consistent with it; in others it is advisory.
  2. Zoning ordinance — the regulation: districts, permitted uses, and bulk standards.
  3. Zoning map — which district applies to which parcel.
  4. Overlays — additional requirements layered on the base district (historic, floodplain, corridor, design review, airport).
  5. Subdivision and site plan regulations — how land is divided and developed.
  6. Building, fire, and health codes — construction and occupancy.

Three questions decide any project:

  1. Is the use permitted by right, permitted conditionally, or prohibited?
  2. Does the project meet the bulk standards — setbacks, height, coverage, floor area ratio, parking, landscaping?
  3. What process applies — ministerial permit, administrative site plan review, or a discretionary public hearing?

The most useful early step is a zoning verification letter from the municipality, which costs little and produces a written statement of the district, permitted uses, and known violations.

Permitted uses, conditional uses, and the process that follows

Permitted by right. The use is allowed in the district. Approval is ministerial — if the application meets objective standards, the permit must issue. No hearing, no discretion, and no neighbor opposition that matters legally.

Conditional use / special exception / special use permit. The use is allowed if specified conditions are satisfied. The legislature has already determined the use is generally compatible; the board decides whether it is appropriate at this location and what conditions apply. The applicant carries the burden on the ordinance's criteria, which typically address traffic, noise, hours, buffering, lighting, and compatibility.

The distinction matters: a conditional use is quasi-judicial in most states, meaning the decision must be based on the record and supported by findings, and the standard of review on appeal is whether substantial evidence supports it. Generalized neighbor opposition is not substantial evidence. A body that denies a conditional use because thirty people spoke against it, without evidence tied to the ordinance's criteria, is reversed with some regularity.

Prohibited. The use is not allowed. The paths are a rezoning, a text amendment, or a use variance where the state permits one.

Practical guidance. Read the ordinance's definitions first. Whether a business is a "restaurant," a "warehouse," a "light manufacturing" use, or a "personal service establishment" is determined by a definition that may be decades old and may not contemplate the actual business. A brewery with a taproom, a self-storage facility with an office, a medical practice with an infusion suite, and a data center are all classification problems before they are approval problems.

Variances

A variance is relief from a dimensional standard (an area variance) or, where permitted, from the use restriction (a use variance). Many states prohibit use variances entirely.

The classic test for an area variance requires the applicant to show:

  1. Unique physical circumstances of the property — shape, topography, size, or an unusual condition — not shared generally by other properties in the district;
  2. That because of them, the property cannot be developed in strict conformity with the ordinance;
  3. That the hardship was not self-created;
  4. That the variance will not alter the essential character of the neighborhood or be detrimental to public welfare; and
  5. That it is the minimum relief necessary.

Use variances, where available, require a harder showing — commonly that the property cannot yield a reasonable return if used only as zoned, that the hardship is unique, and that the use will not alter the neighborhood's character.

What is not a hardship: economic disadvantage; the fact that a more profitable use exists; a self-created condition, including one created by the applicant's own subdivision or purchase with knowledge of the restriction; and inconvenience.

Because the standard is genuinely demanding, an applicant needing substantial relief is often better served seeking a rezoning or a planned unit development than stacking variances.

Rezoning, text amendments, and planned unit developments

Rezoning changes the district classification of a parcel. It is a legislative act in most states, which has two consequences: the deference on review is high (the "fairly debatable" standard), and the decision is political. A minority of states treat site-specific rezonings as quasi-judicial, requiring findings and evidence, following Fasano v. Board of County Commissioners, 507 P.2d 23 (Or. 1973).

Spot zoning is the doctrine limiting rezonings that single out a small parcel for treatment inconsistent with the surrounding area and the comprehensive plan, for the benefit of the owner rather than the public. Courts examine parcel size, the degree of inconsistency with the plan, the benefit to the owner versus the community, and whether conditions have changed. The label is applied inconsistently, but a rezoning supported by the comprehensive plan and by changed conditions is defensible.

Conditional rezoning and contract zoning. Municipalities frequently want commitments in exchange for a rezoning. Some states permit conditional zoning — the municipality unilaterally attaches conditions — while treating contract zoning, where the municipality bargains away its legislative discretion by agreement, as invalid. The line is thin, and the practical answer in most jurisdictions is a development agreement authorized by statute.

Text amendments change the ordinance itself rather than the map. Where a proposed use does not fit any definition, amending the text to create or clarify a use category can be cleaner than forcing the project into an ill-fitting classification.

Planned unit developments. A PUD approves a master plan for a site, substituting negotiated standards for the base district's requirements in exchange for design quality, open space, mixed use, or public benefits. PUDs offer flexibility on setbacks, height, mix, and phasing, and they typically bind through recorded documents and conditions. They also take longer and cost more, and they can create a permanent, parcel-specific regulatory regime that a future owner must live with.

Form-based codes regulate building form and its relationship to the street rather than use. Where a municipality has adopted one, use classification questions largely disappear and design standards become the constraint.

Site plan review and subdivision

Site plan review examines layout, access, circulation, parking, drainage, lighting, landscaping, buffering, and utilities. It is typically administrative or handled by a planning commission, and its standards should be objective. Where site plan review is used as a vehicle for discretionary judgments about a use permitted by right, applicants have a real argument that the municipality is exceeding its authority.

Subdivision governs the division of land into lots, and the plat process typically involves sketch, preliminary, and final plat stages. Statutes commonly require dedication of streets and utilities, improvement guarantees (bonds or letters of credit), and compliance with the comprehensive plan.

Practical issues that recur:

  • Improvement guarantees — negotiate the form, the amount, and the release schedule as improvements are accepted.
  • Maintenance obligations — who maintains stormwater facilities and private streets, and how a homeowners association is funded.
  • Phasing — vesting of approvals for later phases, and what happens if the market changes.
  • Concurrency and adequate public facilities ordinances, which condition approval on the availability of roads, schools, water, and sewer capacity.

Nonconforming uses and vested rights

Nonconforming uses. A use lawfully established before a zoning change that would now be prohibited may continue as a legal nonconforming use. Ordinances universally restrict them:

  • No expansion or enlargement, or expansion only with approval.
  • No change to another nonconforming use, or only to a more restricted one.
  • Loss on discontinuance — commonly six to twelve months of cessation, with states split on whether intent to abandon must also be shown.
  • Loss on destruction beyond a threshold percentage of value, which is why a nonconforming building that burns may not be rebuilt.
  • Amortization in some states — a period after which the use must cease without compensation, which several states reject as a taking.

For a buyer, nonconforming status is a diligence item with real value implications: confirm it in writing from the municipality, and confirm the rebuild and expansion rules.

Vested rights. At what point does a developer's right to proceed under existing regulations become protected from a change in the rules? The answer is state-specific and falls roughly into three approaches:

  • Building permit plus substantial reliance — the majority rule, requiring a validly issued permit and substantial expenditures in good faith reliance.
  • Late vesting — some states require actual construction.
  • Early vesting — some states vest on the filing of a complete application or approval of a preliminary plat, by statute.

Development agreements, authorized by statute in many states, are the reliable answer: a contract between the developer and the municipality freezing applicable regulations for a defined term in exchange for commitments on phasing, infrastructure, design, and public benefits. Where available, they resolve the vesting question that the common law leaves uncertain.

Exactions, impact fees, and the takings framework

Municipalities frequently condition approvals on dedications of land, construction of improvements, or payment of fees. The constitutional limits come from a line of Supreme Court cases.

Nollan and Dolan. Nollan v. California Coastal Commission, 483 U.S. 825 (1987), requires an essential nexus between the condition and the legitimate governmental interest that would justify denying the permit. Dolan v. City of Tigard, 512 U.S. 374 (1994), adds rough proportionality — the condition must be roughly proportional in nature and extent to the impact of the proposed development, based on an individualized determination.

Koontz. Koontz v. St. Johns River Water Management District, 570 U.S. 595 (2013), extended the framework two ways: it applies to a demand for money, not only for real property, and it applies where the permit is denied because the applicant refused the condition, not only where it is granted subject to one.

Sheetz. Sheetz v. County of El Dorado, 601 U.S. 267 (2024), held that the Nollan/Dolan framework applies to conditions imposed by legislation — such as a generally applicable impact fee schedule — and not only to administrative, ad hoc conditions. The Court did not resolve whether the individualized determination Dolan requires must be made parcel by parcel for legislative fees, leaving the practical scope to lower courts.

The practical consequence is significant: impact fee programs long assumed to be insulated because they were adopted by ordinance are now subject to nexus and proportionality scrutiny, and municipalities are revisiting the nexus studies supporting their fee schedules.

Regulatory takings more generally:

  • Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992) — a regulation depriving land of all economically beneficial use is a per se taking, unless the restriction inheres in background principles of state property and nuisance law.
  • Penn Central Transportation Co. v. New York City, 438 U.S. 104 (1978) — the ad hoc balancing test for everything else, weighing the economic impact of the regulation, the extent of interference with distinct investment-backed expectations, and the character of the governmental action.
  • Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982) — a permanent physical occupation is a per se taking.
  • Cedar Point Nursery v. Hassid, 594 U.S. 139 (2021) — a regulation granting third parties a right to access private property can be a per se physical taking even if temporary and intermittent.

Ripeness. Williamson County Regional Planning Commission v. Hamilton Bank, 473 U.S. 172 (1985), had required a plaintiff to obtain a final decision and to exhaust state compensation procedures before bringing a federal takings claim. Knick v. Township of Scott, 588 U.S. 180 (2019), overruled the state-litigation requirement, holding that a property owner may sue in federal court under § 1983 as soon as the taking occurs. The final decision requirement survives — the owner must generally have applied and been denied, and pursued available variance or waiver procedures, so the extent of permitted development is known.

Constitutional and statutory constraints on local authority

Due process. Substantive due process claims against land use decisions face a high bar in most circuits, requiring conduct that is arbitrary in the constitutional sense — often described as shocking the conscience or egregious. Procedural due process attaches where a protected property interest exists, which typically requires an entitlement rather than a mere expectation; a landowner with an application subject to genuine discretion usually lacks one.

Equal protection. A "class of one" claim, recognized in Village of Willowbrook v. Olech, 528 U.S. 562 (2000), requires intentional differential treatment from similarly situated parties with no rational basis. These claims are pleaded often and succeed rarely, but they are the natural theory where a municipality treats one applicant differently from an identical neighbor.

First Amendment. Sign regulations must contend with Reed v. Town of Gilbert, 576 U.S. 155 (2015), which held content-based sign restrictions subject to strict scrutiny, and City of Austin v. Reagan National Advertising of Austin, LLC, 596 U.S. 61 (2022), which upheld an on-premises/off-premises distinction as facially content-neutral. Adult use regulation follows the secondary effects doctrine of City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986).

RLUIPA, 42 U.S.C. §§ 2000cc et seq., applies where a land use regulation imposes a substantial burden on religious exercise in an individualized assessment, requiring the government to show a compelling interest pursued by the least restrictive means. It separately prohibits unequal treatment of religious assemblies relative to nonreligious assemblies, discrimination, and total exclusion or unreasonable limitation of religious assemblies within a jurisdiction. Municipalities lose RLUIPA cases regularly, and the statute provides attorney's fees.

Fair Housing Act. Zoning that discriminates against protected classes, or that produces a discriminatory effect without adequate justification, violates the Act. Municipalities must also make reasonable accommodations in rules and policies when necessary to afford persons with disabilities an equal opportunity to use and enjoy a dwelling — the provision most frequently invoked for group homes and recovery residences, and the one municipalities most frequently mishandle.

Telecommunications Act. Section 332(c)(7) limits local authority over wireless facilities: decisions must be in writing, supported by substantial evidence, made within reasonable time frames, and may not unreasonably discriminate or effectively prohibit service, and may not be based on RF emissions within FCC limits.

Federal and state preemption also reach manufactured housing, agricultural operations under right-to-farm statutes, group homes under state statutes, solar and wind facilities in several states, and cannabis operations, which are regulated by an intricate state-local overlay.

State housing statutes. A growing number of states have enacted laws overriding local control to enable housing production — density bonuses, accessory dwelling unit mandates, streamlined ministerial approval for qualifying projects, builder's remedy provisions where a housing element is out of compliance, and limits on parking minimums near transit. These are among the most consequential developments in the field and vary enormously by state.

Historic preservation and environmental review

Historic districts and landmarks. Designation subjects exterior alterations, demolition, and often new construction to review by a preservation commission applying design standards. Penn Central itself upheld landmark designation against a takings challenge. Practical points: designation can occur over an owner's objection in most jurisdictions; a certificate of appropriateness is a separate approval on its own timeline; and demolition by neglect ordinances impose affirmative maintenance duties. Federal and state rehabilitation tax credits can materially change project economics for a certified historic structure.

Environmental review. Federal NEPA review applies only where there is a federal action — funding, a federal permit such as a Clean Water Act § 404 wetlands permit, or federal land. Several states have their own environmental policy acts (California's CEQA and New York's SEQRA are the most consequential) that apply to discretionary local approvals, which means an entitlement that would otherwise take four months can take two years, and which supplies a procedural vehicle for project opponents.

Wetlands, floodplain, and coastal. Section 404 jurisdiction narrowed substantially after Sackett v. EPA, 598 U.S. 651 (2023), which limited the Clean Water Act's reach to wetlands with a continuous surface connection to relatively permanent waters — though several states regulate more broadly under their own statutes. Floodplain development requires compliance with the local ordinance adopted under the National Flood Insurance Program, and coastal states add their own management programs.

A worked example

Bellhaven Development proposes a 96-unit apartment building with ground-floor retail on a 2.3-acre parcel zoned for general commercial use.

Step 1 — Verification, before the option is signed. A zoning verification letter confirms the district, that multifamily is a conditional use, that the maximum height is 45 feet where the design needs 58, and that a corridor overlay imposes design review. It also discloses an open code violation from a prior owner.

Step 2 — Path selection. Counsel models three paths: conditional use plus height variance (the variance is unlikely to meet the hardship test); rezoning to a mixed-use district (politically difficult, and the comprehensive plan does not support it); and a planned unit development consistent with the plan's designation of the corridor for mixed-use intensification. The PUD is selected.

Step 3 — Pre-application. Bellhaven meets with staff, then with the neighborhood association, six months before filing. Two concerns emerge: parking spillover and construction traffic. Both are addressable.

Step 4 — The application. The submission includes a traffic impact study, a stormwater concept, a parking demand analysis supporting a reduction from 1.8 to 1.25 spaces per unit based on transit proximity, a shadow study, and a design package responsive to the overlay's standards. The findings the ordinance requires are drafted for the commission rather than left to staff.

Step 5 — Exactions. The city requests a $640,000 payment for off-site intersection improvements plus dedication of a 12-foot strip for a future trail. Counsel invokes Nollan, Dolan, Koontz, and Sheetz: the intersection contribution is supported by the traffic study's proportional share (roughly $310,000), and the trail dedication lacks a nexus to any impact of the project. The city reduces the contribution and converts the trail to a voluntary easement in exchange for a density bonus.

Step 6 — Approval and conditions. The PUD is approved with 21 conditions, including construction hours, a truck routing plan, a parking management program, and a phasing schedule. Counsel negotiates the conditions to be objective and measurable, because ambiguous conditions become permit denials at building permit stage.

Step 7 — Vesting. The approval is memorialized in a development agreement freezing applicable regulations for seven years, with commitments on affordable units and infrastructure timing.

Elapsed time: fourteen months from verification letter to recorded agreement. What made it work: the path selection at the beginning, the pre-application engagement, and the willingness to press the exaction question with the case law rather than simply paying.

A strategy checklist

Before committing

  • Obtain a zoning verification letter and a third-party zoning report.
  • Read the definitions section for your use, and the overlay requirements.
  • Confirm bulk standards against a real site plan: setbacks, height, coverage, FAR, parking, loading, landscaping, and open space.
  • Search for open permits, violations, and prior conditions recorded against the property.
  • Confirm nonconforming status in writing if you are relying on it, including rebuild and expansion rights.
  • Confirm utility and road capacity, and whether a concurrency or adequate public facilities ordinance applies.
  • Identify whether state environmental review attaches to the approvals you need.
  • Identify the decision-makers and the appeal path, including any state statute that changes the local rules.

Building the application

  • Choose the path — by right, conditional use, variance, rezoning, or PUD — before spending on design.
  • Meet with staff early and often; staff recommendations carry substantial weight.
  • Engage neighbors before filing, not at the hearing.
  • Retain the technical consultants whose studies the findings will rest on: traffic, stormwater, noise, environmental, and market.
  • Draft the findings the body must make, tied to the ordinance's criteria and supported by record evidence.
  • Anticipate conditions and propose reasonable ones yourself.

At the hearing and after

  • Build the record — every study, every exhibit, and every response to opposition, submitted in writing.
  • Preserve objections to unlawful conditions and exactions on the record.
  • Confirm the decision includes written findings; their absence is often the strongest ground on appeal.
  • Calendar the appeal deadline, which is frequently 30 days or less and is jurisdictional.
  • Obtain a development agreement or otherwise perfect vested rights.
  • Track condition compliance deadlines through construction.

Frequently asked questions

The zoning map says our use is permitted. Isn't that the end of it? No. Check the definitions, the overlays, the bulk standards, and any conditions recorded on the parcel from a prior approval.

Can we get a variance because the project does not pencil otherwise? Almost certainly not. Economic hardship is not the hardship the standard requires; the hardship must arise from the physical characteristics of the land.

The neighbors are opposed. Does that matter legally? For a legislative rezoning, politically yes and legally little. For a quasi-judicial conditional use, generalized opposition is not substantial evidence, and a denial resting on it is vulnerable on appeal.

The city wants $600,000 for road improvements. Do we have to pay? Only to the extent of an essential nexus and rough proportionality to the project's impacts. After Sheetz, that framework applies even to legislatively adopted fee schedules. Ask for the nexus study.

Our building is nonconforming and burned down. Can we rebuild? It depends on the ordinance's damage threshold and the state's rules. Confirm before you buy, not after.

Do we have to exhaust local remedies before suing? Knick eliminated the state-litigation requirement for federal takings claims, but the final decision requirement remains, and state law appeal deadlines are short and jurisdictional.

How long does entitlement take? By-right permits, weeks. Conditional use, three to six months. Rezoning or PUD, nine to eighteen months. Add a year or more where state environmental review applies.

Can the city change the rules after we are approved? Unless rights have vested or a development agreement locks them, frequently yes. Vesting rules vary by state, which is why development agreements exist.

Conclusion

Land use is the only area of commercial law where the decision-maker is a group of volunteers applying a local ordinance in a room full of neighbors, and where the legal doctrine — takings, due process, RLUIPA — matters mostly as leverage rather than as a remedy anyone wants to pursue.

The projects that get built are the ones where somebody read the definitions before the lease was signed, chose the right approval path before the architect was retained, built a record that supports the findings the ordinance requires, and knew enough about Nollan and Dolan to negotiate an exaction rather than pay it.

The projects that do not get built usually failed at the first of those steps, months before anyone knew there was a problem.

Appeals and judicial review

Losing at the local level is not the end, but the path is narrow and the deadlines are short.

Administrative appeal first. Most ordinances route an appeal from a staff determination or a permit denial to a board of zoning appeals before any court involvement, on a deadline commonly measured in 10 to 30 days from the written decision. Failure to exhaust that step is fatal to judicial review in most states, and the deadline is treated as jurisdictional rather than as a limitations period subject to equitable tolling.

The vehicle in court is usually a petition for writ of certiorari or a statutory appeal on the record, not an ordinary civil complaint. That distinction matters: review is confined to the record made below, new evidence is generally inadmissible, and a party that failed to submit its traffic study or raise its objection at the hearing cannot supply the deficiency later. Building the record is therefore a litigation strategy executed at a public meeting.

Standards of review track the nature of the decision. A legislative act — a rezoning or text amendment in most states — is reviewed under a highly deferential "fairly debatable" standard and will be upheld if any rational basis supports it. A quasi-judicial act — a conditional use, variance, or site plan approval — is reviewed for whether substantial evidence in the record supports the findings, whether the body applied the correct legal standard, and whether it afforded due process. A ministerial act is reviewable by mandamus, because there was no discretion to exercise.

Remedies. Courts typically remand rather than order approval, which means a successful appeal buys another hearing rather than a permit. Some states permit a court to direct issuance where the record admits of only one result. Damages under § 1983 are available for constitutional violations, and attorney's fees under § 1988 make a viable federal claim economically rational in a way that a state-law appeal often is not — which is why RLUIPA, Fair Housing Act, and Telecommunications Act theories are pleaded whenever the facts support them.

Standing. Neighbors and civic associations frequently challenge approvals. Most states require a showing of special damages different in kind from the general public, though several are more permissive, and some ordinances confer standing on anyone who appeared at the hearing. An applicant should assume that any approval will be appealable by the opposition and should build the record accordingly.

Practical counsel. Preserve every objection on the record, in writing. Ask for written findings, because their absence is the most reliable ground for reversal. Calendar the appeal deadline the day the decision issues. And weigh, honestly, whether winning a remand is worth a year — for many projects, a redesign that avoids the disputed approval is faster and cheaper than being right.

Working with the community

The legal analysis sets the boundaries; community process determines what actually happens inside them. Three practices distinguish projects that get approved from projects that get delayed into abandonment.

Engage before you file. By the time an application is public, opposition has organized around whatever the first rumor was. Meeting with the neighborhood association, the immediately adjacent owners, and any organized civic group before filing lets the applicant frame the project, hear the real objections, and modify the design where modification is cheap. Objections raised at a hearing cost far more to address than the same objections raised over coffee three months earlier.

Distinguish the objection from the position. Neighbors rarely object to density in the abstract. They object to headlights sweeping a bedroom window, to trash pickup at 5:00 a.m., to construction trucks on a residential street, and to losing on-street parking. Each of those has an engineering answer — a landscape buffer, a condition on service hours, a truck routing plan, a parking management program — and each answer converts an opponent into a neutral party. A developer that arrives with those solutions already in the application is negotiating from a different position than one defending a plan.

Give the decision-makers something to say yes to. A commission member who wants to approve a project needs findings they can articulate, evidence in the record supporting them, and conditions that answer the concerns raised. Supplying the draft findings and proposing reasonable conditions is not presumptuous; it is the single most effective thing an applicant can do, and staff generally welcome it.

Two cautions. First, commitments made in a community meeting have a way of becoming conditions of approval, so make them deliberately and in writing. Second, ex parte contacts with members of a body acting in a quasi-judicial capacity are restricted in many jurisdictions and can invalidate a decision. Know which capacity the body is acting in before picking up the phone.

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This article is provided for general informational purposes and does not constitute legal advice. Zoning is local law, vesting and variance standards differ by state, and appeal deadlines are short and jurisdictional. Consult qualified land use counsel before acquiring property, signing a lease, or filing an application.