Ounce of Prevention or Pound of Cure? – Using Care in Planning and Zoning Matters for the Expansion of Health Care Facilities

Our nation’s health care providers face daunting challenges today: uncertainty in the implementation of health care reform, the large influx of baby boomers entering their senior years, and disputes involved in the pursuit of Certificates of Need for new facilities, all impact efforts to supply an appropriate level of resources for care. Meanwhile, most local governments regulating health care facility expansion are constrained by flat or declining tax revenues and voters who are not inclined to support increased fees and taxes in these tough economic times. As a consequence of these legitimate but divergent forces, it is not surprising that comparatively little time and attention are given to how local zoning regulations can facilitate, rather than hinder the expansion needs of health care providers.

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While the mission of the local hospital clearly is one of the most important and benevolent ones in any community, and major health systems employing thousands of people are important stakeholders in any region’s economic development, the local health care system is not entitled to any special benefits when it comes to compliance with zoning regulations. Local governments bear the burden of enforcement of zoning regulations, regardless of the importance of the property involved, and a city or county will enforce its zoning regulations against the local hospital with the same vigor it applies to industrial, commercial or residential developments. Unlike some for-profit businesses that can “vote with their feet” and relocate to other areas if the local atmosphere is not conducive to growth, the health care provider will almost certainly remain in the same municipality for the long haul.

Given these constraints, it behooves the local health system to hire competent counsel in order to be well informed about local regulations before undertaking any expansion involving the development of real estate. Land use counsel can deploy its skill and experience with the rezoning process to make sure procedures are undertaken correctly and to ensure that the permitted uses include not only the currently anticipated uses but also a broad range of potential future uses to avoid having to return for the authority’s permission at a later date following a change in use. Subsequent assistance by counsel with the site plan approval process can also be invaluable in ensuring a viable expansion.