By Michael Roitman
Commercial leasing transactions move quickly. A prospective tenant identifies a desirable location and negotiates rent, tenant improvement allowances, and other business terms. Whether the tenant’s intended use is legally permitted is often not addressed until after the lease is signed. In practice, many commercial landlords make no representation regarding zoning or permitted use. Most leases are drafted on an “as is” and “where is” basis, leaving the tenant responsible for confirming whether its intended business use is permitted. Tenants frequently sign leases assuming that, because a building previously housed a similar use, their use will be permitted. That assumption is often incorrect.
Nevada’s planning and zoning framework is codified at NRS Chapter 278, which authorizes counties and municipalities to regulate land use through zoning ordinances, conditional-use permits (“CUPs”), and variances. See NRS 278.020, 278.250. Local governments implement these statutes through development codes; in unincorporated Clark County, land use matters are governed by Title 30 of the Clark County Code, the County’s Unified Development Code (2026).
For example, a congregation seeking to lease retail space for a small synagogue must determine whether places of religious assembly are permitted by right or require permits or discretionary approval. Similarly, a pickleball gym must address whether indoor recreation is a permitted use, what parking ratio applies, and whether the proposed buildout triggers a change-of-use review. The analysis should address both the tenant’s present operations and reasonably anticipated expansion. A tenant should disclose the full scope of the proposed business to both counsel and planning staff.
In particular, a pickleball facility offering lessons, leagues, tournaments, food service, merchandise sales, or special events may require staff to evaluate whether the use remains indoor recreation or includes separate instructional, assembly, retail, food-service, or event components. Operational distinctions may materially affect the zoning, parking, occupancy, business-licensing, or permitting requirements. A business license or permit issued in error does not cure the underlying defect. See Bd. of Cnty. Comm’rs of Clark Cnty. v. C.A.G., Inc., 98 Nev. 497, 654 P.2d 531 (1982) (county not estopped from enforcing zoning regulations notwithstanding mistaken issuance of business license and health permit). Thus, before signing a lease, tenants should first contact the applicable planning department. These departments can advise whether the proposed use is permitted by right, and whether prior conditions of approval affect the property. They can also identify zoning stipulations or development conditions affecting the property.
Public zoning is one regulatory layer of land-use regulation. Most commercial property is also subject to private restrictions recorded against title, such as covenants, conditions, and restrictions (“CC&Rs”), reciprocal easement agreements, and exclusivity covenants. Nevada courts interpret CC&Rs under ordinary contract principles. See Vegas United Inv. Series 105, Inc. v. Celtic Bank Corp., 135 Nev. 456, 453 P.3d 1229 (2019). The synagogue may face CC&Rs limiting assembly or non-retail use within a shopping center; the pickleball gym may collide with a fitness exclusive granted to an existing tenant. Recorded instruments provide constructive notice under NRS 111.315 and 111.320. Even where zoning ordinances permit the proposed business activity, tenants must also confirm compliance with private regulatory regimes such as homeowners’ associations, master-planned development restrictions, and commercial owners’ association rules. A use approved by the municipality may still violate private covenants governing the property. Land-use diligence therefore requires review of both public regulations and private recorded restrictions.
Therefore, allocation of compliance obligations under the lease warrants attention. Absent a contrary lease provision, Nevada law may place responsibility for substantial or structural work required by public authorities on the landlord where the work was not within the parties’ contemplation at the time the lease was executed. See Polk v. Armstrong, 91 Nev. 557, 540 P.2d 96 (1975). Because commercial leases frequently reallocate these obligations, tenants should negotiate them expressly before execution. Zoning approval is likewise only one component of the broader regulatory framework. Many businesses also require approvals from building, licensing, health, fire, agricultural, or professional regulatory authorities, all of which should be confirmed during due diligence. Several lease provisions can mitigate these risks: use-specific zoning representations, permitting contingencies, landlord cooperation obligations, and clear allocation of code-compliance costs. Land-use issues are best identified during letter of intent (LOI) negotiations, before lease terms harden. Effective diligence requires coordinated review of zoning, recorded restrictions, regulatory approvals, and lease provisions before execution.
About the author
Michael Roitman is the managing attorney of Roitman Legal, a boutique corporate law firm, and is licensed in Nevada and New York. He advises companies, entrepreneurs, and professionals on commercial real estate, mergers and acquisitions, corporate governance, and other business transactions. Michael also serves Clark County as the District A Planning Commissioner.
About the article
This article was originally published in the Communiqué (Aug 2026), the official publication of the Clark County Bar Association.
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