Exceptions To The Rules
This Is A Member-Only Page
Invest Web Homepage
Unlike variances or zone changes, exceptions are built into a zoning category that permit certain uses within the category, without any further required proceedings. For example, a single-family residential district, R-1, may permit, by exception, the development of a day care center, church, a park, or a school.
Special Use Permits: Some zoning codes will omit certain uses from a zoning category. These special uses (i.e., hospitals, funeral homes, cemeteries, schools) are allowed in that particular zoning classification only by obtaining a special use permit and the permission of local zoning authority.
Conditional Use: A conditional use permits a use of the property that the zoning of the property does not include. Conditional use permits are usually justified after a public hearing and a finding that they fit with the goals of the community's master plan and are essential to the public interest. An example of a conditional use may be a nursery school operating in a residential-use only zone or a nursery school on a lot in an area that is zoned for residential use.
Non-Conforming Use:
Non-conforming use may be a legal violation of the current zoning ordinance because the use of the land or building existed before the ordinance was passed. Nonconforming uses are often referred to as "grandfathered" uses. An example of a nonconforming use would be a small neighborhood party store, or perhaps a dentist's office, having parking spaces for 8 cars while current regulations require spaces for 12.
There are gambles with a nonconforming use:
Local zoning authorities can change their minds and take steps to gradually cancel the nonconforming use over time; you can lose the grandfathered right if you substantially change the existing use of the business. For example, if a garage becomes a video store. if your building is damaged or destroyed and has to be rebuilt because of a fire, you shut down operations for several months (the length of time varies with local law), you discontinue operations entirely, or you significantly expand your business operations (i.e., your garage now includes an auto parts store).
A nonconforming user cannot be ordered to discontinue operations or to change an already established use of his or her property due to zoning noncompliance. However, don't assume that this right can never be taken away. You can lose a nonconforming use, as stated in the previous paragraph, when there is a change in use, suspension of operations for a period of time, or discontinuance of operations. Variance:
A variance is a request to deviate from current zoning requirements. If granted, it permits the owner to use his land in a way that is ordinarily not permitted by the zoning ordinance. It is not a change in the zoning law but a waiver of a certain requirement of the zoning ordinance. Examples where a variance might be apply would be to build a gazebo in the back yard, or to add a second story in a one-story zone, or to allow the owner of an odd-shaped lot to reduce slightly the setback requirements in order to fit a building. Zoning Board of Appeals: Every municipality has its own rules to ensure an orderly and efficient procedure for variance requests. These procedures vary somewhat, however, they follow the same basic pattern which begins with the filing of an application for a variance (and payment of a fee) to the local zoning appeal board. Once filed, the zoning office notifies adjacent property owners, and sometimes all other property owners within a prescribed distance. It typically gives them an opportunity to present their views in writing or in person at an open public hearing. If there is any objection, and sometimes even if there is none, you would attend the hearing and present your case. (In some areas, there is only one hearing; in others several.) If there is a minimum of controversy, and everyone else in your community has previously received a similar variance, chances are you will probably be successful.
If you want to change the permitted use of your land, you might have to prove that the new use you have in mind preserves the appearance and ambience of neighboring properties, is applicable only to your unique piece of property and not to surrounding properties, and, more importantly, the existing restrictions create a serious hardship on you. "Hardship" is very hard to define. The answer to that turns initially on the circumstances and the general objectives of zoning in your neighborhood, the nature of the change, its effect on adjacent neighbors, and a practical difficulty in using the property.
If you want a variance in the size of the structure, make sure that the project is modest, blends in and is in character within the existing neighborhood, can't be readily achieved in some other way, and there is an economic burden caused should the board refuse the variance. Some requests for a variance - such as the same request that everyone else nearby has already obtained -- are a simple matter that you can handle alone. However, if the variance is important to you, or time is important, and you do not want to risk getting turned down, or the matter is sort of unique, you may need the assistance of an attorney familiar with local zoning laws and practices. In fact it may also be necessary to obtain an architect or other expert to assist the attorney.
Whether you are successful depends heavily on a number of factors, among them any supporting data (e.g., drawings, color slides, building plans, testimony, appraisals), the makeup of the zoning board, public comment, and the impact of your proposed change on the community and their quality of life. The approval or denial of variances is largely discretionary. It goes without saying that certain amount of politics could be involved in getting an application approved, and that schmoozing with your neighbors would not hurt your cause. Variance requests for new activities in a strictly residential zone (i.e., opening a roadside juice bar) would not be readily granted as opposed to requests that seek only minor deviations from the zoning requirements (i.e., changing the setback requirements for fencing). The entire series of events often takes many months to complete. The likelihood of success varies based on the facts and circumstances of each case. Invest Web Homepage |