Zoning Changes, Variances, and More

The zoning on a parcel of land may be inconsistent with the use the land owner desires. In this situation, the owner may apply to the local jurisdiction for a change of zoning.

Each jurisdiction (city, county, state) has its own real estate rules and regulations. Filing a required application and paying a fee is standard. This is followed by some type of hearing at which the owner presents the request and the reasons for the requested change.

Surveys, drawings, photographs, and even models can be used to convey the proposed plan. Many owners hire engineers or lawyers to assist with the rezoning process.

If the owner is unsuccessful in obtaining the change, there may be a possibility to appeal the action, either:

• Within the administrative structure of the governmental body
• In a court of law

For example, suppose a landowner wants to develop a residential neighborhood for non-residential uses. The city’s local planning zoning map only accommodates homeowners in a different part of town. The landowner may submit a comprehensive plan as part of a rezoning request.

If the local building department denies the proposed changes in a public meeting, the owner may need to pursue the zoning amendments in court. If they are unsuccessful they may consider obtaining a zoning variance.

Variances

A variance is a request to deviate from current zoning requirements. If granted, it permits the owner to use the land in a manner not otherwise permitted by the zoning ordinance. It is not a change in the zoning law. Instead, it is a specific waiver of requirements of the zoning ordinance.

Variances are granted when the property owner can demonstrate that existing zoning regulations present a practical difficulty in using the property. For example, an owner of land in a commercially zoned area may show that an existing duplex would flourish under residential zoning rules.

To promote affordability, a city might grant a variance and even issue building permits to allow the owner to construct accessory dwelling units on their existing structure.

Each municipality has rules for variance requests. The land owner seeking the variance files a request or written application for a variance and pays a fee. The requests go first to a zoning board. The zoning board notifies nearby and adjacent property owners.

The zoning examiner may then hold a hearing to determine if the variance should be granted. The applicant might be required to appear before the governing body of the municipality, such as a city council, for the final determination.

Nonconforming Uses

A nonconforming use is a permitted use of property that would otherwise violate the current zoning ordinance. The use is permitted because the land owner was using the land or building for that use before the zoning ordinance became effective.

Nonconforming uses are often referred to as being "grandfathered in" to a zoning code. To qualify for nonconforming use, the property almost always needs continuous nonconforming use. If the use lapses for any time, the permission for the nonconforming use could vanish.

Conditional Use Permits

Similar to variances, conditional use permits allow an otherwise non-permitted use of the property that the zoning code does not include. Conditional use permits are often granted at a public hearing before a political body. This is usually with the conclusion that the new use of the property will be in the public interest.

Eminent Domain

Eminent domain is the power of the government to take private property for public use. Public use includes the traditional government activities of:

• Building roads, parks, and public facilities
• Protection for scenic areas, wetlands, and historic landmarks

If the government zones a piece of property such that the property owner can no longer use the parcel of land, eminent domain may be applicable.

For example, the local government planning commission may alter a zoning district for affordable housing units. An affected property owner who wants to build single-family homes may be able to sue for compensation because their land has been taken by the government.

Have Questions About Zoning Changes and Variances? Get Legal Help

Zoning changes and variances could open up a whole new world of possibilities for using your property. They could also have a disastrous impact. Before tackling these issues yourself, it would be wise to consult with a professional.

Contact a local land use and zoning attorney to discuss possible changes in zoning. They can give you legal advice about your options and the consequences of different zoning changes.