Obtaining a Zoning Variance

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 What is Zoning?

Zoning is how the governments of local municipalities attempt to create uniform neighborhoods and uniform land use in different areas of the municipality. The government does this by controlling and limiting how individuals and businesses may use their property. For instance, they will control the type of buildings and other structures that can be constructed in a particular geographic area. Often, the goal of zoning laws is to create a sense of uniformity in a neighborhood or business district.

In a municipality, zoning laws categorize and separate different land uses into distinct districts. Generally, a local government will create separate districts for the following purposes:

  • Residential use (houses, condominiums, apartment buildings, mobile home parks, etc.)
  • Business use (stores, office space, hospitals, churches, etc.)
  • Industrial use (manufacturing plants, etc.)

What is a Zoning Variance?

If a person owns property subject to a zoning ordinance that prevents them from using their land as they wish, they can circumvent it by obtaining a variance (an exception) from the local government.

A variance refers to a legal exemption granted by a local government or zoning board that allows a property owner to deviate from the requirements or restrictions of the existing zoning regulations. Essentially, a variance is permission to use one’s land in a way that would otherwise be prohibited or restricted by local laws.

Requests can be made to the local zoning authority to allow for a variance from the regular zoning rules. Variances are reviewed case-by-case by the local zoning agency or board. If a variance is approved, it is not a change in the zoning rules and regulations but rather an approved exception to the zoning law.

To obtain a variance, the landowner must establish that the enforcement of the ordinance will cause unnecessary hardship due to the unique features of the property, which make it difficult to use the property as it is currently zoned. The owner may also argue that the existing zoning regulations do not fairly or adequately apply to their property.

In addition, it must be shown that granting the variance will not adversely affect the neighboring properties or the effectiveness of the zoning ordinance.

What are Some Examples of Zoning Variances?

Exceptions to zoning laws can be granted when a zoning ordinance creates a unique hardship for a property owner. When this occurs, the agency that oversees the zoning laws may grant a zoning variance.

Zoning area variances sometimes allow for the relaxation of zoning regulations that pertain to dimensional restrictions if a property owner can show that adherence is impossible or impracticable. Here is an example of a hypothetical situation:

  • A property owner has an oddly shaped, smaller lot than most of the other ones in the neighborhood. The zoning law for building a shed in this neighborhood states that the shed must be built at least 15 feet from the property boundary line. However, due to the property owner’s oddly shaped lot and size, there is only a maximum of 10 feet of space from the property line to the spot where the owner wants to put up the shed. Because of the unique lot configuration, the property owner cannot adhere to the zoning regulation and thus can request and will most likely be granted a zoning variance for building their shed.

Another example of a zoning variance is shown in the following situation:

  • A homeowner wishes to add an extension to their home. There is a local zoning ordinance that restricts home additions to only the ground floor. This is because a two-story addition could block other homeowners’ views of the local lake. Second-story additions are not allowed. This particular home already has a second story, and there is no lake view from the property or any adjacent property. The homeowner wishes to add to the existing second story of their home and will apply for a zoning variance. Because of the unique circumstances, the zoning board, in this example, may grant the property owner’s variance request.

Here are a few other examples of situations where a variance request might be necessary:

  • Setback Requirements: Many local zoning regulations require that buildings be set back a certain distance from the property line; in some cases, a property may have physical characteristics, such as trees, that make it difficult or impossible to comply with these requirements. It may be necessary to seek a variance.
  • Use Restrictions: Zoning regulations often specify land use permitted in different community areas. However, in some cases, a property owner may want to use their property in a way that is not allowed under the existing regulations. For example, a property owner may want to run a small business out of their home in an area zoned for residential use only. A variance will have to be requested.
  • Historic Preservation: In some areas, there may be historic preservation regulations that restrict what changes can be made to historical buildings or properties. However, a property owner may want to make changes to their property that are not allowed under these regulations. A variance might be necessary to allow for such changes while preserving the property’s historic character.

What is the Difference Between an Area Variance and a Use Variance?

If a piece of property does not comply with the standards set in the ordinances due to the unique shape, dimensions, or location of the property, the owner may seek an “area” variance. Area variances are typically more common than use variances.

Use variances occur when a property owner wants to use their property in an atypical fashion to the neighborhood or area. An example of a use variance would occur if a small pizzeria restaurant was open and run in a residential neighborhood.

What is the Cost of Obtaining a Zoning Variance?

Most jurisdictions require fees in association with building permits and zoning variances. It is best to discuss the fee structure with the local municipality that regulates zoning in your area or to contact an experienced property attorney to discuss your situation.

Can a Neighbor Complain About or Stop a Zoning Variance?

Many jurisdictions require that information regarding potential zoning variances be posted or somehow advertised to the local community before final approval. The notion behind the posting is to allow neighbors and others in the community who may be affected by the variance to voice their concerns to the local government. If the concerns and complaints of the neighbors are valid, an administrative hearing may be held to determine the impact of the variance on the neighbors.

Should I Call an Attorney Regarding My Zoning Variance Questions?

The process of obtaining a variance can be complex and time-consuming, and it often requires the assistance of a real estate attorney with experience in zoning laws. Real estate attorneys work with property owners to assess the feasibility of their variance requests and develop and present compelling arguments supporting their requests to the local zoning board. If necessary, they may also represent clients in administrative proceedings or court hearings.

In addition to helping clients obtain variances, real estate attorneys may assist with other land use and zoning matters, such as rezoning requests, site plan approvals, and special use permits. They may also guide compliance with local zoning regulations and help clients avoid potential legal disputes or enforcement actions.

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