Zoning Hearings and Appeals

When a person has found the perfect location for their business, they still need to determine whether the location is zoned properly for a business of the type the person plans for the location. If the local zoning authority does not allow a person to set up a business in the person’s preferred location, all hope is not lost. A person may be able to go through a zoning variance or rezoning process to change the outlook.

What Is a Variance?

An exception to any kind of zoning law is a variance. A change to a zoning law affects all of the properties in a zoned area. A variance may be granted to only one property on a case-by-case basis. A variance applies only to the request of one property owner to do something that is at variance with a zoning ordinance or regulation on their property only.

In addition to applying only to a specific characteristic of one property in a zone, a variance stays with the property to which it applies. If the homeowner obtains the variance and sells the property, the variance still applies. The next person to own the home should also benefit from the variance. The variance does not expire.

For example, a homeowner may want to install a fence of a different height than what is allowed by zoning ordinances. Or a homeowner may want to build a chicken coop in their backyard or a shed slightly larger than a zoning ordinance allows.

A variance may also affect where a residence is positioned on a piece of property. Property setbacks and distances of structures on a property from its boundaries are the kind of things that zoning laws address.

What Kind of Variance Do I Need?

The first thing a person needs to do is to determine what type of variance they need. The two basic types are an area variance and a use variance. An area variance would be required when an owner wants zoning regulations relaxed because of the lot’s configuration.

An example of an area variance would be an exception to the minimum setback requirement so that a different distance is allowed. Or, an area variance might be required to build a multi-family residential structure in an area zoned exclusively for single-family residences.

If a person wants to use a building in a manner that is going to violate zoning ordinances, a person would want to apply for a use variance. An example of a use variance would be a variance that allows a person to run a business from a residential dwelling in a residential neighborhood.

Or, in a particular city or county, a use variance would be referred to as a “zoning permit.” Zoning permits allow an owner to use a property for a purpose other than the one allowed by the property’s zoning. This will be permitted if the business use does not negatively affect the neighborhood.

Of course, a person would always want to get the zoning permit or variance they seek before they begin construction or otherwise engage in the activity for which the variance would be necessary.

How Do I Get a Variance or a Permit?

Zoning boards, or planning boards as they are called in some places, are agencies of municipal or county governments. Local governments, cities, and counties usually determine zoning ordinances and how variances can be sought. Sometimes, states set land use policies that local zoning boards enforce.

People would want to inform themselves of the local procedures for seeking variances to zoning ordinances in their city or county. But generally, the process would involve such steps as the following:

• Submit a Letter: An owner wants to submit a letter requesting a variance, explaining clearly what the owner wants to do with the variance sought and its reason. A person would refer to the specific zoning regulation or ordinance that applies in the situation and explain how the person proposes to vary from what it allows. A person can write it themselves or have an attorney prepare it;
• Complete an Application: A person should fill out an application. There may be a fee for submitting it to the zoning board. An application may require a person to prove why the variance they seek is necessary. A person may need to show the following:
  • Local zoning ordinances create an unnecessary hardship or barrier to a person’s development or use plans;
  • A hardship exists because the effect of its limitations is unique to the property of the person who seeks the variance;
  • The variance would not harm any public interest if allowed. Generally, all three of these conditions must be explained to the satisfaction of the planning board;
• Wait for Planning Board Action: The applicant for a variance must then wait for planning board action. If a variance application is granted, then the person requesting it should receive a permit to proceed with construction or other activity;
• Appeal: If a person’s variance application is denied, a process is in place for appealing the decision. In some cities or counties, an appeal may involve a public hearing on the zoning issue presented by the request. Sometimes, the local zoning or planning board may tell nearby property owners about the variance application and allow them to appear at a hearing to offer input on the issue. The appeals authority may consider the input for or against in making a decision.

Can I Appeal a Zoning Board Decision?

Getting a negative decision on a person’s zoning appeal is not the end of the road. A person is allowed to appeal the planning board’s decision. If a person decides to appeal, they must get support from the local community. And the person wants to address the concerns of the planning board or commission and persuade the members that granting the permit or variance is the right decision.

What If My Appeal Is Denied?

Sometimes, even upon appeal, a person’s application can be denied. It is more likely than not that an appeal will be denied. Appeals are rarely successful. However, a planning board appeal is not the end of the road.

A person may appeal a final planning board decision. This is done by filing a lawsuit in civil court against the zoning commission or planning board that decided the appeal. The lawsuit would, of course, seek to get the area in question rezoned or to obtain a variance. Of course, a civil lawsuit is likely to be costly and lengthy. A person would take this path only if the variance is really important. In addition, a person would want to weigh the cost against the likelihood of success before taking this route.

Do I Need a Lawyer for My Zoning Issue?

Zoning ordinances can be technical, and seeking a variance or rezoning may become complicated. A person should consult an experienced real estate lawyer.

Your lawyer should be familiar with the exact procedures for zoning board variance requests, as well as other hearings and appeals in the city or county where you live. They would also be familiar with the zoning regulations and know how to make your best case for a variance or rezoning to the board or commission that handles zoning issues in your location.