Zoning laws and regulations are used in municipalities and local governments and agencies. These laws control the types of structures and buildings that can be built on various types of property in a particular geographic area.
In other words, zoning codes regulate the size, location, and use of structures within specific defined areas. In many cases, the goal of zoning laws is to create a sense of uniformity in a neighborhood or business district.
A request may be made to the local zoning authority to allow for a variance, or an exception, to the regular zoning rules. Variance requests are reviewed on a case-by-case basis by the local zoning board or agency.
If the variance is approved, it does not constitute a change to the zoning rules and regulations but, instead, is an approved exception to the applicable zoning laws. If an individual wants to apply for a variance, a zoning variance attorney can assist throughout the process.
Applying for a Zoning Variance
Because zoning laws may vary by state, and even by municipalities, the procedures for obtaining a variance may also differ by jurisdiction. In addition, in gated communities and homeowner’s associations, there may also be additional ordinances that have to be considered.
In order to obtain a variance, an individual may be required to:
- Obtain permission from the local governing board;
- Hold a public hearing;
- Make an appearance before the local planning commission; or
- Obtain permission from neighbors.
In general, an applicant is required to show a need to deviate from the zoning code as well as show that their variance will not adversely affect the property values of their neighbors.
What Are Some Situations Where You Would Request a Variance?
Examples where variances may apply include:
- Building a gazebo in a resident’s back yard;
- Adding a second story to a building in a one-story zone; or
- Requesting a reduction in the setback requirements in order to fit a building on an odd-shaped lot.
What Are Some Examples of Zoning Variances?
In many cases, an exception to zoning laws will be granted when a zoning ordinance creates a unique hardship for a property owner. In these cases, the agency that oversees zoning laws can grant the owner a zoning variance.
One example of a zoning variance may occur because of a unique hardship for a property owner. Suppose, for example, a property owner has a small, oddly shaped lot that is smaller than many others in the neighborhood.
Suppose the zoning law for building a shed in this neighborhood states that the shed has to be built at least 15 feet from the property boundary line. However, because of 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 potential site for building the shed.
Due to this unique lot configuration, the property owner would not be able to adhere to the zoning regulations. In this case, the property lower may request and will most likely be granted a zoning variance in order to build their shed.
The zoning variance allows for relaxation of zoning regulation that pertains to dimensional restrictions if the property owner can demonstrate that adherence is impractical or impossible.
Whether or not the zoning variance will be granted to the property owner will depend on numerous factors, including the property itself and the purpose of the ordinance.
What Is the Difference Between an Area Variance and a Use Variance?
Area variances are exceptions to zoning ordinances wherein a property may not comply with the standards that are set in applicable ordinances because of the unique shape, dimensions or location of the property. Typically, an area variance is more common than a use variance.
A use variance arises when a property owner uses their property in a manner that is not typical for the area or neighborhood. One example of a use variance would be if a small pizza restaurant is allowed to be opened and run in a neighborhood that is composed of family homes.
How Do I Prove a Case for a Variance?
If an individual wants to apply for a variance to change the permitted use of their land, there are certain things they may have to prove, including:
- The new use of the property preserves the appearance and ambience of neighboring property;
- The new use is applicable only to the individual’s unique piece of property and not to those surrounding it;
- The existing restrictions create a serious hardship on the property owner. In determining exactly what constitutes a hardship, courts will examine:
- the circumstances and general objectives of zoning in the neighborhood;
- the nature of the change;
- its effect on adjacent neighbors; and
- any practical difficulty in using the property.
What Is the Cost of Obtaining a Zoning Variance?
In order to obtain a zoning variance, there are various steps that a property owner must take. The particular requirements will depend on where an individual resides and the location of their property.
It is best for a property owner to discuss the fee requirements with the local municipality that regulates zoning in their area or to contact an experienced property attorney to discuss their situation.
Can a Neighbor Complain About or Stop a Zoning Variance?
There are many jurisdictions that require information about potential zoning variances to be posted or somehow otherwise advertised to the local community before final approval. In many cases, an informational sheet will be posted on the property that describes the particulars of the variance.
The reason for posting the information is to allow neighbors and other individuals in the community who may be affected by the variance to voice their concerns to the local municipality. If the neighbors voice valid concerns and complaints, an administrative hearing may be held to determine the impact of the variance on the neighbors.
Zoning Law Changes
In certain situations, an individual may want to apply to the relevant governing body to have zoning laws amended or to request to deviate from the zoning code. Examples of zoning law changes may include changing a certain area from residential to commercial or redefining zoning boundaries.
Similar to a variance, an applicant is required to show the need for the change and that the change will not adversely affect the neighborhood. When a property owner has the support of the community, it may be easier to obtain a zoning variance.
This is especially true if an individual has an influential business and the city does not want them to move the business to a neighboring city. Individuals that a property owner may contact for support include:
- City council members;
- Chamber of commerce;
- Trade associations;
- Merchants associations; or
- Contractors and lawyers.
How Can a Lawyer Help?
If you have an issue, question, or concern related to a zoning question or issue, it is important to consult with a real estate lawyer. Your lawyer can advise you of the zoning laws in your jurisdiction as well as your legal options to obtain a variance or change in zoning laws.
It is important to keep in mind that zoning laws may greatly affect the value of your property so it is important to review the possible ramifications before requesting a variance or change in zoning laws.
