What is Zoning Variance?



zoning variance

You need to start by understanding a zoning ordinance. Zoning ordinances define how property gets used in specific areas. When they work properly, they perform functions like keeping residential areas free from factories. And they define what can be used for agricultural, commercial, and other uses.

A city council can define use. The ordinance is the rule–the zoning variance is an exception. They are granted on a case-by-case basis.



What Is a Zoning Variance?

A zoning variance is what you’ll need when you intend to change the use of the property. You might want to build something or alter the building. Maybe you want to build something on vacant property. In many cases, you’re looking to change current zoning requirements.

 

How Does Variance to Zoning Ordinance Work?

Property owners often ask for a variance on existing zoning conditions. They have a plan to use their land in a manner that deviates from existing zoning laws. Remember the rules change between municipalities.

Generally, this is how a real estate variance works.

  1. An application for a variance is submitted. These go to a Planning Department.
  2. The application is advertised. This is in a newspaper, through a sign on the land in question, and on a website.
  3. A public hearing gets held to consider the requested variance. The applicant gets to talk to the Planning Commission first. That commission then votes on the request for a variance.
  4. The Board of Commissioners gets the final say on any variance application. This decision is final. If a zoning variance request gets denied, you can submit a new one six months later.

Types of Zoning Variances

Basically, there are two different types of zoning classification types. Property owners can apply for either one. The zoning board of appeals sets the rules for either type.



Use Variances

An area variance allows land to be used for purposes otherwise under zoning restrictions. Applicants could be looking at obtaining a zoning change for commercial use in a residential area.

They might want to change existing ordinances to allow an existing property to allow multiple dwellings. The requested zoning changes might ask for industrial use in a commercial area.

These required changes can be contrary to how the surrounding neighborhood gets used. There is a heavy burden of proof for a property owner to prove unnecessary hardship.

Area Variances

An area variance can include putting a fence on the property line or building an extension to a house. These variances allow for use of the land in a way that’s otherwise restricted based on physical requirements or dimensions.



An area variance usually needs to show it won’t negatively impact the surrounding neighborhood. An area variance needs to make sure there’s minimal impact on the environment. That includes factors like land drainage on the property. Traffic congestion and noise are also included before a final determination is made.

What Is an Example of a Zoning Variance?

A zoning variance is important for several reasons. They don’t change the zoning of the real estate. The landowner gets to use private property and maybe build structures in a way that otherwise wouldn’t be permitted. They get legal permission to use the land under a waiver of regular zoning ordinances.

Here are some examples affecting a residential district.

Applying to put up a building higher than one that’s usually permitted can affect real estate. An applicant might also want to put up a fence in their neighborhood. Another example of a use variance is changing a single-family building into a multi-family one.



Why Zoning Variance Matters in Business

Zoning laws matter for brick-and-mortar businesses, and others. For example, each city might only allow zoning permits for retail stores in certain areas.

Here are five ways variances might affect your bottom line.

  1. Some Businesses Can Be Banned: The property might be zoned for commercial or residential use. Obtaining a zoning variance might not be possible.
  2. Is There Enough Parking?: If not look to “reasonable use” as a reason for a variance. These public facilities come into play.
  3. Can You Change The Property?: Can you upgrade to increase property values? Look for a nonconforming use from a previous bylaw.
  4. When Your Business is Home Based: Nearby property owners might come into play if you’re renting out rooms. You might need to poll them before you go to the Zoning Board.
  5. If You Want To Build On Vacant Land: As the owner, you’ll be involved in this time-consuming process. You might need a use variance.

How Can You Apply for Zoning Variances?

Zoning regulations are the bedrock rules that variances try to change. You need to deal with the local governing body that’s more than likely a Zoning Board.

Here are the steps you need to take for zoning variances. Be aware they can be different depending on where you are. Here’s the process for New York State.



1. Determine Zoning Designation

Get this info from a local city or municipality. Here’s a sample Zoning and Land Use Application.

2. Apply to Local Zoning Board

Check for meeting dates. Submissions need to be submitted beforehand. Plus, an owner needs to submit supporting documentation like plans and surveys.

3. A Hearing is Granted.

Any other property owners that are affected are notified. At that point, a hearing could be set. As an owner, you can focus on reasonable returns. That the property can’t be sold unless the variance is granted.

4. A Final Determination

You can be called before a governing body as a final step. It could be a City Council. If your use variance or other types get granted, it gets issued through the Zoning Board of Appeals. Or a similar political body.



A few tips:

  • Remember things like scenic areas are protected. They look after wetlands, etc.
  • “Essential character,” concerns upholding the atmosphere of a neighborhood.
  • Long story short, there are public welfare categories to be aware of, like “public use.” This spells out the unwavering right of the public to the land.

What Is the Difference Between a Variance for Zoning and Non-conforming Use?

A nonconforming use is a change to the zoning. However, the existing use is still allowed. On the other hand, a minimum variance is an exception to existing zoning laws.

Here’s something else to consider. Variances are like conditional use permits. Both are limited. However, obtaining a variance is about demonstrating hardship. An owner needs to prove not getting one will adversely affect their business.

Does a Property Owner Need a Zoning Variance to Start a Home-based Business?

Basically, that depends on your local jurisdiction and the type of business you want to run. Zoning laws shouldn’t apply if you’ve got no employees or walk-up trade.



There are signage laws in municipalities. Plus the type of merchandise you are producing and putting up for sale might be restricted. Think fertilizer and chemicals.

In the end, you can run a home-based business but must adhere to local and state laws. Remember to consider taxes and insurance requirements too. There’s not only the property to consider.

These can be complicated. Watch out for selling part of a lot and the rest is non-conforming. That’s a self-created hardship. You won’t get a variance.

Image: Depositphotos



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Rob Starr Rob Starr is a staff writer for Small Business Trends. Rob is a freelance journalist and content strategist/manager with three decades of experience in both print and online writing. He currently works in New York City as a copywriter and all across North America for a variety of editing and writing enterprises.

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