What is Zoning Variance?


zoning variance

Understanding a zoning variance begins with familiarizing oneself with zoning ordinances. These ordinances delineate how properties are utilized in specific areas.

When effectively implemented, they ensure functions such as maintaining residential zones free from industrial influences.

They also specify land uses for agricultural, commercial, and other purposes. While a city council sets the usage rules through ordinances, a zoning variance acts as an exception, awarded on an individual basis

What Is a Zoning Variance?

A zoning variance is a formal exception to the rules set by local zoning ordinances. Essentially, it’s a permit that allows property owners to use their land in a way that would otherwise be prohibited by standard zoning laws.

This could be because they want to make modifications to an existing building, construct something new on empty land, or even use the property for a purpose that isn’t allowed under its current zoning designation.

The core of a zoning variance is to provide flexibility where strict adherence to zoning requirements would result in undue hardship or prevent the reasonable use of one’s property.

zoning variance

How Does Variance to Zoning Ordinance Work?

When property owners envision a different use for their land or building that isn’t aligned with existing zoning ordinances, they must apply for a variance.

This request signifies their intent to deviate from the current zoning regulations. The process typically involves submitting a detailed application to a local zoning board or a similar governing body, explaining why the variance is necessary.

There are often two types of variances: area and use. An area variance might involve requests like reducing the required setback from the road, while a use variance would pertain to changing the property’s designated purpose, like turning a residential property into a commercial one.

Once the application is submitted, a public hearing is often scheduled, giving neighbors and other stakeholders an opportunity to express support or concerns.

The board then evaluates the request based on specific criteria, like whether the current zoning creates unnecessary hardship or if the variance would adversely affect the public interest.

It’s crucial to remember that zoning regulations, as well as the criteria for granting variances, can vary significantly between municipalities, counties, and states.

Thus, understanding the specific procedures and requirements of one’s local jurisdiction is essential when considering a variance.

zoning variance

Generally, this is how a real estate variance works.

  • An application for a variance is submitted. These go to a Planning Department.
  • The application is advertised. This is in a newspaper, through a sign on the land in question, and on a website.
  • 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.
  • 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.

Comparing Use Variances and Area Variances

To better understand the intricacies of zoning variances, it’s essential to differentiate between Use Variances and Area Variances. Here’s a brief comparison:

CriteriaUse VariancesArea Variances
DefinitionAllow land to be used for purposes otherwise restricted by zoning.Permit use of land in ways restricted based on physical requirements or dimensions.
ExamplesChange for commercial use in a residential area or multiple dwellings.Fence on the property line, building extensions, or other physical alterations.
ConcernsMay contradict how the neighborhood is typically used. Heavy proof of hardship.Must show minimal impact on the environment and neighborhood.
PurposeAllows fundamental changes to land use beyond existing zoning types.Allows changes to land use within the constraints of physical or dimensional limitations.
ImpactCan be significant, often changing the essence of the land's use.Generally limited, focusing on specific changes without altering the broader use of the property.

zoning variance

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 want to put up a fence in their neighborhood.
  • 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.

  • Some Businesses Can Be Banned: The property might be zoned for commercial or residential use. Obtaining a zoning variance might not be possible.
  • Is There Enough Parking?: If not look to “reasonable use” as a reason for a variance. These public facilities come into play.
  • Can You Change The Property?: Can you upgrade to increase property values? Look for a nonconforming use from a previous bylaw.
  • 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.
  • 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.

zoning variance

Navigating the Zoning Variance Application Process for Small Businesses

Applying for a zoning variance can be a critical step for small businesses looking to expand or start up in an area where their desired use of property doesn’t conform to existing zoning regulations. Here’s a step-by-step guide to help small business owners through the application process:

  • Understand Local Zoning Laws: Begin by familiarizing yourself with the local zoning ordinances that apply to your desired property. This information is usually available on your city or municipality’s website or at the local planning office.
  • Determine the Type of Variance Needed: Identify whether you need a use variance (to use the property in a way that’s not currently allowed) or an area variance (for physical modifications to the property).
  • Prepare Your Application: Gather all necessary documents required for the application. This typically includes:
    • A detailed description of your proposed project.
    • Site plans and architectural drawings if you’re planning physical changes.
    • An explanation of why the variance is necessary and how it adheres to the criteria set by the zoning board.
  • Engage with the Community: Before submitting your application, it might be beneficial to discuss your plans with neighboring property owners and the local community to gauge their support or address any concerns.
  • Submit Your Application: Ensure that your application is complete and submit it to the local zoning board or equivalent body. Pay any applicable fees associated with the application process.
  • A Hearing is Granted: Once your application is in order, affected neighboring property owners are informed of your request. This is to ensure transparency and give them an opportunity to voice concerns or support. Subsequently, a formal hearing date is set.
  • Attend the Public Hearing: A public hearing will typically be scheduled, where you’ll have the opportunity to present your case. Being well-prepared to answer questions and provide additional information is crucial. As you present your case during the hearing, emphasize the economic aspects. Highlight points like the property’s inability to yield reasonable returns without the requested variance or potential challenges in selling the property without the desired changes.

    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.
  • A Final Determination: The climax of this journey might require you to face a more significant governing body. In many cases, this could be a City Council or another authoritative municipal entity. They will review the recommendations from the Zoning Board of Appeals or a comparable administrative body and make the ultimate decision.

    If your request for a use variance or similar adjustment gets the green light, the formal approval comes through the Zoning Board of Appeals or the relevant governing board. Always remember to stay updated on local regulations, as nuances can change based on jurisdiction.

  • Follow Up: After the hearing, the zoning board will make a decision. If your application is denied, inquire about the reasons and explore the possibility of an appeal or modifying your proposal to meet the board’s requirements.

Strategies for Addressing Community Concerns and Opposition

Gaining community support or effectively addressing opposition can be key to securing a zoning variance for your small business. Here are some strategies to consider:

  • Host Information Sessions: Before the public hearing, consider hosting information sessions for community members to learn about your project, ask questions, and express any concerns. This can help mitigate opposition by clarifying misunderstandings and demonstrating your commitment to being a good neighbor.
  • Engage Directly with Opponents: If specific individuals or groups are opposed to your variance request, try to engage with them directly to understand their concerns. You may find common ground or be able to adjust your plans to alleviate their worries.
  • Leverage Support: Identify and engage with local businesses, community leaders, and residents who support your project. Their voices during the public hearing can help counterbalance any opposition.
  • Emphasize Benefits: Clearly articulate the benefits of your project to the community, such as job creation, service provision, or improvements to the local area. Highlighting how the variance could positively impact the community can sway opinion in your favor.
  • Offer Compromises: Be open to modifying your plans to address community concerns. Compromises that respect both your business needs and the community’s interests can lead to a win-win outcome.
  • Professional Representation: Consider hiring a lawyer or consultant who specializes in zoning and land use to represent your case. Their expertise can be invaluable in navigating the process and addressing technical concerns raised by the community or the zoning board.

Following these steps and strategies can enhance your chances of obtaining a zoning variance, enabling your small business to thrive.

zoning variance meeting

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 and you likely won’t get a variance.

Here’s a great example of how variances work in the city of Edmonton, CA.

 

Image: Depositphotos

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Rob Starr Rob Starr is a staff writer for Small Business Trends and a graduate of Ryerson University in Toronto with a Bachelor of Journalism degree. His print credentials include employment with various Toronto area newspapers and three works of fiction: The Apple Lady (2004), Creekwater (2006) and Sophistry By Degrees (2008) published by Stonegarden Press In California.

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