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Variances and Conditional Use Permits

Variances and Conditional Use Permits

Both variances and conditional use permits are authorizations granted by the local zoning board that allow the land owner to depart from the literal provisions of the zoning ordinance, but the nature and degree of the departure are nevertheless closely regulated by the zoning board. A conditional use permit is different from a variance because, with a permit, the owner is allowed to put his property to use in a way that the ordinance expressly permits.

What is the Definition of a Variance?

A variance is an administrative, discretionary, limited waiver or modification of a zoning requirement. It is applied in situations where the strict application of the requirement would result in a practical difficulty or unnecessary hardship for the landowner. It can be granted to alleviate unnecessary hardship on the land owner caused by unique physical circumstances that preclude development of the property in strict accordance with the zoning code. A variance can affect or change minimum set-back requirements, building height and floor area limits, as well as similar dimensional issues. However, a variance cannot be used to alter the essential character of the zoning district in which the land is located. A variance allows the owner to use property in a way that is otherwise forbidden by an ordinance.

Types of Variances

• An area variance: An area variance is an exception to the district’s applicable regulations to allow the landowner to enjoy the same use of similarly situated owners who do not suffer the unusual physical characteristics of the subject land. It is usually not controversial because it’s generally granted due to some odd configuration of the lot or some peculiar natural condition that prevents normal construction in compliance with zoning restrictions. For example, if the odd shape of a lot prevents a house from being setback the minimum number of feet from the street, the municipality will usually relax the requirement.

• A use variance: This permits a landowner to enjoy a land use that is otherwise prohibited in the existing district because, use variances are more rare. Use variances are more controversial because they attempt a change in the permitted use. For example, if a lot is zoned single family residential, a person who wishes to build a multi-family dwelling must obtain a variance. Residents of an area will generally object to applications for variances that seek to change the character of their neighborhood. Although the municipality may heed these objections, it will likely grant the variance if it believes unnecessary hardship would result without the variance. However, the owner seeking a variance for a multifamily dwelling bought the property with notice of the current zoning restrictions; the variance will probably be denied. Applicants for a variance cannot argue hardship based on actions they commit that result in self-induced hardship. If many use variances are sought in a particular area on the basis of unique or peculiar circumstances, it may be a sign that the entire neighborhood needs to be rezoned rather than forcing property owners to seek variances in a piecemeal fashion. Properly used, variances provide a remedy for hardships affecting a single lot or a relatively small area.
Not all jurisdictions permit both (jurisdictions that don’t allow for use variances generally believe the proper remedy for such situations is a conditional use permit).

Purpose of Variances

• Jurisdictions would prefer as an equitable matter that a landowner enjoy the same privileges and burdens of similarly situated owners, provided the applicant didn’t cause the irregularity.
• There is some risk that absent a variance option, where a strict application of the regulations would unreasonably deprive a landowner of all economically reasonable use or value of their property, it may be considered a regulatory taking. Better to allow small deviations where no substantial harm is caused than to risk having to compensate a landowner for a regulatory taking.
Examples of Variances
Likely the most common area variance requests relate to setbacks (the distance between a building and a street or other protected feature, e.g., river). For example, a variance reducing the setback from a roadway might be appropriate where a
I. residential parcel is shaped oddly, and
II. because of this physical irregularity the applicant could not build a home of similar size to its neighboring, regularly-shaped, residential properties, if
III. The full setbacks were required.

Requirements for a Variance

As with all zoning requests, a variance application must comply with the zoning ordinance (procedurally and substantively) and comprehensive
The applicant must establish that its property has an unusual physical characteristic the applicant didn’t cause, and if the subject regulation were strictly imposed, it would result in a significant and unnecessary hardship to the owner’s use of its property. Because the variance allows an owner to operate under less stringent regulations, a city will want to ensure the variance isn’t simply a favorable treatment of the applicant.

Common Issues with Variances

Sometimes people protesting the issuance of a variance will argue that the owner purchased the property knowing its unusual physical limitation would require a variance. However, this alone will not prohibit the issuance of a variance. If a city grants a variance that appears to be essentially a favor to the applicant, or the applicant failed to show the hardship created, some may argue it is an unlawful spot-zoning.

Duration of a Variance

Variances must be exercised within one year from the date they are granted. The local zoning board may grant an extension for up to six months, as long as the extension is filed before the expiration of the one-year period.
A property owner can appeal if a variance request is denied or challenged. An appeal involves a careful review of the materials filed in support of, and opposed to, the variance, as well as the relevant zoning ordinance. A careful analysis of the board’s findings and legal conclusions can help prepare a powerful appeal.

Definition of Conditional Use Permit

On the other hand, a conditional use permit is granted to allow a use that is not permitted as a matter of course, but which can be approved if the land owner is able to meet the conditions imposed by the zoning board. The zoning ordinance defines conditional uses that are allowable in each zoning district and the conditions that may be imposed. These uses require conditions because in their absence the use could negatively impact nearby properties. Conditional use permits are given at the discretion of the city. Conditional use permits may only be granted for uses that are specifically listed in a municipalities zoning ordinance. If a suggested use in not designated as a conditional use in the zoning district, the permit will not be granted. In order to allow such a permit the zoning ordinance would have to be amended to allow for that specific conditional use.

Purpose of Conditional Use Permit

• A conditional use permit is a zoning exception which allows the property owner use of his land in a way not otherwise permitted within the particular zoning district. Imposing conditions that minimize such impacts allows the city to enjoy the needed use while also protecting the uses of nearby land.
• A conditional use permit is designed to allow flexibility within the zoning laws. A zoning ordinance cannot account for every situation, and exceptions such as the conditional use permit gives the zoning authority discretion to allow uses otherwise prohibited in the specific district for the benefit of the neighborhood.
• A conditional use permit is commonly granted to add commercial, education, or religious services to residential zones. Churches, schools, and small or home-based businesses in residential neighborhoods are all products of the conditional use permit which allows an exception to the zoning law.

Examples of Conditional Use Permits

• A common conditional use permit allows for the operation of a home-based business within a residential district. Conditions designed to limit negative impacts of this business on the district could include such things as requiring traffic related to the business to park in certain areas (e.g., the home’s driveway) and limiting signage for the business.
• Another common conditional use is a church within a residential district, again with conditions to minimize the potentially negative impacts of the church (e.g., parking and additional traffic control improvements). These are businesses and operations that are in high demand with the public, but may have safety repercussions, including increased heavy traffic congestion, increased population density, heightened noise levels, and other considerations that affect the public health, safety, and general welfare. These inherent dangers in the use of the land or problems that arise from the proposed location are what the governing body of the municipality will take into consideration when determining whether or not to grant a conditional use permit.
• There are inevitably going to be times when a building, for example a school, desires to be in a specific locality. Such a school may be incompatible with that specific zoning district. In a situation like this, the governing body of the municipality will have the opportunity to review the situation and consider the potential hazards that having a school in that particular area may bring. Upon review, the governing body may allow the building as long as it complies with the standards of the particular zoning district it desires to be located in, as well as any other specific conditions that apply to that particular conditional use.

Requirements for Approval of a Conditional Use Permit

The applicant might begin the process of requesting the permit by a call or letter (drafted by an attorney) to the local zoning authority in charge of granting the conditional use. The local zoning official explains the process, including required forms, notices to other property owners, and fees. He also can tell the land owner what kind of resistance the conditional use might stir up, and what to do to prepare for problems. This information will be helpful as the applicant files his petition before the zoning body. At the hearing, usually the proponent orally presents his request and answers questions about his conditional use application before the official makes a decision. The property owner applicant must be prepared, flexible, and available throughout the process. Although there are many factors in granting a conditional use permit, the zoning authority will usually determine whether or not a proposed conditional use will materially alter the neighborhood, and if the change has a positive impact. Even if the application for a conditional use is rejected, the property owner may still have an opportunity to appeal the decision. A local attorney familiar with conditional use permits and zoning laws can help with the application and possible appeal process.

Common Issues with Conditional Use Permits

An applicant may argue the conditions imposed are too restrictive and unduly burden its use of his property. Alternatively, those opposing the grant of a conditional use permit may argue the regulations are insufficient to protect against the use’s negative impacts.
Additionally, if the conditional use permit is not in compliance with the ordinance, as with a questionable variance, it may be considered an unlawful spot-zoning. Most times there are general standards in the zoning ordinance that apply to conditional uses. Some ordinances stipulate that conditional use permits must be in line with the comprehensive land use plan of the municipality, be compatible with nearby properties, or that they must be served by adequate roads and public utilities. Besides these general standards, there may also be specific standards for specific conditional uses, including off-street parking and loading areas, landscaping plans, and hours of business operation.

Duration of a Conditional Use Permit

Once a conditional use permit is granted, it will last so long as the conditions that were agreed upon continue to be followed. Although the permit will last until a condition is not met, the municipality retains the right to change or amend the status of the conditional use permit.

A conditional use permit must be consistent with the existing adopted General Plan, including local area and community plans, which reflect the County’s policy regarding land use, In the event that one does not agree with the required setbacks for the zoning district they are building in, they do have the option to apply for a variance. If the proposed use of the structure is only permitted as a conditional use, the applicant must apply for a Conditional Use Permit and have a public hearing before the Board of Adjustment before erecting the new building or structure.

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Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506