Zoning and Land Use Ordinances
Many people have heard of the real estate term “zoning” but don’t really understand it. Simply speaking, zoning provides municipalities with a tool to control the types of land uses permitted in different regions. Common types of zones include residential, commercial, industrial, and agricultural districts, often categorized by different classes within each type of zone. Zoning not only provides a municipality with the means to control land development, but also helps to preserve property values and the safety of residents. Without zoning, a busy department store and its associated traffic could open within a residential neighborhood. Or an adult bookstore or night club could establish itself next to a school or a playground.
In addition to instituting land use restrictions, zoning also establishes limitations on how close buildings can be to each other and to property lines, the types of buffers that must be placed between uses, the number of parking spaces required for different types of uses, and more. Given all of these limitations, it is no surprise that property owners sometimes find the need to request permission to use their property in a way that does not comply with applicable regulations.
Zoning relief comes in three main forms: variance relief, special exception relief, and conditional use relief. A variance is a request to vary from either the use or dimensional requirements set forth in the zoning ordinance. A variance request is heard by the municipality’s zoning hearing board. In order to establish entitlement to a variance, an applicant must establish that it meets five criteria:
- A hardship exists.
- The property cannot be developed in conformity with the ordinance.
- The issue was not self-created.
- Granting the variance will not alter the character of the neighborhood.
- The requested variance is the minimum modification of the regulation in issue.
Variance relief is needed when a property owner wants to do something such as construct a deck closer to the property line than allowed (dimensional variance) or utilize his or her property for a use that is not permitted by the ordinance (use variance). The zoning hearing board may attach reasonable conditions to variance relief to further the intent of the ordinance.
Special exceptions and conditional uses, alternatively, are permitted uses that must meet specified criteria, as set forth in the ordinance. The difference between the two is the body that hears the request – requests for special exceptions are heard by the zoning hearing board and requests for conditional uses are heard by the municipality’s governing body, such as the board of commissioners/supervisors or city/borough council, etc. Like variances, reasonable conditions may be attached to special exception and conditional use relief.
It is always a good idea to check zoning regulations prior to applying for a permit to determine if zoning relief is needed to move forward. Failure to confirm this in advance may lead to denial of the permit and, potentially, additional fees to bring the property into conformance with the ordinance.
Attorney Sarah Murray is an experienced real estate attorney, providing residential and commercial real estate owners with counsel on purchasing, selling, and leasing property as well as zoning and land use matters.