How Do I Obtain a Zoning Variance?

When building or otherwise developing a piece of property, certain local requirements and restrictions, known as zoning restrictions may impede the project. (Zoning restrictions are public oriented, whereas an easement or equitable servitude serves the interests of certain private parties). For instance, a community might require a set distance between structures or a public street (i.e. a “set-back”). When a property builder, developer or owner wants an exemption from zoning restrictions, they must apply for a zoning variance.

The Zoning Board

Getting a zoning variance starts with the local zoning board. Typically, zoning boards focus of the permitted uses of a structure (such the allowable area, height, location) and the characteristics of the immediate area. In addition to addressing new construction, zoning boards are also called upon to consider issues of non-conforming use, wherein a building’s use/condition existed before a particular restriction was enacted. Although a non-conforming use must be permitted long enough for the owner to recoup a significant percentage of their investment, a zoning board can prevent any expansion or improvements to a non-conforming use.

To decide a variance application, the zoning board will hold a hearing. Keep in mind, the hearing may be public, and although the zoning board must give the petitioner a fair chance to present their case (which can include submitted documents and witness testimony), there are no formal rules of evidence as seen in a courtroom trial. Furthermore, some zoning boards allow other interested parties to attend and even testify against the proposed variance. Thus, the key to successfully getting a zoning variance is preparation. While knowledge of the relevant zoning ordinances is helpful, the petitioner should be prepared to explain any public or consumer benefits of a granted variance as well as addressing any possible concerns from the board and other parties.

The Zoning Appeals Board

Even with an organized presentation, the local zoning board may decline to give an applicant a variance. Most jurisdictions allow an unsuccessful petitioner to bring the matter before a Zoning Appeals Board.  If a petitioner is unsuccessful at the Zoning Appeal Board, they can consider filing a possible legal action.

An Experienced Lawyer Can Make a Difference

Someone desiring to get a zoning variance can often advocate successfully for themselves. But every situation is different, and thus, there is always a possibility that a zoning board will deny a variance. Although developers will often apply for variances before construction is started, the need for a variance can sometimes crop up during construction/renovation. By acquiring the services of professional legal counsel experienced in zoning board advocacy, a developer stands a better chance of getting the necessary approval.