Rezoning, Variance, or Conditional Use Permit: Which One Can Solve Your Zoning Problem?
You’re considering the purchase of a particular property, but know it doesn’t conform to the city’s zoning ordinance. As such, you’ve negotiated the purchase contract so that closing is conditional upon you first being able to bring the property, and your intended use of it, into compliance.
What type of application do you make? Rezone it to a district that expressly permits the existing use or the one you desire? Seek a conditional use permit (“CUP”) under the current zoning district where your use is a permitted conditional use? Or is a variance from the ordinance’s regulations the right decision?
In covering the topics below for rezoning, conditional use permits, and variances, this article will help you understand which avenue might make the most sense for you. In this article we’ll cover:
How these three options differ
What purpose each is intended to foster
Examples of the options
Common issues faced by parties making these requests
Which governmental entities review your application, which one makes the final decision, and what are the procedures for each proceeding, and
If the decision is appealed to the courts, how the court makes its decision
It should be noted there are no universal laws, set of terms, or processes for zoning. They vary on a state-to-state and city-to-city basis. So while this article will give you an understanding of some widely used concepts and their application, you’ll have to work with a land use lawyer to determine how (or even if) your city implements these ideas.
Let’s start with rezoning, but first, a quick caveat: although there are two types of rezoning actions, (1) an amendment to the zoning ordinance’s text that impacts all properties, or (2) an amendment to the ordinance’s map to change the use district of an individual parcel, because the first action is less common, this article will consider only the second.
That being said, let’s get to work.
Definition of Rezoning
Rezoning is the act of changing a property’s use district (e.g., commercial, residential, industrial, agricultural, and sub-districts within each) to a different district with regulations permitting the applicant’s desired use.
For explanations of other zoning terms, you can check out our article on common zoning terms.
Purpose of Rezoning
The purpose of zoning is to regulate land uses to serve the health, safety and general welfare of the public. To achieve this purpose, zoning laws address the impacts of land uses, including such things as:
Protecting all properties from potentially negative consequences of neighboring, incompatible uses
Protecting the value of properties by permitting them the most appropriate land uses, and minimizing potentially negative impact of nearby uses
Controlling the location and negative impacts of nuisance-like uses, and
Providing adequate public services (e.g., transportation, water and sewers)
Accordingly, a rezoning might be allowed where one of these objectives (or similar ones) is no longer being met by the existing use designation, and the proposed use would further one or more of these goals.
Examples of Rezoning
Rezoning may be appropriate in a number of different circumstances. For example, where a city wishes to replace an undesirable use with a more attractive use, it may initiate a rezoning to a district that doesn’t allow the undesirable use. This can occur, for instance, when a city replaces an intensive multi-family residential district to a less-intensive single-family district to reduce potential strains on public infrastructure, or other general welfare objectives.
Similarly, a property owner can seek a rezoning to change the use district to permit a new use that has become more appropriate due to the city’s development. For example, where undeveloped ground on the edge of the city limits had been limited to agricultural uses, and the city’s growth resulted in residential uses approaching the agricultural district, a retail commercial use may be appropriate to support the shopping needs of these neighborhoods. So long as the comprehensive plan included objectives for the city’s development that address the public need being filled in a rezoning application (here, supporting residents’ shopping needs), the rezoning may comply with the plan even if it didn’t specifically project the particular growth.
Requirements for Approval of a Rezoning
First and foremost, the rezoning application must comply with the procedures described in the municipality’s zoning ordinance, including things like (1) meeting with neighborhoods potentially impacted by the change, (2) meeting with city staff prior to application to discuss potential issues and ensure the application is in proper form, and (3) that any application fees are paid.
Secondly, the rezoning generally must comply with the comprehensive plan. As the plan is a guiding, and not binding document, the city may exercise some flexibility in finding compliance. The retail scenario above is a good example: the plan didn’t project that retail would be appropriate in the subject parcel, but it did note that retail to support residents was one of the plan’s objectives.
The city will then determine if the proposed use is either a permitted use or a conditional use within the proposed district.
Common Rezoning Issues
Next, let’s take a look at some common zoning issues. In this section we’ll talk about regulatory takings, spot-zoning, and “Not In My Backyard”, or NIMBY opposition.
As described in our practical guide to zoning, if a city-initiated rezoning, and its attendant regulations, effectively deprive a landowner of all economically reasonable use or value of their property, it can be considered a regulatory taking. A taking occurs when the government exercises its power of eminent domain to acquire ownership of private property for a public use or benefit. While a government has this right, if it does so, it must compensate the landowner for the loss of its land.
In the case of a regulatory taking, although the government hasn’t taken title to the property, because its regulations rendered the land essentially worthless, the regulation is viewed as a taking, and the landowner must be compensated.
As described in this article on zoning terms, spot-zoning occurs when a single parcel is zoned differently than surrounding uses for the sole benefit of the landowner. Such zoning is unlawful. Although property may lawfully be zoned differently than surrounding uses, pursuant to guiding planning documents (e.g., the comprehensive plan), policies and zoning ordinances, such varying uses are typically permitted only because they serve a public benefit or a useful purpose to the surrounding properties.
A simple test to determine if a rezoning is spot-zoning is to consider whether the rezoning complies with the comprehensive plan. If it does not, then it is spot-zoning. A fix for this scenario is to amend the plan and ordinance to allow for the proposed use before the rezoning occurs.
An acronym for “Not In My Backyard,” NIMBY is an organized opposition to a rezoning based on the assertion that the new use will negatively impact the objecting parties’ properties. Such protest can occur in all three of the zoning actions considered here, but for sake of brevity, we’ll consider it as applied to rezoning requests.
NIMBY participants are most often residential property owners, and object to uses they believe will negatively impact their homes, including uses like:
Landfills, quarries, and industrial or manufacturing uses
Halfway houses and homeless shelters
Adult uses, and
Large-scale commercial developments (e.g., office complex, shopping mall, sports complex)
In considering such protest, cities will try and balance what the public as a whole needs (e.g., residents generally need shopping centers and roadways) with the desires of neighboring residential property owners.
One way to balance these potentially incompatible needs is the imposition of conditions on the new use. For example, if residents oppose construction of a new sports complex on the grounds that it will create consistent and disruptive noise, the city could require the development to employ larger setbacks or construct noise-buffering structures.
Now that we’ve covered rezoning, let’s next move onto variances.
Definition of 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. Typically, the difficulty or hardship must be due to an unusual physical characteristic of the parcel.
Types of Variances
There are two types of variances: an area variance and a use variance. 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).
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.
A use variance permits a landowner to enjoy a land use that is otherwise prohibited in the existing district. Because use variances are more rare, we’ll just consider area variances.
Purpose of Variances
Firstly, 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.
Secondarily, 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 (1) residential parcel is shaped oddly, and (2) because of this physical irregularity the applicant could not build a home of similar size to its neighboring, regularly-shaped, residential properties, if (3) 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 plan (though, as noted above, not all jurisdictions require compliance with the plan, and not all jurisdictions require a plan).
The applicant must establish that its property (1) has an unusual physical characteristic the applicant didn’t cause, and (2) 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. In order to verify that this isn’t the case, cities will look to earlier, similar variance requests. If they were granted, this supports the validity of the current variance request.
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.
Conditional Use Permits (CUPs)
Finally, let’s take a closer look at conditional use permits and see how these differ from rezoning and variances.
Definition of Conditional Use Permit (CUP)
Conditional use permits (often simply called CUPs) are uses permitted on a permanent basis within a district so long as the governing body’s conditions are met. Permitted conditional use permits are expressly listed for each district in the zoning ordinance. 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.
Purpose of Conditional Use Permit
Similarly to the consideration of NIMBY protests, the city understands that some uses, while beneficial or necessary for the community, could cause certain negative impacts (e.g., increased traffic or noise). Imposing conditions that minimize such impacts allows the city to enjoy the needed use while also protecting the uses of nearby land.
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).
Requirements for Approval of a Conditional Use Permit
As with the above, a conditional use permit application must comply with the zoning ordinance and comprehensive plan. As relates to the ordinance, this primarily means the requested use is expressly permitted as conditional in the subject district. Where it does, where the applicant accepts the conditions imposed, and where all other ordinance requirements have been satisfied, the conditional use permit is granted as matter of right. If the owner ceases to comply with the conditions, it risks the revocation of the conditional use permit.
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.
Procedure for Approval & How Courts Examine Challenges to Zoning Decisions
Now that we’ve covered rezoning, variances, and conditional use permits, let’s next examine the process for getting approvals in place. In this section we’ll also take a closer look at what happens when a zoning decision is challenged in court.
Who Reviews Rezoning, Conditional Use Permit and Variance Applications
Generally an application for the three requests considered here start with the city’s zoning staff. They work with the applicant, explaining regulations under the ordinance, and modifying the application where necessary to make it compliant.
Though the process following staff’s review varies between jurisdictions, generally rezoning and conditional use permit applications are forwarded, along with staff’s recommendation, to the planning commission. The commission is an advisory board of residents who reviews applications with staff and counsel to determine if the request complies with the ordinance and, where required, the comprehensive plan. Following its review, the commission makes a recommendation to the city council, and the council gives the thumbs-up or thumbs-down. It should be noted, that in some jurisdictions the council may delegate its conditional use permit decision-making authority to the commission.
In the case of variance requests, the staff (following its review) forwards a recommendation to the board of zoning adjustment (“BZA”). In some jurisdictions the BZA will make the final approval or denial of a variance application, and in others the BZA will act like the planning commission, only making recommendations to the council. BZA decisions may, depending on the zoning ordinance, be subject to appeal directly to the courts or to the council.
Legislative vs. Administrative Review
Zoning decisions come in two different flavors: legislative and administrative (also referred to as quasi-judicial). Which flavor isn’t determined by which body makes the final decision (e.g., commission, council or BZA), but rather on the characteristics of the request itself. Because the procedural rules and protections are different as between legislative and administrative decisions, an applicant can expect different rules for different types of requests.
Legislative decisions apply to the community as a whole, and not only to an individual. In zoning the clearest example is the creation of, or a text amendment to, the zoning ordinance because it applies to all properties within the city. In contrast, administrative decisions impact only a single property or individual. For example, because a variance or CUP decision will only impact the individual property making the application, these decisions are generally considered administrative (however, some jurisdictions consider CUP decisions to be legislative).
There is disagreement among jurisdictions as to whether the rezoning a specific parcel is legislative or administrative. Some treat it as legislative, and others, pointing to the fact that it affects only a single parcel, treat it as administrative. Where legislative, these decisions (like all legislative decisions) may only be made by the governing body, e.g., the city council, board of alderman or similar body. Administrative decisions may be made (limited by state and local laws) by non-legislative bodies, e.g., the planning commission or BZA.
Legislative vs. Administrative Review Procedures
Because legislative decisions are by definition those with broad application to the community, they are based on the city’s discretionary powers. They are subject to Constitutional limitations, but otherwise aren’t required to have any specific rules or standards. Of course if the zoning ordinance requires certain procedures, they must be followed.
Administrative decisions, however, impact only the individual applicants, and thus provide some due process protections. These typically include the rights to:
Notice of a hearing
Present evidence and cross-examine witnesses
Legal representation, and
A written decision based on the evidence presented
Method and Standard of Reviews for Appeals to the Courts
If a council’s legislative decision is appealed to the courts, the court will generally look at any record of the council’s consideration, as well as making a “de novo” review. De novo is Latin for “anew” and means the court will consider evidence and arguments as if the council proceedings had never occurred. The court may even consider new evidence at trial that was not presented in the decision proceedings.
Based upon this review the court will determine if the proceedings violated Constitutional protections, either “facially” (meaning the ordinance on its face was unconstitutional) or “as applied” to the applicant aggrieved by the administrative decision. The burden of proof is placed upon the applicant, who will only prevail if it can establish “by clear and convincing evidence” that it suffered substantial detriment, and that the decision provided no benefit to the health, safety and welfare of the public.
Unlike the de novo review of a legislative decision, administrative appeals are based only on the record created at the proceeding. Following a review of the record a court will consider if the administrative body exceeded or abused its discretionary powers, or acted arbitrarily or capriciously regarding the applicant’s constitutional rights. If there is any evidence supporting the administrative decision, it will be upheld by the court.
So… you’re considering the purchase of property, know it doesn’t conform to the city’s zoning ordinance, but in your purchase contract you’ve negotiated a condition to closing your ability to bring the property, and your intended use of it, into compliance. Do you know now whether you should apply for a rezoning, conditional use permit, or variance? Hopefully this article gave you some idea, but in any case, because its only for informational purposes, and not to give legal advice, if you have any particular zoning issues, you should consult a licensed attorney!