When navigating local zoning laws and land use regulations, property owners and developers often encounter two specific legal terms: ‘variance’ and ‘nonconforming use.’ Both concepts relate to exceptions from standard zoning rules, but they arise in very different contexts and carry distinct legal implications. Understanding the difference between variance and nonconforming use is crucial for real estate professionals, urban planners, legal advisors, and property owners aiming to ensure compliance while maximizing the utility of their land or building. This topic explores the key differences between variance and nonconforming use, the processes involved, and practical examples of how each operates within the framework of land use law.
Understanding Zoning Regulations
Zoning regulations are municipal laws that govern how properties in specific geographic zones can be used. These laws regulate various factors such as building height, density, land usage, setbacks, and lot sizes. They aim to promote orderly development and to separate incompatible land uses such as residential and industrial.
However, exceptions to these zoning laws may be necessary in certain situations. Two legal mechanisms that provide these exceptions are variances and nonconforming uses. While both may allow deviation from zoning ordinances, their legal basis and procedural applications differ significantly.
What is a Variance?
A variance is a specific exemption granted by a local zoning board or municipal authority that allows a property owner to deviate from certain zoning requirements under specific circumstances. Variances are typically requested when a property owner faces practical difficulties or unnecessary hardship in complying with zoning laws due to the unique characteristics of their property.
Types of Variances
- Use Variance: Allows the property to be used in a way that is not permitted in the zoning district. For example, using a residential property for a small business in a neighborhood zoned exclusively for residential use.
- Area Variance: Relates to dimensional or physical requirements, such as height restrictions, lot size, or setback requirements. This may apply if a building needs to be constructed closer to the property line than zoning rules allow.
Criteria for Granting a Variance
Most zoning boards consider specific criteria when reviewing a variance request:
- The hardship must be unique to the property and not shared by others in the district.
- The variance must not adversely affect the neighborhood or public welfare.
- The hardship must not be self-created.
- Granting the variance should be the minimum relief necessary.
Example of a Variance
Imagine a property with an irregular shape that makes it impossible to build a house within the normal setback requirements. The owner might apply for an area variance to reduce the setback on one side of the property, arguing that the unusual shape makes compliance impractical.
What is a Nonconforming Use?
A nonconforming use, sometimes called a ‘grandfathered use,’ occurs when a property’s use was lawful under previous zoning regulations but does not comply with current zoning laws. This situation often arises when zoning ordinances change, and the existing use no longer fits the new rules.
Characteristics of Nonconforming Use
- It must have been legal at the time it was established.
- It continues despite new regulations that prohibit such a use.
- It generally cannot be expanded or changed to a different nonconforming use without special permission.
Termination of Nonconforming Use
Nonconforming uses may be terminated under certain conditions:
- Abandonment: If the property is not used for the nonconforming purpose for a set period of time (often 6 months to 1 year).
- Destruction: If the property is destroyed (e.g., by fire) beyond a certain percentage, rebuilding may not be allowed under the current zoning.
- Change in Use: If the owner changes to a permitted use, the nonconforming status is usually lost permanently.
Example of Nonconforming Use
A small commercial store operating in a residential zone prior to the enactment of updated zoning laws may continue to operate as a nonconforming use. However, if the store closes for a long period, or is replaced by a different type of business, it may lose its protected status.
Key Differences Between Variance and Nonconforming Use
While both variances and nonconforming uses permit deviation from zoning laws, they arise from different circumstances and serve different purposes.
Origin
- Variance: Requested by the property owner after the zoning regulation is already in place.
- Nonconforming Use: Exists because the property use was legal before new zoning laws were adopted.
Approval Process
- Variance: Requires an application, public hearing, and approval by a zoning board.
- Nonconforming Use: Automatically exists; no application is required unless modifications are sought.
Flexibility
- Variance: Flexible but subject to conditions and can be revoked for noncompliance.
- Nonconforming Use: More rigid; expansion or significant change may not be allowed.
Duration
- Variance: Runs with the land and typically does not expire unless conditioned.
- Nonconforming Use: Can be lost through abandonment, destruction, or voluntary change.
Why This Distinction Matters
Understanding whether a deviation from zoning rules falls under a variance or nonconforming use is essential for legal compliance, planning, and property investment. Misclassifying a situation can lead to legal disputes, fines, or denial of building permits. Moreover, developers and property buyers must conduct due diligence to verify whether existing uses or modifications are legally supported by either a valid variance or grandfathered status.
The concepts of variance and nonconforming use are cornerstones of zoning law and land use regulation. Each provides a legal pathway to maintain or initiate a use of property that deviates from existing zoning ordinances, but they differ in origin, application, and limitations. A variance is a request for permission due to hardship, while a nonconforming use is a right retained from past zoning conditions. Property owners should consult with local zoning boards or legal professionals to determine the most appropriate course of action and to safeguard their property interests. Understanding the distinction not only ensures legal compliance but also protects property value and development potential.