Zoning Variances, Appeals, and Exceptions

A variance is permission from the local zoning board to deviate from the zoning code's requirements. Two types exist: use variances (permission to use property for a purpose not permitted by current zoning) and area (dimensional) variances (permission to deviate from setback, height, lot coverage, or other dimensional requirements). Use variances are generally harder to obtain than area variances because they represent a more fundamental departure from the zoning plan.

To obtain a variance, the applicant typically must demonstrate: (1) unnecessary hardship (for use variances) or practical difficulty (for area variances), (2) the hardship is unique to the property and not self-created, (3) the variance will not alter the essential character of the neighborhood, (4) the variance represents the minimum deviation necessary, and (5) the variance will not be detrimental to the public welfare. The application is heard by the Board of Zoning Adjustment (BZA) or Board of Zoning Appeals, and the decision can be appealed to the courts.

Variance approval rates differ significantly by type. Use variances, which allow a property to be used for purposes not permitted under current zoning, have approval rates of approximately 25-40% nationally, reflecting the higher standard of proof (unnecessary hardship) required. Area variances, which permit deviations from dimensional requirements like setbacks or height limits, enjoy higher approval rates of 60-80% because the practical difficulty standard is easier to meet. The timeline from application to decision typically ranges from 3 to 12 months, depending on the jurisdiction's hearing schedule and the complexity of the request. Application fees range from $500 to $5,000, with larger jurisdictions and more complex requests at the higher end. For investors, the potential value impact is substantial: successful rezoning of a parcel from residential to commercial use can increase land value by 50-300% or more, depending on the market. However, this must be weighed against the risk of denial and the carrying costs during the approval process.

Special use permits (also called conditional use permits or special exceptions) authorize specific uses that the zoning code contemplates as potentially appropriate in a zone but that require individual review and conditions. For example, a residential zone might list "home daycare facility" as a special use — permitted with specific conditions such as maximum number of children, operating hours, parking requirements, and licensing.

The special use permit process involves submitting an application to the planning department, public notice to surrounding property owners, a public hearing before the planning commission or zoning board, review against specific criteria established in the zoning code, and a decision with conditions. Unlike variances, special use permits do not require proof of hardship — the use is already contemplated by the zoning code, and the review focuses on whether conditions can adequately address potential impacts on the surrounding area.

Rezoning is a legislative act that changes the zoning classification of a parcel or area. Unlike variances and special use permits (which are quasi-judicial decisions by zoning boards), rezoning decisions are made by the legislative body (city council, county commission, or board of supervisors). The rezoning process typically involves application, planning staff review, planning commission recommendation, public hearing, and legislative vote.

Rezoning applications must generally be consistent with the jurisdiction's comprehensive plan (or demonstrate why a plan amendment is warranted). Spot rezoning — changing the zoning of a single parcel in a way that is inconsistent with the surrounding area — is legally vulnerable to challenge. Successful rezoning often requires demonstrating that conditions have changed since the original zoning was adopted, that the proposed rezoning is consistent with the comprehensive plan, and that the change will not adversely affect surrounding properties.