Topic 19.5: Appeals and Exceptions

Learning Objective

After successfully completing this topic, you will be able to explain the purpose of a variance, special exception and a nonconforming use.

Zoning Board of Adjustment 

A Zoning Board of Adjustment handles appeals and requests for relief from the literal enforcement of zoning laws. The decisions of the board are final, subject only to appeal to the court system.

Variance

A variance is a relaxation of the strict terms of the zoning code or ordinance because of practical difficulties or hardships. To be considered, the request should
• not be contrary to the public interest,
• show that the applicant did not create the hardship or practical difficulty,
• not substantially affect the health, safety, or welfare of others whose property would be affected by allowance of the variance,
• use the same criteria as used in previous cases,
• not violate the Comprehensive Plan, and
• be applicable to the affected land in perpetuity, regardless of ownership.

For example, if the state uses it eminent domain powers to take land from a business for a highway right-of-way, the taking may reduce the number of parking spaces below the zoning requirement for that type of business. If the business owner applies for a variance showing the hardship and that he didn’t cause it, the variance will likely be granted.

Special Exception   

A special exception is usually initiated by government which would allow a certain use in one area that is not specifically zoned for the area. A public hearing is held before the exception is granted.

Legally nonconforming use

This old store in a residential area is likely a non-conforming use.

A non-conforming use often occurs when zoning in a neighborhood is changed without the owner desiring the change. The use may be continued for a reasonable time, and restricts renovation or enlargement. It is often referred to as “grandfathering.”

If the building is destroyed or damaged more than 50%, the property will not be permitted to continue its present use but must conform to the area zoning.

Planned Unit Development (PUD)

A planned unit development is a special land use that allows a mix of land uses along with a high density of residential units. Assume a developer has 50 acres where the zoning laws allow two dwelling units per acre. The developer can build
• one home each on half-acre lots, or
• all 100 homes in a cluster, keeping lots of green space for parks and passive recreation.

Mixed land Use

Zoning laws often permit mixed land uses within a single development. Many planned communities use mixed land uses to have clusters of homes, townhouses, and condominiums surrounding a town center with stores and entertainment.