Non-Use Variance Explained

A variance allows a property owner to use his or her land efficiently by bypassing established local zoning laws. Variances are normally issued under unusual circumstances, for instance when there’s a large stream on the property that is making it difficult to continue with construction without breaking local zoning laws. There are two types of variances: use variances and area or non-use variances. This article explores non-use variances in the context of zoning laws. 

Non-use variances are the more commonly requested variance. They provide exception when there are unique difficulties in complying with the physical requirements of local zoning ordinance. 

Process for Approval of a Non-Use Variance

The procedure for approval generally depends on the locality. But basically, the process begins by sending a request to a zoning enforcement officer, who then uses the local zoning laws to make a decision. The officer will be able to determine the requirements needed for the proposal and provide insight on what can or cannot be done on the site. 

The property owner can appeal to the zoning board of appeals if the request is denied. The board will assess the difficulties presented by the local regulations and whether it is okay to approve the proposed request. 

A non-use variance can only be issued if the property owner is able to prove that the laws unreasonably prevent him or her from legally using their own property. The board may seek input from your neighbors in the process. This can be a problem if the neighbors feel that the proposed allowance could someone jeopardize the value of their property. 

Creating a Record to Support the Variance

The property owner should create a record prior to requesting for a variance. This record should describe the special circumstances surrounding the property and the unnecessary inconvenience resulting from the zoning restrictions. For example, the property owner could show that the land has a certain unique quality (e.g. streams, rocks, etc.) making it difficult to construct a regular-sized home. The zoning official would use this documentation to determine whether to approve or reject the non-use variance. 

For approval to be granted, the property owner needs to prove that the variance is required to enjoy a reasonable return on the property. Additionally, the proposed changes should not infringe on the community’s rights or enjoyment of their own property. 

Zoning laws are designed to ensure that certain types of development do not interfere with the rest of the community. However, there are instances where it is possible to circumvent the restrictions without jeopardizing the neighborhood. If you need to talk to a real estate lawyer to learn what your options are, The Law Office of Ray Garcia, P.A. has you covered. Contact us today.

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