My Project Does Not Conform to the Zoning Code. What can I do?

11.22.2022

Author: Attorney Peter J. Curran

Most real estate is subject to a Zoning Ordinance which designates what can or cannot be done with that property.  Zoning is done by municipalities – Counties, Towns, Cities and Villages – often in furtherance of a Comprehensive Plan for that municipality.  While Zoning Ordinances vary from municipality to municipality, some common examples of zoning districts are Residential, Commercial, and Industrial.  These designations may have sub-categories.  The uses that are allowed are based on the zoning district of that property.

There are times when a planned project is not directly permitted by the zoning district of the property.  In these cases, there are two options for a landowner to pursue – a conditional use permit and a variance.

In addition to setting forth the uses which are expressly permitted, a zoning ordinance often also sets forth other “conditional uses” for which the landowner can apply for a permit.  As the name suggests, approval of this permit is “conditioned” upon certain standards being met.  A conditional use permit is limited to the conditional uses set forth in the zoning ordinance.

Alternatively, a variance allows a landowner to use property in a way that is not allowed by the zoning ordinance.  There are two types of variances which can be requested.  An area variance can provide relief from a physical dimension restriction, such as a setback or building height requirement.  A use variance permits a landowner to use the property in a way that is otherwise prohibited by the zoning ordinance.

To qualify for a variance, a landowner must meet three requirements: (1) an unnecessary hardship, (2) which is due to the unique condition of the property, and (3) which does no harm to public interests.

An unnecessary hardship exists when the zoning ordinance would unreasonably prevent the landowner from using the property for a permitted purpose.  An unnecessary hardship may exist if complying with the zoning ordinance would be unnecessarily burdensome relative to the purposes of the ordinance. Also, conditions unique to the property might include wetlands or steep terrain that would prevent compliance with the zoning ordinance.  If there is an alternative place on the property where a variance would not be required, this requirement would not be established.

Whether the request harms the public interest depends on the purpose and intent of the zoning ordinance.

Neither conditional use permits nor variances are available in every case.  However, they can be very useful tools if the applicable requirements are met and they are approved.

There can be additional issues which are municipality specific, so contacting an attorney experienced in municipal law can be a good way to ensure that all of your bases are covered.