Jane M. Shields

One of the most vexing questions for a landowner or possible buyer is what can I do with this land? Is what I have in mind possible? The answers can be very confusing.

Some uses are allowed by right, others require conditional use approval, a special exception or variance. Each approach has different standards and procedures.

What is a Use by Right?
A use by right is one that is permitted in the zoning district where the property is located. When seeking to develop land, or buy land with existing improvements, a use permitted by right is the shortest path to the desired goal.

What is a Conditional Use?
A conditional use is also a use permitted by right, but one that requires the applicant to show that specific criteria are met, and also requires approval of the municipality's governing body. As suggested in the name, the governing body may impose conditions (which should be reasonable) upon the grant of the application for the desired use. These conditions may be seemingly unrelated to the requested use itself, and may be oriented toward the details of land development.

What is a Special Exception?
The mantra of land use attorneys is that a special exception is neither special, nor an exception. It is a permitted use, one which requires a hearing before the municipality's zoning hearing board. As with a conditional use, the zoning hearing board may also impose conditions upon the application. It is a more formal application, which affords fewer opportunities for negotiations to reach common ground than conditional use applications.

What is a Variance?
Variances are a form of relief granted by zoning hearing boards from the strict requirements of zoning ordinance provisions. An applicant for a variance must show that the requirements of the zoning ordinances inflict an unnecessary hardship. The hardship must result from the physical characteristics of the property, such as irregular shape, narrowness, steep slopes, wet soils or the like. Proof of the right to a variance rests on the applicant, and it may be difficult to show unnecessary hardship.

Conclusion
If you determine that the use you desire is a conditional use, or requires a special exception or variance, you may expect that the approvals you need will take several months and thorough preparation. Whenever contemplating a change in use of property, expansion of a use, or acquisition of land for any purpose, a close analysis of zoning requirements is recommended.

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