This post originally appeared on Burt M. Polson's Real Estate Journal and is republished with permission. Find out how to syndicate your content with theBrokerList.


Hey, I’m a Grandfather – Part 2

In my last article we discussed several aspects of the zoning ordinance and how it affects property use. The legal non-conforming use (or “grandfathered” use) of a used car lot I had for sale was an example discussed regarding changes in zoning districts.

The effective tool known as the conditional use permit.

A conditional use permit allows a municipality to consider special uses, which are not directly permitted within a zoning district or a use by its nature requires additional conditions placed upon it. Some examples are that involving the sale of liquor, convenience markets, service stations, theaters, private schools or restaurants with a drive-through.

For example, a new service station desires to establish business in one of the several commercially zoned districts. It is an allowed use, however a conditional use permit will always be required because this is considered an intensive use and the municipality wants to be sure all possible negative scenarios are mitigated.

In our earlier example of the used car lot I had for sale, it is at the discretion of the municipality to allow any changes to the current non-conforming use. Remember, the used car lot had been at the same site for decades, but now the land is zoned for a residential use. The used car lot could continue operations provided there are no significant changes such as expansion of buildings, services, products lines or even hours of operation.

The business owner would apply for a conditional use permit requesting he be allowed to make the changes requested. The permit process can be costly and time consuming, sometimes taking six months or longer.

Consideration of approval is at the discretion of the city or county staff, planning commission and sometimes the city council or board of supervisors. If approved, the use permit usually includes a set of conditions which are required to be met in order to develop the land or for the business owner to open for business as well as conditions which must be maintained on-going. Approval usually requires a public hearing at which time neighboring property owners are provided notice and are allowed to attend to express their opinions, views and concerns.

What about a variance?

A variance is a process in which a property owner, developer or business owner applies to deviate from the standard set of rules for land use or land development. There are two types of variances: an area variance is for the deviation from the rules as it pertains to a physical aspect of a property such as setbacks from adjacent property lines and structures, the distance from a street or for the height of a building; and a use variance if for the deviation from the rules as it pertains to the use of a property under the zoning ordinance. A variance based on deviation from the zoning district of a particular site is seldom awarded. The process in applying for and securing a variance is similar to that of a conditional use permit.

Photo Credit: “The Bentley Mark Vi” by Serge Bertasius Photography Source:

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