Zoning Flexibility Devices
Sometimes, zoning laws get in the way of a landowner’s desires. If a landowner wants to use her land in some way that a zoning ordinance doesn’t allow, here are the steps she can take:
If she’s already using her land in that way, determine whether that use precedes the zoning regulation so that it’s protected as a nonconforming use.
All zoning ordinances protect preexisting, nonconforming uses to some extent.
If her desired land use isn’t protected as a nonconforming use, determine whether the zoning ordinance lists her desired use as a conditional use in that zone.
If it does, find the conditions that the ordinance requires to be satisfied and apply for a conditional use permit. If it doesn’t, just move on to the next step, because you can’t get a conditional use permit if the use isn’t listed as a conditional use.
Apply for a variance.
To get a variance, typically the landowner must prove that she can’t get a reasonable return from her property as zoned because of the unique physical circumstances of her property, and she must prove that granting a variance wouldn’t alter the essential character of the area.
Petition the city or county to amend the zoning ordinance, usually to give the landowner’s property a different zoning designation that permits her desired use.
If all of the preceding actions fail, or if any of them are unavailable or would be futile or unduly burdensome to pursue, the landowner can then consider challenging the constitutionality of the regulation in court
Examples of such a challenge include claiming that the regulation denies substantive due process or equal protection or is a taking of the landowner’s property requiring just compensation.