Zone Changes, Variances, Conditional Uses, Special Uses. Explanations and Scenarios

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1 Zone Changes, Variances, Conditional Uses, Special Uses Explanations and Scenarios

2 Zone Changes When you want to change the use of the land Has the future envisioned by the plan arrived? Is the change in the benefit of public interest? Consistent with Comp Plan Public hearing process Requires Legislative Approval Cannot be arbitrary or fickle

3 Conditional Use Allows uses if certain criteria, or conditions, are met Conditions can include: Parking Location Setback Screening

4 Conditional Use Allows uses if certain criteria, or conditions, are met Not subject to a case-by-case basis Must be listed as a conditional use for the district Examples:

5 Special Uses Difficult to fit within any use zone by right Case-by-case basis review and approval Does not change the underlying zone Examples:

6 Variances Authorization to use property in a manner otherwise not allowed by the zoning ordinance Alleviates hardship based on distinctive features of a property that make the zoning ordinance not fit well To be granted sparingly

7 Scenario #1 The City receives a report that a garage is being constructed in the floodplain without a permit. After investigating, they discover that the garage was not elevated to meet floodplain standards. The building owner applies for a variance, stating that the building is nearly complete, and there will be a hardship if he is required to make changes at this point because he does not have the money to complete the project. Should the Board of Adjustment grant the variance? Answer: No. Variances should only be granted for unnecessary hardships due to characteristics of the land or property. Negligence of the permitting process resulted in the owner s stated hardship, not the unique characteristics of the property itself.

8 Scenario #2 A property owner in a residential zone wants to start a doggie day care. Her property is in a residential zone, and the Comprehensive plan shows that the lot should remain residential in the future. Animal clinics are not an allowable use in a residential zone, but are allowed in any commercial zone. The property owner asks if she can apply for a variance that would allow her to have the doggie day care in that location, stating that it will not affect the neighbors because it will be very different than a regular animal clinic, and it will benefit the neighbors, because many of them will bring their dogs to her facility. She also thinks that it is a hardship if she is not allowed to use her property for this purpose, because she does not have the money to purchase another property. Should the City advise her to apply for a variance, zone change, or find another location? Answer: Find another location. Zone changes should only be granted when such changes is consistent with the comprehensive plan. Variances should be granted based on a condition of the land/property which causes the land to be unusable if it were not for a variance from the regulations and should not be used to accommodate a use inconsistent with the comprehensive plan. The owner s financial circumstances, while a personal hardship, are not a legitimate reason to grant a variance especially if it is inconsistent with the essential character of the neighborhood.

9 Scenario #3 The City s zoning code allows for an Ag Estate Dwelling Site (AEDS) to be split off of a parcel that is 80 acres or more in an agricultural zone. The City s zoning code lists the minimum size of an AEDS as 2 acres. A property owner has an 80 acre parcel that has a 1.8 acre area that is divided from the rest of the property by a drainageway. They apply for a variance, stating that the property that is divided from the rest is unusable as agricultural land, and they have a hardship because of the physical characteristics of the property where the drainageway splits off this small parcel of land (see map). The 1.8 acre parcel will still meet the minimum lot size requirements for a septic system. Should the Board of Adjustment grant the variance? Answer: Yes, a variance would be appropriate since it is an attribute of the land that causes the hardship. The AEDS use is an allowable use but for the.2 acre discrepancy and so the variance is ok.

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11 Scenario #4 An organization applies for a Special Use Permit for a group home for teenagers in a residential zone. At the public hearing, several neighbors show up and tell the Planning Commission that they should not grant the Special Use Permit because the kids who live there may have criminal records, and many of them will have tattoos and piercings, and they think that allowing the group home will be detrimental to the neighborhood. Should the Planning Commission grant the Special Use Permit? Why or why not? Answer: Yes, the permit should be granted. The who of a development should not be a factor in deciding whether the use is appropriate for the location.

12 Scenario #5 Consider the above situation with a proposed group home, but another neighbor shows up and addresses the Planning Commission. She states that she thinks that the Special Use Permit should not be granted because the same organization has a group home in another part of town and the neighbors have experienced many problems as a result. She brings up issues such as large amounts of traffic coming and going from the home at all hours, a loud alarm system that commonly goes off during the night, waking the neighbors, and litter, particularly cigarette butts, that is pervasive along the sidewalks around the home. She is retiring in a few years and planning on moving to be closer to grandchildren, and she is concerned that if the Special Use Permit is granted and these issues start occurring on or near her property, it will affect the resale value of her house. Should the Planning Commission grant the Special Use Permit? Why or why not? Opinion: The special use permit in this case could be denied because the factors brought forward are pertinent to the appropriateness of the use itself rather than who will be occupying the lot. When granting or denying permits, variances, or zone changes, it is important to cite and document all pertinent evidence to show that the decision made was based on facts should the decision be challenged in court.

13 Scenario #6 A property owner is building a house in the floodplain. Due to floodplain requirements, the City informs her that she will need to elevate the house a minimum of four feet above existing grade. The property owner is disabled, and applied for a variance, stating that she has a hardship due to her disability. Should the Board of Adjustment grant the variance? Answer: No, the board should not grant the variance. Variances are not to be granted based on personal hardship. While some exceptions have occurred for disable persons, the granting of a variance must also show that not issuing the variance would be contrary to the public interest. In this case, the base flood elevation regulation is for the public safety so granting a variance is not necessarily in the public interest and could in fact cause harm to the inhabitant in the case of a flood.

14 Scenario #7 A residential land owner want to build a porch with an overhang onto their house. The house is a corner lot with 25 set backs on the front yard and 15 set backs on the side yard. The front of the house already encroaches on the 25 setback and the porch is proposed to be built on the front of the house an additional 7 feet. The structure would be attached to the house. The owner requests a variance to build the porch and overhang into the front yard. Should the variance be granted? Answer: No, while the house is already non-conforming, a variance should only be granted when unnecessary hardship can be proven and should not be granted based on convenience or personal hardship.