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Legal

Exception to the Rule vs Grandfathering

Mistaken Identity — Variance vs. Nonconforming Use

What if you're working with a client who is buying or selling a piece of property and its use is outside of the current zoning guidelines? Can you ask for an exception to the rule, or maybe the property is grandfathered for this use?

The intelligent real estate agent understands the lingo of the trade and delivers the value of their knowledge to their clients. Do you understand the difference between these often confused terms? Variance vs. Nonconforming Use, each represents an exception to the current zoning code, but in very different ways.

Understanding a Variance

Getting permission from governmental zoning authorities to build a structure or conduct a use that is expressly prohibited by the current zoning laws or an exception from the zoning laws represents a variance. A variance gives some measure of elasticity to the zoning game.

The use of variances can have many forms. Many variances are granted conditioned upon the commencement of construction within a certain time period (for example, 12 months). This helps to eliminate land speculation. 

There are also use variances such as for apartment use in a single-family residential area. There is also an area or building variance where the owner attempts to get permission to build a structure larger than permitted.

To be granted a variance, the applicant usually must: 
 
  • Describe how they would be deprived of the reasonable use of the land or building if it were used only for the purpose allowed in that zone. 
 
  • The request should be due to unique circumstances and not the general conditions in the neighborhood.  
 
  • Detail how the use sought will not alter the essential character of the locality or be contrary to the intent and purpose of the zoning code.


Understanding Nonconforming Use

This exception is a permitted use of real property that was lawfully established and maintained at the time of its original construction but that no longer conforms to the current zoning law. 

The nonconforming use might include: 

 

  • The structure itself
 
  • The lot size 
 
  • Use of the land or use of the structure

The use will eventually be eliminated, although the nonconforming use status does not necessarily have to be discontinued upon the sale or lease of the property. 

By allowing the use to continue for a reasonable time, the government can assure itself that the use will not continue indefinitely and, at the same time, avoid having to pay just compensation for taking the property through condemnation.

When purchasing a nonconforming structure, a buyer should be made aware that in case of substantial destruction by fire or otherwise, the zoning statutes may prohibit reconstruction of the structure. In such a case, a buyer should discuss the possibilities of purchasing demolition insurance from an insurance agent. A nonconforming use can also terminate upon abandonment of the property.

So in the simplest terms, a  variance is an exception to the existing zoning, whereas a nonconforming use (also known as a grandfather clause) arises when there is a change to the zoning, but an existing use is still permitted to continue.

What is your experience with Variance vs. Nonconforming Uses? Have you ever had to deal with one? And if so what was your experience with the process?
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