Getting Rezoned: Applying for a Variance or Conditional Use Permit

Land use and zoning regulations are laws that determine the immediate and allowable use of property. Zoning ordinances are generally a local matter. For example, cities like Los Angeles have zoning codes that govern the development, size, shape, and use of property.

Zoning codes can also change over time. You may be eligible for a zone change if your intended use is not currently allowable in the zoning district. However, rezoning land can be challenging. In some situations, a business or property owner may qualify for a variance permit or a conditional use permit.

This is a general overview of variance and conditional use permits, along with key information for submitting a successful application. However, land use and zoning laws vary widely by state and local jurisdictions. Contact a local land use and zoning lawyer for legal advice.

What Is a Variance Permit?

A local zoning authority may grant a variance permit if the applicant would suffer a significant, disproportionate burden under the ordinary zoning rules.

In seeking a variance permit, an applicant should explain in general:

• The specific nature of their real estate project
• Why a variance is necessary
• How the owner would suffer a hardship without a variance
• Why a variance is consistent with broader land use regulations

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What Is a Conditional Use Permit?

A conditional use permit (CUP) allows a business, developer, or property owner to engage in a specific land use so long as it complies with the conditions set forth in the permit.

If approved, a conditional use permit application will come with a specific list of conditions. In some cases, CUPs have an expiration date and will require a holder to reapply. However, in some jurisdictions, CUPs “run with the land.” In other areas, they expire after a period of time or sale. In seeking a CUP application, applicants should explain in general:

• Describe the specific nature of the project
• Explain the benefits of their project
• Clarify its consistency with the broad city or county planning code
• Develop a proactive mitigation plan to allow for conditional use

Environmental Impact and Public Input

Many states require an environmental review when rezoning or granting a special use permit for certain types of projects. This may require disclosing any significant environmental impacts and public health concerns to the property and the surrounding areas.

The public may have a chance to respond to the proposed project. Getting public input could potentially halt, delay, or require making changes to the proposed project.

Make sure you have lawyers look at the proposed project upfront, before you get caught in a problem.

Do You Need a Lawyer?

Discretionary entitlements like variance permits and conditional use permits are requests to deviate from a local land use and zoning code. Any property owner could make those requests.

However, Stephen A. Jamieson, a land use and zoning attorney at Solomon Saltsman & Jamieson in Los Angeles, says legal representation can pay off for two key reasons:

1. “The first and foremost reason is to find a way to avoid, if possible, having to get a conditional use permit (CUP), since a lot of people who are not lawyers who do this are simply complying with what a city planner tells them is necessary. There are ways to legally avoid having to get a discretionary entitlement, like a conditional use permit or a variance, or something decided as a result of a public hearing.”
2. “The second reason is if it is not possible to avoid having to get a CUP or a variance, the next best thing the lawyer can do is to narrow the issues that a planning commission or a city council can decide.”

Example of How Legal Expertise Can Help in the Permitting Process

Jamieson uses the example of a drug store requesting a CUP in order to sell alcohol.

“You go through a public hearing, and people come out of the woodwork to talk about the good, the bad, and the ugly of alcohol. Ultimately, the planning commission or city council says, ‘OK, we’re going to grant it. But we’re going to prohibit you from selling single bottles of beer or wine in smaller than 750 ml or airplane-size bottles of whiskey.'”

What happens then? “Well, what a non-lawyer might do is say, ‘OK, that doesn’t seem fair, but really, what can I do about it?’ A lawyer who is knowledgeable in that area would say, ‘Wait a minute. In California, the state constitution preempts the regulation of alcohol. Article XX Section 22 says that only the state department of Alcoholic Beverage Control (ABC) can regulate alcohol,” explains Jamieson.

“Once the CUP is issued, the applicant has a very short time frame to contest such conditions. And if that time’s long gone, I may not be able to tell the applicant not to comply with that CUP. The operator may be cited civilly, administratively, or criminally, which is going to cost a lot of money to defend.”

The Importance of Preparation

Businesses and property owners seeking a land use permit must prepare a detailed application. In far too many cases, variance permits and conditional use permits are denied because the applicant failed to provide enough additional information.

It’s also not unusual for a planning division to issue a seemingly innocuous condition as part of your permit approval that is actually onerous. A reputable land use attorney will know the municipal code and other laws and regulations, recognize potential problems with your proposed use, and nip them in the bud. Otherwise, it may be too late or much more expensive.

“Make sure you have lawyers look at the proposed project upfront, before you get caught in a problem,” Jamieson says. “It’s all about preparation, just like anything else. Doing your preparation means reaching out to city professional staff, neighborhood groups and stakeholders, chambers of commerce, neighborhood councils, and the police department.”

“Reach out to all the people concerned about whether or not you’re going to put that business there, and whether or not that business is going to be doing certain types of business. If you’ve done your preparation, then the hearing will have the best opportunity to go smoothly.”

Find an Experienced Land Use and Zoning Lawyer

Get legal help to navigate specific plan amendments and applications with your local planning department or city clerk. Visit the Super Lawyers directory to find an experienced land use and zoning lawyer in your area. For more general information about this area of law, see our overview of land use and zoning law.