Applying for a Variance or Conditional Use Permit in SoCal
An overview of common zoning requirements and how to get them
on June 26, 2020
Updated on August 10, 2022
Land use and zoning statutes, ordinances, and regulations are laws that determine the immediate and allowable use of property. For the most part, zoning is a local matter. As explained by Los Angeles City Planning, the city has a zoning code governing development, size, shape, and use of property. To be clear, the code can change: You may be able to get land rezoned if your intended use is not currently allowable, but it can be challenging.
Fortunately, there are other options available. A business or homeowner may qualify for a variance permit or a conditional use permit. Here, you will find a general overview of variance permits, conditional use permits, and some key information that you will need to submit a successful application.
Do You Need a Lawyer?
Discretionary entitlements like variance permits and conditional use permits are, essentially, requests to deviate from a local land use and zoning code. And while anyone can make that request, Stephen A. Jamieson says legal representation can pay off for two key reasons.
“The first and foremost reason is to find a way to avoid having to get a conditional use permit, if possible, because a lot of people that are not lawyers that do this are simply complying with what a city planner tells them is necessary,” says Jamieson, a land use and zoning attorney at Solomon Saltsman & Jamieson in LA. “There are ways to legally avoid having to get a discretionary entitlement, like a conditional use permit or a variance, or something that is decided as a result of a public hearing. 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 that expediters generally can’t or simply don’t is to narrow the issues that can be decided by a public hearing body, like a planning commission or a city council.”
He uses the example of a drugstore 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, and 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.’ Well, what a non-lawyer might do is say, ‘OK, well 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 regulation of alcohol is preempted by the state constitution. Article XX Section 22 says that alcohol can only be regulated by the state department of Alcoholic Beverage Control (ABC).’ Other states can be different.
“Once the CUP is issued the applicant has a very short period of time 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, because the operator may then be cited, civilly, administratively, and/or criminally, which is going to cost a lot of money to legally defend.”
What is a Variance Permit?
Under California state law, a local zoning authority may grant a variance permit if the applicant would suffer a significant, disproportionate burden should the ordinary rules apply.
In seeking a variance permit, an applicant should be prepared to explain in general:
- The specific the nature of their project;
- Why a variance is necessary;
- How a hardship would be suffered without a variance; and
- Why a variance is consistent with broader land use regulations.
What is a Conditional Use Permit?
A conditional use permit (CUP) is one that allows a business, developer, or property owner to engage in a certain type of land use, so long as it complies with explicit Conditions.
If approved, a CUP will come with a specific list of conditions that the applicant must satisfy to operate legally. In some cases CUPs have an expiration date and will require a holder to re-apply, even though that may be illegal as CUPs are said to “run with the land.” In seeking a conditional use permit, applicants should be prepared to 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; and
- Develop a proactive mitigation plan to allow for conditional use.
The Importance of Preparation
Businesses, homeowners, and property owners seeking a land use permit must prepare a detailed, compelling application. In far too many cases, variance permits and conditional use permits are denied simply because the applicant failed to provide sufficient information.
It’s also not unusual for a governing body to issue a seemingly innocuous condition as part of your permit approval that is actually onerous. A reputable land use and zoning attorney will know the municipal code and other laws and regulations, recognize potential problems of your proposed use from the start, 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. And doing your preparation means reaching out to city professional staff, as well as potentially reaching out to neighborhood groups and stakeholders, and chambers of commerce, and neighborhood councils, and the police department, and all the people that you would think would be 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.”