The difference between a conditional use permit and a variance

On Behalf of | Dec 13, 2021 | Real Estate Law |

When a person wants to purchase a parcel of land in Cumming, that person wants to know what type of structure can be built on the land. Apart from natural features such as hills, streams, rivers, and general topography, the most important control is the Cumming Municipal Zoning Code. The Code defines what kind of uses can be built on a particular parcel, and if the Code does not permit the intended use, the new owner may be forced to seek a conditional use permit or a variance before proceeding. The meaning of these two terms and the differences between them may mean the difference between proceeding with development plans or scrapping the project entirely. .

Definition of a “variance”

A variance is a slight modification from the terms of the zoning ordinance that is intended to allow a building to be constructed where the literal terms of the ordnance, if enforced literally, would cause the owner severe hardship. Two aspects of this definition are especially important. The modification from the terms of the zoning ordinance must be minimal, that is, the variance cannot be used to defeat or alter the substantive meaning of the zoning code as applied to the parcel in question. A variance should relate to the height, area, placement, setback, yard, buffer, landscape strip, parking and loading regulations, or density as applied to specific property when, because of particular physical surrounding, shape, or topographical condition of the property. For example, a parcel with a steep slope would not be suitable for a filling station, and a variance changing the access requirements for the pumps may be the only solution.

Definition of a Conditional Use Permit

Conditional use permits are used to regulate uses that are contrary to the uses allowed in a particular zoning district but which may be allowed if the number of similar uses is not excessive and if the location in the neighborhood, is found to be compatible with surrounding uses. The application for a conditional use permit must be approved by the mayor and city council. As implied by the name, a use undertaking under a conditional use permit is subject to various conditions that may be imposed by the mayor and city council

The differences

The most important difference between a variance and a conditional use permit is the scope of relief from the literal terms of the zoning ordinance. A variance cannot be used to construct a building whose use would significantly conflict with the other buildings allowed as permitted uses in the zoning district in question. Such conflicts can be eliminated if a conditional use permit is granted for the site in question.

The assistance of an experienced real estate attorney may assist a landowner in working through the bureaucratic process. A knowledgeable attorney can review the circumstances faced by the owner and suggest a strategy for obtaining either a variance or a conditional use permit.