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Dealing with Zoning Problems

Non-Conforming Use
Existing properties are often used in a manner that is inconsistent with a new zoning ordinance. Such uses are referred to as "non-conforming" uses because they do not "conform" to the requirements of the zoning ordinance. A use may be non-conforming because the nature or characteristics of the building itself do not conform to the zoning ordinance or the activity in the building does not conform. For example, a factory located in a residential zone is a non-conforming use. A two-story building located in a one-story zone is also a non-conforming use.
Generally, an existing non-conforming use may continue after the adoption of a zoning ordinance, but the right to continue a non-conforming use may be lost if the non-conforming use is abandoned. For example, if a fast-food restaurant is operated in a storefront in an area that is later zoned to exclude all food-related operations, the restaurant may continue to operate. If the restaurant closes, the right to continue the use may be lost if the same restaurant is not re-opened, or if some other similar food-related use is not begun within a certain period of time. If the building itself is non-conforming, the right to be non-conforming may be lost if the building is completely, or even partially, destroyed.
Amortization is another way to limit non-conforming uses. Under this approach, a non-conforming use is permitted to continue for a specific period of time, after which it must be converted to a conforming use.
Conditional Use
A conditional use is a use which is permitted under a zoning ordinance, but which must meet certain conditions. For example, a zoning ordinance may permit professional offices in a residential zone, if at least four off-street parking places are provided. When a use is conditional, the zoning ordinance often will require the property owner to file an application with local officials so that they may determine whether the conditions have been met.
A variance or special use permit is an exception to the requirements of a zoning ordinance. Most statutes permitting the adoption of zoning ordinances also detail the circumstances under which variances may be granted. Usually, hardship must be established to justify a variance. Some examples of hardship are as follows:
  • an under-sized lot on which a variance is needed to construct any useful structure
  • an odd-shaped lot that cannot satisfy the side-yard and setback requirements for the construction of a residence that would otherwise be permitted in the zone   
Spot Zoning
Local land use plans and zoning ordinances usually contain restrictions on land uses in specific areas (or "zones") outlined in the plan or ordinance. Once local officials have adopted a plan and ordinance, property owners may seek exceptions to the requirements and limitations, either through an amendment to the plan or ordinance or through an application for a variance or special use permit. In both cases, the amendment or application may be opposed on the ground that permitting special exceptions for specific properties is inconsistent with the overall land use plan or ordinance and constitutes illegal "spot zoning."
Whether or not a particular exception constitutes illegal spot zoning or is merely a permissible exception greatly varies according to the facts of the property use, the provisions of the applicable enabling statute, and the land use plan in question.