Zoning Special Exception

Zoning Special Exception

commercial real estate lawyer in Lafayette IN

Kevin J. Riley

Posted by Kevin J. Riley, on September 12, 2016

Special Exceptions and Variances –

Permitted Deviations from Zoning Ordinance Standards

As mentioned in our blog Zoning – What Commercial Property Owners Need to Know, zoning ordinances typically establish zones within which land is classified and set forth specific development and use regulations for each zone.

With regard to the use of property, zoning ordinances may allow a particular use in a zone by right or by special exception, or not at all.  Generally speaking, if a use is permitted by right, the owner of the property does not have to obtain consent to the use from the governmental agency with jurisdiction over the real estate.  Under Tippecanoe County’s zoning ordinance, an example of a use by right would be a single family home in an R1 (residential) zone.

Special Exceptions

If a use is not permitted by right, the use may be permitted by special exception.  A special exception is a use that is permitted provided that certain conditions are met and, upon application, the use is authorized by the Board of Zoning Appeals.  An example of a use permitted by special exception under Tippecanoe County’s zoning ordinance is a winery in an Agricultural (A) zone.

In Tippecanoe County, the Area Board of Zoning Appeals (“ABZA”) has jurisdiction over requests for special exception with the exception of requests relating to property located within the Lafayette city limits which are under jurisdiction of the Lafayette Division of the Board of Zoning Appeals (“LDBZA”).  For convenience, the ABZA and the LDBZA will hereafter be referred to as the “BZA.”

A property owner wanting to use property in a manner only allowed by special exception, must file a petition for the special exception with the BZA.  The petition will be heard at a public hearing.  The BZA may grant a request for special exception if the following conditions are met:

  1. the use table set forth in the zoning ordinance authorizes the proposed used by special exception in the zone under which the subject property is classified;
  2. the requirements and development standards set forth in the ordinance for the proposed use are met;
  3. granting the special exception will not threaten the general purposes served by the ordinance; and
  4. the use will not materially and permanently injure other property or uses in the same vicinity because of traffic generation, placement of outdoor lighting, noise production or hours of operation.

Subject to certain exceptions, if the request for special exception is granted the use will be

allowed for so long as the use is established within one (1) year of the date the special exception was granted, the use is not discontinued for a period of one (1) year or more, and the owner complies with the terms of the zoning ordinance and any commitments that were required and provided as a condition of the special exception request being approved.

Variances

Property owners may also be permitted to deviate from the development standards required by a zoning ordinance by obtaining a variance.  Such deviations might include a reduction in the number of required parking spaces, a reduction in the distance that a building must be setback from a property line, or a reduction in the minimum amount of vegetative cover required for a lot.  Variances are often sought when an owner wishes to develop or redevelop property, or cure an existing non-conformity.

In Tippecanoe County, the BZA has jurisdiction over requests for variances.  Requests for variances must be filed in writing with the BZA.  Similar to a petition for special exception, a petition for variance will be heard at a public hearing.  The BZA may grant a request for a variance if the following conditions are met:

  1. the variance applied for is not a variance from the permitted uses established by the ordinance;
  2. approval of the variance will not be injurious to the public health, safety, morals, and general welfare of the community;
  3. the use and value of the area adjacent to the property subject to the request will not be affected in a substantially adverse manner
  4. the terms of the zoning ordinance are being applied to a situation that is not common to other properties in the same zone;
  5. the strict application of the terms of the zoning ordinance will result in an unusual and unnecessary hardship;
  6. the hardship involved is not self-imposed or solely based on a perceived reduction of or restriction on economic gain; and
  7. the variance sought provides only the minimum relief needed to alleviate the hardship.

Experienced Counsel

RTS’s experience attorneys are available to advise and assist clients regarding special exception uses and development standard variances that may apply to their property.

 

 

**Reiling Teder & Schrier, LLC is an Indiana Limited Liability Company. The information contained in this website has been prepared by Reiling Teder & Schrier, LLC for informational purposes only, and is not legal advice. The information on this website should not be relied upon to make any decision, legal or otherwise. If you have any specific questions or inquiries regarding any of the information contained in this website, you should consult with an attorney licensed in your state. The information contained in this website pertains only to matters of Indiana law and the laws of other states may be completely different from the laws of the State of Indiana.