Variances and Special Exceptions

One of the major differences between a nonconforming use and variances and special exceptions (a/k/a “special uses”) is that the latter two are sought after the zoning ordinance is passed. First, to define each of these new terms, a:

[V]ariance is granted by a zoning authority to afford relief from the strict enforcement of a zoning ordinance, and permits a use of the property in question which the ordinance otherwise forbids.[1]

while a special exception is:

[A] prohibited use that involves a deviation from legislated zoning classification—is a permitted use within the zoning classification if certain criteria are satisfied.[2]

Both of these exceptions require requests to be made to the board of zoning appeals which oversees zoning enforcement in the area in which the property is located.

A variance request is generally presented to the Board of Zoning Appeals,^[3] which must make a written determination based upon appropriate findings of fact that:

(A) The approval will not be injurious to the public health, safety, morals and general welfare of the community;

(B) The use and value of the area adjacent to the property included in the variance will not be affected in a substantially adverse manner; and,

(C) The strict application of the terms of this chapter would result in practical difficulties in the use of the property.

The question of a special exception requires much more input and output from the board of zoning appeals. To illustrate, here is part of the statute from St. Joseph County dealing with the question:

(A)   Statement of purpose.  Certain land uses, while they may be generally appropriate in certain districts and under certain circumstances, may have characteristics and locational impacts which, if inappropriately located, may have a detrimental effect upon other land uses within the district and St. Joseph County. It is therefore recognized that these land uses should be regulated in order to preserve property values, as well as promote the public health, safety, comfort, community moral standards, convenience and general welfare of St. Joseph County.

(B)   Uses permitted by special use.  Only those uses identified in each district as uses permitted by special use shall be permitted by special use in each district.

(C)   Grant of a special use.

(1)   The Board of Zoning Appeals is hereby authorized to hear and make a favorable recommendation, unfavorable recommendation or no recommendation to the County Council on a petition for a special use.[4]

[1] Hamilton Cty. Plan Comm'n v. Nieten, 876 N.E.2d 355, 359 (Ind. Ct. App. 2007)

[2] Steuben Cty. v. Fam. Dev., Ltd., 753 N.E.2d 693, 701 (Ind. Ct. App. 2001)

[3] St. Joseph County Zoning Ordinance, § 154.562.

[4] St. Joseph County Zoning Ordinance, § 154.563.