In communities that have adopted zoning regulations, boards of adjustment serve as a relief valve that can allow for the use of property that is not otherwise permitted under the property’s specific zoning category . Boards of adjustment have the power to grant dimensional variances, which are deviations from the dimensional requirements of a zoning ordinance pertaining to height, width, location of structures, or setbacks. For example, if a property owner wants to build or extend a structure within the required side, front or rear yard, she can appeal to the board to request permission to build closer to the property line. Applicants for a variance must show a need for the variance and that they are not unnecessarily trying to circumvent the zoning regulations. An unusually shaped lot or other unique physical characteristics of the particular property that make it hard to comply with the setback or height requirements are typically justifications for a variance. In one Kentucky case, the appellate court found that it was appropriate to grant a variance to allow building a house closer to the street because there was a sinkhole in the rear yard that prevented building the house farther back. When a board grants a variance it must make certain statutorily required findings of fact. Variances run with the land, so subsequent owners acquire the benefit without further approvals.
Boards of adjustment also have the power to grant conditional uses. Conditional uses are those that are not allowed by right in the zone, but may be approved by the board if there is evidence that the use is suitable for the particular property. Typically, conditions are attached to a permit that ensures that the proposed use will be compatible with the area. For example, a conditional use permit that approves pilates or yoga classes in a private residential home may include conditions limiting the number of students or times of classes. A conditional use that allows live music, perhaps for a nightclub, may include limits on outdoor music or speakers.
Another function of boards of adjustment is to decide administrative appeals. For example, if a property owner applies for a building permit or a certificate of occupancy for a particular use and the permit is denied, the owner can appeal to the board on the basis that the official made an error or misinterpreted the law. The board has the power to overturn the building or zoning official’s decision and order the permit to be issued. Another type of administrative appeal is when a property owner wants to change one type of legal nonconforming use to another . A legal nonconforming use is one that has been ongoing on the property and was once legal in that zoning category, but the zoning regulations subsequently changed to prohibit it. In appeals that involve the changing nonconforming uses the board must determine that the new use is as intensive or less intensive than the previous use. If the change of use is approved the property owner does not need to obtain a zone change to engage in the proposed use.
Board of adjustment matters are considered due process proceedings. Notice letters are sent to neighboring property owners, and they have a right to attend the hearing and speak. Many local regulations also require the posting of a sign to give notice of the hearing. A legal advertisement appears in the local newspaper as well. Because neighbors are given notice, it is always a good idea to talk to them in advance of the hearing to discuss any concerns they may have about the proposal prior to the hearing.
Christine Neal Westover is an attorney in the Lexington office of McBrayer. Ms. Westover has extensive experience practicing law in both the public and the private sector. The focus of Ms. Westover’s experience and area of practice is land use law since her assignment in 1991 as legal advisor to the boards, commissions and divisions of government within Lexington Fayette County on all matters related to planning, zoning and land use law. Ms. Westover has an extremely deep and broad expertise of the laws governing land use in Kentucky and the procedural and substantive complexities that underpin planning and zoning matters. She also has significant experience dealing with governmental divisions such as Building Inspection, Code Enforcement and other administrative bodies due to their regulatory authority in land use matters. Ms. Westover can be reached at email@example.com or (859) 231-8780, ext. 137.
This article is intended as a summary of federal and state law and does not constitute legal advice.