What are zoning regulations, and how do variances and nonconforming uses work?
Zoning divides land into districts (residential, commercial, industrial) with different permitted uses. A zoning variance is a waiver allowing a property owner to use their property contrary to the zoning code when strict application of the code creates a hardship. A nonconforming use is a use that existed before the zoning ordinance was enacted and is allowed to continue even though it no longer complies with current zoning; however, if the use is discontinued, it typically cannot resume.
Key Takeaways
- Zoning divides land into districts (residential, commercial, industrial) with different permitted uses.
- A nonconforming use is a use that existed before the zoning ordinance was enacted and is allowed to continue even though it no longer complies with current zoning.
- However, if the use is discontinued, it typically cannot resume.
- Rules vary by state; always learn your specific state's requirements.
Property Ownership & Land Use on the Real Estate Exam
Zoning is one of the most important land use controls affecting real estate value, development potential, and agent advice. Agents must understand whether a property is zoned for its intended use and what changes or variances might be required. Zoning questions appear on all state exams because they affect property value and development feasibility. Understanding variances and nonconforming uses is essential for advising clients about development options and the permanence of existing non-zoning-compliant uses.
Understanding Property Ownership & Land Use: Key Concepts
What It Means
Zoning is a government regulation that divides land into districts and specifies what uses are permitted in each district. The power to zone comes from the state police power delegated to local governments (cities and counties). A typical zoning code divides land into residential, commercial, industrial, and agricultural districts. Within each district, only certain uses are permitted. For example, a residential zone might permit single-family homes but prohibit commercial businesses, manufacturing, or multi-family apartments. This preserves neighborhood character and protects property values.
Zoning ordinances typically specify not just what uses are allowed but also limits on building size, setback requirements (distance from property lines), height restrictions, and parking requirements. An owner cannot simply use their property however they wish; they must comply with the zoning code applicable to their location. If an owner wants to use property in a way that violates zoning, they must seek relief through a variance, a conditional use permit, or a zoning amendment.
A zoning variance is a waiver from the zoning ordinance granted by the local zoning board or planning commission. A variance allows a property owner to use their land or build in a way that violates the zoning code. However, variances are not freely granted. The owner must typically demonstrate that the zoning code creates an undue hardship due to a unique feature of the property (such as an unusual shape, size, or topography) and that the variance will not harm neighboring properties or the community's zoning plan. The property owner's own financial hardship (such as inability to afford the zoning-compliant use) is generally not sufficient grounds for a variance. Variances are discretionary, and the zoning board can deny them.
A nonconforming use (also called a grandfathered use) is a use that was lawfully established before the zoning ordinance was enacted or amended but now violates current zoning. For example, if a property had a small grocery store before the area was zoned residential, the grocery store may be allowed to continue as a nonconforming use. The law recognizes that it would be unfair to force immediate cessation of a use that was legal when established. However, nonconforming uses are disfavored, and most zoning codes impose restrictions on them. If a nonconforming use is discontinued for a specified period (often one or two years), the property loses its nonconforming status and must comply with current zoning. Similarly, a nonconforming use cannot be expanded or intensified beyond its scope at the time the zoning changed. A nonconforming use is generally not transferable; if the owner sells the property, the new owner must comply with current zoning unless they can prove the use is truly nonconforming.
Exceptions and Limitations
Another common tool is the conditional use permit (also called a special permit or special exception). This allows a use that is listed in the zoning code as permitted conditionally, with the planning board having discretion to approve it if the owner meets specified conditions. This is different from a variance, which is a waiver of the zoning code entirely.
Property Ownership & Land Use Rules by State
Each state has its own rules when it comes to property ownership & land use. Here are a few examples of how requirements differ:
California
California Government Code Section 65000 et seq. establishes zoning authority. Cities and counties in California adopt zoning ordinances as part of their general plan. California allows variances under strict conditions. The California Coastal Act imposes additional zoning and environmental requirements in coastal areas. Local zoning varies significantly; some jurisdictions are quite restrictive (particularly in Northern California), while others are more permissive. Nonconforming uses are addressed in individual municipal codes but generally follow the discontinuance rule.
Texas
Texas Local Government Code Chapter 211 authorizes zoning. Texas cities have zoning authority; unincorporated areas are typically subject to county zoning or may be unzoned. Texas allows variances and conditional use permits under local ordinances. However, Texas does not have mandatory state zoning requirements, so each municipality's zoning code varies. Nonconforming uses are protected under Texas law; the discontinuance period varies by municipality. Agents must understand local zoning because it varies widely across the state.
Florida
Florida Statutes Chapter 163.3161 establishes zoning authority and requires comprehensive planning. Cities and counties adopt zoning ordinances. Florida allows variances and conditional use permits. The Florida Statute requires local governments to follow comprehensive plans. Nonconforming uses are addressed in municipal codes; discontinuance rules vary. Some areas of Florida are heavily restricted due to environmental concerns (wetlands, coastal areas, stormwater), while others are more open. Understanding local zoning is critical in Florida.
Know the difference between a variance (a waiver from the zoning code) and a conditional use permit (a use that can be approved with conditions). Understand that nonconforming uses existed before the zoning code and can continue but cannot be expanded, and that if discontinued, they typically cannot resume. Expect questions testing whether a particular use is permitted, conditional, or requires a variance. Know that zoning is local, so each city or county has its own code. Be able to identify when a client might need a variance and the burden of proof required (unique property feature plus undue hardship).
Rules vary across all 50 states
When you join LicensePrep, you get study materials tailored to your specific state so you only learn what you need for your exam.
Start practising →