Checking City and County Ordinances
Determine which laws apply to your property. Depending on where the property is located, you may have to evaluate county or city zoning laws. City zoning laws typically override county laws if the property is located within city limits. In addition to zoning ordinances, be sure you're looking at any other laws that might apply to your particular use. For example, if you're thinking about running a daycare out of your home, you may have to comply with health and sanitation codes, safety, or fire codes. Check at the lowest level and work your way up. You'll have to comply with all of them, so it's more efficient to start at the bottom. For example, if you rent and your landlord won't approve of your use, it doesn't matter whether it's permitted under city zoning regulations. Particularly if you're thinking about starting a home-based business, be aware that using your home for a commercial purpose may subject you to other commercial regulations that don't typically apply to residences. Most states allow certain home-based businesses, although the zoning laws may restrict the number of employees you can have or whether clients or customers can come to your home. The Small Business Association has a list of the permits and licenses required to operate a home-based business in each state at https://www.sba.gov/content/what-state-licenses-and-permits-does-your-business-need.
Search city or county ordinances to find out the allowed uses for your property. Many jurisdictions have their entire zoning code available online, or you may have to make a visit to the county or municipal clerk's office, the library, or the city attorney's office. Most cities are organized generally into zoning categories. The category of the property where your house is located is the first piece of information you need. For example, if your neighborhood is a mixed-use residential and commercial zone and you plan to open a home business, you likely don't need to look any further – you're clearly allowed to operate a business in that zone. However, keep in mind things will seldom be that simple. Your house may be located in a mixed-use zone, but there may be further restrictions regarding the type of business you could have or the hours that business could be open. Residential zones also may be subdivided according to the types of dwellings and occupancy levels allowed. For example, if you planned to rent out the apartment over your garage for some extra income, that use might not be allowed if your house is in a single-family residential zone. A zoning ordinance may allow certain types of home-based businesses, but the specificity will differ. Some may be so vague that you can't get much guidance out of it at all, in which case you would have to call someone in the municipal planning department for clarification.
Call your municipal planning or building department. The planning department typically executes the zoning laws for a particular location. Even if you think you understand how the laws work in your area, it's always best to call and get an official opinion regarding the specific property before you rely on it. Keep in mind that zoning laws don't always give a clear answer to questions regarding home businesses or other uses of property. For example, if you work at home but don't have clients or customers coming to your house and aren't increasing traffic in the neighborhood, there likely wouldn't be any problem with your use. At the same time, it can sometimes be a mistake to call attention to your planned use before you've determined whether it is allowed. If you're worried about attracting undue attention to your property, consider getting a friend to call for you, or avoid providing your exact street address to anyone in the office.
Research previous uses of the property. If a prior owner was able to get a variance or exception to the law, you may be able to do the same. However, you also should keep in mind that just because a previous owner put the property to certain uses doesn't mean you will be able to do the same. Your neighbors may have changed, or the regulations may have become more strict since that owner lived on the property. When a zoning law is passed, previous activities typically are excluded. However, if that owner moved away and you bought the property, you must follow all zoning laws that currently apply to that property. If the previous owner was able to get a variance or exception to the same zoning law that's keeping you from doing something you want to do, you may have a better chance of getting a variance yourself.
Consider consulting an attorney. If you have any questions or concerns, you may want to talk to a local land use attorney. If you're interested in buying a house, your real estate agent also will have information on local zoning regulations that may help you. Just make sure you're honest with your agent about what you intend to do with the property you buy. If you have questions about a vaguely worded zoning ordinance or other restriction on your property, an attorney may be able to help you parse the language and determine whether your use would be permitted. A real estate attorney also can familiarize you with local zoning requirements and help you determine your options.
Checking Covenants, Conditions, and Restrictions
Attend a homeowner's association meeting. Going to a meeting will give you a chance to familiarize yourself with the association members and figure out who you can talk to about your situation. If you haven't yet purchased the property, you may want to attend a meeting before you buy to make sure you're comfortable with the procedures and the people in charge. The homeowner's association meeting typically will provide you an opportunity to discuss any issues or questions you have with the officers of the association.
Get a copy of the planned development rules. A development's covenants, convictions, and restrictions (CC&Rs) typically will regulate property use far more strictly than municipal zoning regulations do. If you haven't already purchased the property, make sure you read the CC&Rs carefully before you buy. If you have a planned use for your property that is forbidden by the CC&Rs, it may make more sense for you to find a home someplace else. Keep in mind that you typically must comply with city zoning rules in addition to the CC&Rs, so even if your use isn't explicitly forbidden by the CC&Rs, it still might not be allowed under city zoning regulations.
Contact the homeowner's association. If your property is located in a planned community, land use typically is governed by the homeowner's association rather than the municipal planning department. Keep in mind that homeowner's associations tend to enforce their CC&Rs far more strictly than city or county planning offices do, and it may be more difficult for you to get an exemption. If you live in an area governed by CC&Rs, you should contact the homeowner's association as soon as possible regarding your planned use – ideally long before you've set your plans in motion.
Talk to your neighbors. If the covenants that govern your property prohibit the use you have in mind, your neighbors may be able to help you get an exception. For example, your CC&Rs may prohibit home-based businesses. However, if you know you won't be meeting any clients at your house, and will have few deliveries, these details could help convince your neighbors that your home-based business won't be disruptive to the neighborhood or affect their property values.
Seeking a Variance
Search for forms. Most cities and homeowner's associations have forms you can fill out if you need a variance or exception from the restrictions on your property. Check the application form for times your application can be submitted and deadlines for filing any information or documentation required to be submitted with the application. You may have to attach a metes and bounds description of your property with your application. This description typically will be found on your deed. When seeking a variance, you generally must prove to the zoning board or homeowner's association that the variance is necessary for you and that your proposed use won't change the character of the neighborhood or infringe on your neighbors' property rights.
Request a hearing. When you turn in your form, find out the procedure for requesting a hearing. Public notice of the hearing will be made to your neighbors and others in the general area surrounding the property, and your hearing will be open to the public. You typically will be charged a fee for filing an application or request for a variance. These fees vary widely among cities, counties, and homeowner's associations. If you're concerned about the fee, call ahead of time and find out how much it is before you file your form. The process varies greatly among cities and counties. In some locations, a zoning department officer first makes a decision on your application. Only if he or she denies your request for a variance do you have the opportunity to be heard by the full zoning board. Keep in mind that there may be additional costs as the process continues. All told, you may pay several thousand dollars just applying for a variance – and your application still may be denied.
Gather information. Prepare for your hearing by collecting documents and information about the use you have in mind for your property and its potential impact to your neighborhood. Think about the purpose of the particular restriction or regulation. If you're not sure what purpose was intended, you may want to look back into the regulation's history and find out why it was first proposed. If you can prove your use won't cause the problems the regulation was supposed to prevent, you typically will be more likely to get a variance. If you're seeking an exception from a CC&R, keep in mind that most such rules are created with the purpose of enhancing the value of the property. Thus, your information regarding your planned use should focus on how it won't detract from the value of your home or the homes around it. Typically, the less your use will impact the value of homes and the surrounding neighborhood – including exterior appearance and traffic flow – the greater your chances of having a variance approved.
Get letters from your neighbors. If you're already engaging in a use that violates zoning restrictions, your neighbors might be willing to write letters on your behalf if the use isn't bothering them. If you know your neighbors reasonably well, talk to them about your proposed use for your property. As long as they're okay with it, ask them to write letters for you detailing their approval and how they don't anticipate your use impacting their lives.
Attend your hearing. Your request for a variance will be dismissed unless you appear at your hearing and argue your case. You will be given an opportunity to explain why you need the variance and demonstrate what will happen if you are granted the variance. If you have neighbors who support you, they typically may come to the hearing and testify on your behalf. Anyone who saw the public notice of the hearing and objects to your variance also will be given the opportunity to express their objections to the board.
Appeal a negative decision. If the homeowner's association or zoning board doesn't rule in your favor, you typically can appeal to a higher authority. Typically, a planning or zoning board decision can be appealed to your city council or county board of supervisors. While it can be difficult to get approval on appeal, it will help to have support from your neighbors. Even if the board grants you a variance, anyone opposed to it also typically has the opportunity to appeal the decision. If anyone opposed your variance, they have a specific period of time to file an appeal, which means you may have to wait before you can act on your variance.
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