Special Use Permits and Variances in Real Estate Development: Key Differences, Approval Process, Risk Mitigation

This CLE webinar will provide a comprehensive overview of how to obtain variances and special use permits in connection with real estate development. The program will focus on key differences, when each should be requested, and how to navigate the administrative process and the hearings that are almost always required. Best practices will be identified to maximize success in any associated litigation.

In real estate development, not every project will be able to comply with the municipality's zoning ordinances. Therefore, relief in the form of a use or area variance must be sought. Separately, there are instances when zoning designates certain uses as special permitted, requiring a special use permit (also a special exception or conditional use permit) to be issued by a municipal board in order for such a use to be developed.

Often, variances are sought because the physical characteristics of the real property limit a site's development and a request to deviate from what is mandated by the applicable zoning must be sought. For example, an oddly shaped lot may not allow for the minimum setback required by the zoning and an area variance would need to be requested to enable the lot to be buildable. If no reasonably economically productive use of property can be undertaken due to no fault of the property owner, then a use variance would be sought to enable the property to be productively developed. For example, if residentially zoned property cannot be developed for residential use, then a use variance would be sought to allow non-residential development.

Real estate counsel should understand key differences between special exceptions, area variances, and use variances, under what circumstances to request which type of relief, and the criteria to obtain the relief requested since each varies. Counsel should also know how to navigate the administrative process, including public hearings, and how to create the best administrative record to defend an approval if challenged and to appeal a denial.