Although a property owner is said to have a “bundle of rights” on his property, these rights are limited by three powers of government. These powers are superior to an individual’s property rights because they are necessary for the public welfare. The three powers are: 1) police power, 2) eminent domain and 3) taxation.

Police power is the power vested in a state to adopt and enforce laws and regulations necessary to protect the public health, safety, morals and general welfare. Police power allows government to regulate the way a person uses his property. Planning, zoning, building codes, subdivision regulations and environmental legislation are examples of government’s authority to regulate an owner’s use of private property for the public welfare.

Under the topic of zoning, three concepts that are confusing or often misunderstood by the general public are the matters of 1) nonconforming use, 2) variance and 3) conditional use.

A nonconforming use is a use in existence at the time a zoning ordinance is adopted or amended that does not conform to the current zoning ordinance and is permitted to remain. For example, if an owner lawfully owns and operates a bakery at the time his property is rezoned for single family residential use, the bakery will be allowed to remain. Even though conditional uses are permitted to remain, they are subject to certain provisions that often restrict expanding or extending the use, rebuilding after damage or destruction and continuance of the nonconforming use after abandonment. Ordinances also may require that a nonconforming use be eliminated after a specified period of time.

The variance provides flexibility in an ordinance where a property owner would be unreasonably injured if strict compliance is made to the existing zoning requirements. Private injury to the property owner must far outweigh the benefits of strict enforcement of the zoning. A property owner may attempt to obtain a variance from the local governmental zoning authority where the zoning applies to his particular piece of property (as opposed to the surrounding area) in such a way as to virtually preclude its use, thus causing him undue hardship. A variance permits the owner to build a structure or conduct a use not otherwise permitted. A common example of a variance situation is where the topography of a lot makes it impossible to comply with the normal front and side yard requirements.

Certain factors must usually be present before a variance is granted. The undue hardship suffered by the owner must be that he cannot make any reasonable use of this land, not merely that he could make more money by devoting his land to another use. The hardship cannot be self-created. For example, an owner cannot first build closer to the sidelines of his property than the zoning ordinance allows and then seek a variance. Finally, the proposed new use must not change the essential character of the area in which it is located.

There are situations when a special use is necessary for the community welfare but is not permitted within the applicable zone. Such a use could be a school, hospital, church or cemetery. These uses must be located somewhere, but some control must be exercised over them to limit adverse effects on other properties. Therefore, a common provision in zoning ordinances allows zoning authorities to issue conditional use permits (also called special exception permits) for such special purpose.

Unlike the variance, evidence of unusual hardship in development of a piece of property is not required. The conditional use permit is for the purpose of meeting a special need of the community, based upon evidence that the proposed location will serve this special purpose.

St. George realtor Jim Coleman writes a weekly real estate issues column . He is associate broker and partner/owner of ERA Brokers Consolidated. He specializes in residential, investment and commercial real estate. Questions or column ideas can be directed to him via e-mail at jim@relorep.com. Call (435) 674-0600, or write Jim Coleman, 201 East St. George Blvd., St. George, UT 84770.