variance vs special exemption

[PhiloFarnsworth]

I am doing an appraisal on a residence that is located in a residential zone that allows for in-home businesses as a variance under certain circumstances. The use of the subject was not grandfathered from the previous owner. The subject presently has a combined residence and doctor's office. When the borrower purchased it, he applied to the zoning board for a variance for an in home business. The variance was denied, due to the fact that the use exceeded some of the stated requirements for eligibility. However, the present use was allowed as a special exemption.
It is my opinion that, given that a similar commercial use may not be legal were the property to be sold (the zoning authorities would have to have a special hearing; to be at all possible, the use would have to exactly like the present one) and that the subject is physically usable as a SFR, the H&B is as a residence.
Question: How is the zoning check box on a 1004 to be filled out? Legal, non-conforming(grandfathered)? or Illegal. I would assume the former, but for the "grandfathered" in the description.

 

[Sid Holderly]

In this county a variance would run with the land once granted. (generally effect setbacks or lot size).

A special exception would expire if unused for 6 months for that special purpose and revert back to the previous zoning (in this case likely Residential).

Most in home businesses are allowed without a variance in this area if they do not adversely affect traffic and parking is adequate. (there is a clause describing limitations in the zoning code).

 

[Scott R Marshall]

Your post is a bit confusing but I have appraised some properties with variances, including recently an SFR with an allowable dog kennel.

If, as you described, there is a special exemption, then the current use is legal. Grandfathered use would apply only if the use predated a change in ordinances but was still allowed. As you have a special exemption, I am assuming it is legal but you may need to dig a bit more to find out what that special exemption entails and, as much as you are able, determine whether the current use is "legal" per that special exemption.

Now there may be value in use questions regarding your doctors office that as a residential appraiser you would be hard pressed to determine unless you find that magical comp that also had an operational doctors office with the same type of special exemption. It doesn't change your H&BU as, while legally permissible, it requires approval from the powers that be, leading me to believe that its H&BU is as a single family residence unless your subject is located within an area transitioning to or predominantly commercial, in which case these special exemptions may be quite common.

Hope this helps a bit.

 

[Mark K]

In the original post you first say it was allowed under a variance and then you say its allowed as a special exception. In this area, these are two very different things. Do you know for sure which your is?

In my county a variance can be issued to the property or to the business/owner; some expire upon conveyance, others run with the land.

Also, here, a special exception is legal, an allowed use subject to certain restrictions.

A variance approval is subject to the whims of the hearing board; a special exception use cannot be denied if it meets the restrictions.

In any event, in this area, I'd check the "legal" box but do some 'splaining.

 

[Mike Kennedy]

Does the "Special exemption" transfer on sale or is it cancelled.