Chapter 9 Special Uses, Conditional Uses, Variances and Variations

• Library: The Zoning and Land Use Handbook (ABA) (2016 Ed.)

Chapter 9 Special Uses, Conditional Uses, Variances and Variations

A. Distinction between Variation and Special Use

A "variation" is a grant of relief from specific limitations of the zoning ordinance with reference to the structure to be constructed on a given zoning lot. This is to be contrasted with a "special use," which is permission by the municipal authority to use property in a way not ordinarily permitted in a given classification. The Appellate Court of Illinois defined each in Rosenfeld v. Zoning Bd. of Appeals of City of Chicago,¹ explaining:

[A] "special use" is a permission by the Board to an owner to use his property in a manner contrary to the ordinance provided that the intended use is one of those specifically listed in the ordinance and provided that the public convenience will be served by the use, while a variance is a grant of relief to an owner from the literal requirements of the ordinance where literal enforcement would cause him undue hardship.²

The difference between "variation" and "special use" is not always recognized, and the language commonly employed often only adds to the confusion. One particularly confusing phrase used in legislation is "a variation in the nature of a special use."³ This is a non sequitur. The distinction between the two is of great practical significance since the nature of the proof required for a special use differs from that required for a variation. The person who conflates the two can find himself on the short end of an ensuing court action.⁴ In short, "variance" relates to relief from the express requirements of the zoning ordinance,⁵ whereas "special use" relates to a use allowed by the ordinance only under specific circumstances.⁶

The terms "special use" and "conditional use" are used in different zoning ordinances but mean essentially the same thing. Both involve a special use authorized by the existing zoning ordinance.⁷ For example, a special use might be an airport, cemetery, drive-in theater, gun range, group home, wind farm, sand mining, and similar type uses. Ordinances often provide that such uses shall be allowed only upon the condition that the use be approved by the appropriate governmental body.⁸ This may be a Zoning Board of Appeals, a Village Board, or a City Council.⁹

It is also important to distinguish between a variation and a variance, although both terms seem to be used interchangeably at times. The term "variance" is a broader term and refers to a deviation from the literal import or language of an ordinance and is granted only upon a showing of practical difficulties or unnecessary hardship. No such showing is required in regard to the grant of a special use.¹⁰ A "variation," on the other hand, is a grant of relief specifically provided for in the zoning ordinance. Generally, it refers to bulk requirements such as front yard setbacks or side yards or the height or volume of a building. It does not, per se, involve the particular use, but rather it deals specifically with the structure in which the use is housed.

Enabling statutes often set forth criteria for a grant of a variation. For example, the Illinois Enabling Statute provides:

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