• Before You Acquire or Lease That Property, Do You Need a Special Exception or Special Use Permit?
  • April 16, 2015 | Author: Jonathan D. Puvak
  • Law Firm: Gentry Locke Rakes & Moore, LLP - Roanoke Office
  • As a potential buyer or tenant of real estate, there a number of items that are readily apparent and discernible when you visit a new piece of property or an existing building, such as the location, curb appeal, or price, but the need for a special exception is often overlooked until much later in the process. A “special exception” means a special use that is not permitted in the current zoning district and requires approval by the governing body of the jurisdiction where the property is located.

    While sometimes overlooked, a prudent buyer or tenant should be sure to verify the need for approval of a special exception before signing on the “dotted line” of a purchase contract or lease.

    To determine the need for a special exception, the answer depends on the intended use of the land or building and the zoning ordinance for county, city, or town in which the property is located. Although the name of the approval (e.g., special exception or special use permit) may vary from county to county or city to city, the general concept of a special exception is the same. All Virginia localities are permitted to adopt zoning ordinances to regulate the use of land, buildings, structures, and other premises, and the governing body of any locality (e.g., Board of Supervisors or City Council) has the right to make some uses of land or buildings subject to a special exception. If a zoning ordinance stipulates that a proposed use of land or building, say for example, a car wash, is a special use, then the owner, contract purchaser, or potential tenant would be required to obtain the approval of a special use permit from the governing body before the car wash could legally operate. In order to obtain the special use permit, the applicant often needs to file an application, submit a filing fee, prepare supporting materials and drawings, and present the application at one or more public hearings before the governing body. Also, the special use permit application process often requires that an application be reviewed at a public hearing by a planning commission appointed by the governing body, with the planning commission issuing a recommendation of approval or denial to the governing body. All public hearings require notice to adjacent landowners and potentially affected landowners or tenants are given the opportunity at the public hearing to provide comments on the application to the planning commission and the governing body. Further, the governing body has the authority to place specific limits or conditions on the special use permit which could further restrict the intended operation.

    If not anticipated, the additional time, expense, and uncertainty of approval of a special exception could result in a significant post-closing problem for a potential buyer or tenant. If identified early in the acquisition or lease processes, a potential buyer or tenant can agree upon terms that address the need for a special exception and avoid the unwanted surprises.