Zoning Variances Offer Relief Under Unique Circumstances

Zoning variances are exceptions to the zoning ordinance (law), usually granted by a separate board not including the planning commission or city council. Typically this board is called the zoning board of adjustment, zoning board of appeals, or some similar variant.

Usually their decisions are final, and the only appeal from that group is to a court.

According to sound theory, the zoning ordinance (law) should state that zoning variances should be granted only when a property owner would have a unique and unusual hardship, created by the physical characteristics of the land, if the ordinance is strictly and literally applied in their case.

An example would be a weird triangular shaped lot that you see illustrated on this page.



A classic candidate for a variance might be, for example, the owner of this triangular shaped lot who literally cannot maintain the front yard, two side yards, and rear yard setbacks as required by the ordinance.

A home owner might need a variance because he met the height restriction in his zoning district 40 years ago, but now a building code requires him to rebuild his crumbling chimney to a taller height for safety reasons, causing him to exceed the height limit.

Zoning variances should not be granted for the land use itself. In other words, if hog farms are prohibited uses in the Urban Fringe (UF) district, a person should not be able to buy that land and then claim a unique and unusual hardship because his experience is as a hog farmer and not a vegetable farmer.

Here too, practice has been slipping toward less stringent applications of zoning theory, but be aware that a court might view the use of zoning variances to alter the list of permitted or prohibited land uses in a very bad light. Even if you bamboozle local authorities into granting you a variance, a court might have other ideas.

If the hardship is not unique, and other property owners have the same situation, the theory says, the zoning regulations themselves should be changed rather than having property owners seek exceptions on a case-by-case basis.


How the Board of Adjustment Decides in Practice

However, be aware that all over the U.S., zoning boards of appeals are granting variances every day on matters that are not unique, but where the board simply feels that literal application of the zoning law is unfair, impractical, or damaging to property value. At the worst, the exception is granted simply because someone asks.

We are not condoning the trend, but we mention it to alert readers to the fact that the "unique hardship" test seems to be slipping across the country.


Summary of Zoning Exceptions

In short, there are justified variances, which provide land owners with flexibility where the zoning ordinance has not anticipated every variation of the physical characteristics of land or the actual method of conduct of business in the community. Many others are unjustified.

If you are buying property, definitely don’t regard obtaining a variance as a mere formality, or figure that you surely will prevail if you persevere.

Gain control of the property through an option to buy, but don't close on the sale until you know you have a variance and feel reasonably sure that no opposition parties will be suing the municipality.

If you are a property owner and your next door neighbor seeks a variance you dislike, the odds are in your favor. In fact, if you go to the board of adjustment informed with facts and an understanding of what your zoning ordinance says about the circumstances for granting a variance, you may have a good chance to prevent that variance.

Variances are the only exception-granting mechanism for the typical municipal zoning ordinance. Many ordinances say that variances cannot even be filed for certain provisions of the ordinance, including permitted or prohibited land uses.

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