Zoning Variances Offer Relief Under Unique Circumstances

weird triangular shaped building, a unique circumstance that may justify a variance

Last Updated: August 9, 2020

Zoning variances are exceptions to the zoning ordinance (law). According to sound theory, 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 triangle shaped lot that you see illustrated on this page. The owner of the triangular lot literally cannot maintain the front yard, two side yards, and rear yard setbacks as required by the ordinance. Thus that owner would apply for an exception.

In another instance, a home owner might need a variance because he met the height restriction in his zoning district 40 years ago, but now a property maintenance code requires him to rebuild his crumbling chimney to a taller height for safety reasons, causing him to exceed the height limit. To understand this more complex example, be aware that whenever a building permit is required, zoning compliance also is checked. The new chimney would require a building permit in many jurisdictions.

Variances usually are granted by a separate board that does not include members of 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. In a few municipalities, city staff may be empowered to conduct hearings and grant or deny the variance application.

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. Planning commissioners should examine the record of variances granted periodically; if there is a recurring pattern, perhaps the ordinance needs to be changed.

If you live in a town or city that routinely grants variances just because a likable property owner asked, you can quickly undo all of the good community development work that you and your group have been doing over a number of years. Your efforts at promoting good design might be in jeopardy if people start successfully pleading inconvenience, financial burden, vague notions of possible property value decline, and lack of awareness of the requirements as the basis for a variance. Neighborhoods should do all they can to inspire strict adherence to the "unique hardship" test and any other zoning ordinance criteria for granting these variances, sometimes called exceptions or special exceptions.


How the Board of Adjustment Decides in Practice

Just as rezoning requires one or more public hearings, almost always the board that acts on variances is required by the zoning law to hold a public hearing or at least to provide an opportunity for public input. Usually the ordinances will require that a notice of the proposed exception be posted on the property and that nearby property owners be notified of the hearing by letter.

Like other official actions concerning city planning, beware of issues such as improper notification of a proposed zoning variance; the "procedural due process," as it would be called, must be present. A board of zoning appeals that wants to do a great job would take advantage of the public hearing to ask questions that neighbors might be able to address, but unlike a city council, the board of appeals should not take public sentiment as such into account.

In a well-run planning office, the legal criteria for granting a variance, which are spelled out in the zoning ordinance, should be addressed one by one in a written staff report that then is translated into findings of fact by the board of adjustment.


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 in the physical characteristics of land or the actual method of conducting 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. (See more in our answer to three different site visitor questions, with quite different sets of facts about objection to a neighbor's variance, and the "how to" of opposing a variance or stopping one.)

However, if your neighbor's property really does have a circumstance that is unique to that property, the board of adjustment has no obligation at all to take neighborhood opinion into account. The board's obligation is to the spirit of the zoning ordinance.

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. If zoning has value, appointed boards of adjustment should not give out permission to evade the zoning regulations too freely.


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