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Don't Like Your Zoning? Get a Variance!

The existence of rules creates the need for exceptions. A variance is an exception to the rules contained in the zoning code. Because the zoning code is rigid and cannot take into consideration the specific attributes of each and every parcel of real property, variances are available to do justice in cases where the strict application of the rules would be unfair or inappropriate.

The Board of Adjustment normally grants variances. However, in some larger cities, a zoning administrator grants variances, with appeals being decided by the Board of Adjustment.

Use Variances
The typical municipal or county zoning ordinance contains thousands of rules, both broad and specific, restricting what can be done with real property. Some of these rules limit the use of the property, depending on the zoning category. For example, some property is zoned for residential uses, other property is zoned for commercial uses, and so on. Exceptions to rules governing the use of the property are referred to as "use variances."

Area Variances
Other parts of the zoning code regulate such items as setbacks, heights, minimum lot sizes, parking requirements, and so on. Exceptions to these rules are referred to as "area variances."

There is a difference of opinion as to whether relief from a density limitation requires a "use variance" or an "area variance." On the one hand, density limitations would appear quite similar to such things as setbacks, height limitations, and lot coverage limitations, all of which are clearly area variances. On the other hand, increasing density is almost the same as changing the zoning to a higher zoning category, because one of the main differences between zoning categories is density.

The distinction between use variances and area variances is important, because most zoning codes allow the Board of Adjustment to grant area variances, but prohibit them from granting use variances.

Requirements For A Variance
In most jurisdictions, a variance may be granted where the strict application of the zoning ordinance will deprive the property of the privileges enjoyed by other property with the same zoning because of special circumstances or unusual conditions. These special circumstances may include such things as the size, shape, topography, or location of the property or its surroundings.

As an example, a variance might be granted reducing the side yard setback if a lot is unusually narrow. This would be a typical area variance.

Self-Imposed Hardship
Variances cannot be granted if the special condition is self-imposed. For example, if a property owner sells off part of his lot, he cannot later get a variance from the side yard setback on grounds that the lot is too narrow, because he created the problem himself by selling off part of his lot. However, if the lot is too narrow because the city condemned part of it to widen the street, a variance would be available.

Specific Jurisdictions
Each jurisdiction has its own particular requirements for obtaining a variance, although they all generally follow the criteria described above. A typical zoning code would require the property owner to meet the following four tests to qualify for a variance:

  1. There must be special circumstances or conditions affecting the property that do not apply to other properties in the zoning district.
  2. The owner must not have created the special circumstances.
  3. The variance must be necessary for the preservation and enjoyment of substantial property rights.
  4. The variance will not be materially detrimental to the neighborhood or to the public welfare in general.

The specific requirements in a particular jurisdiction can be determined by checking the zoning code.

If there is something special or unusual about your property that makes it difficult to comply with the existing zoning, you may wish to consider applying for a variance. However, variances are not available to change the use of the property or in cases in which the property owner created the problem.

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