Avoiding Unnecessary Hardship with Variances - dummies

Avoiding Unnecessary Hardship with Variances

By Alan R. Romero

Administrative exceptions to zoning regulations are called variances. Whereas conditional use permits are available for uses that the zoning ordinance specifically allows when the listed conditions are met, variances permit uses that the zoning ordinance doesn’t allow. Two types of variances exist:

  • The area variance: This variance allows a property owner to depart from otherwise applicable restrictions concerning the height or size of buildings or their location on the property.

    For example, an area variance might allow a house to be built 15 feet from the front of the lot even though the zoning ordinance says houses in that district must be set back at least 20 feet from the front of the lot.

  • The use variance: This variance allows the owner to use the property in a way that would otherwise be prohibited in the zone. For example, a use variance might allow a house in a residential district to be used as a professional office.

Some jurisdictions don’t allow use variances. Those that do allow them are commonly more liberal in granting area variances than use variances.

Although the requirements for granting variances differ among jurisdictions, one common statutory standard is that a variance may be granted when, “owing to special conditions, a literal enforcement of the ordinance will result in unnecessary hardship.” Whether by judicial interpretation of this general statutory phrase or by more specific expression in the ordinance, jurisdictions generally apply the same three basic requirements for granting variances:

  • The owner can’t obtain a reasonable return from the property as zoned.

  • The inability to obtain a reasonable return is the result of unique conditions of that particular property.

  • Granting the variance won’t alter the essential character of the locality.