Obtaining a Variance on Property

A variance is a form of equitable relief allowing the applicant to use his land in an efficient way by bypassing the local zoning laws. A vaiance is likely to be granted for unusual circumstances such as an especially narrow lot or a stream on the property making it especially difficult to comply with the local zoning ordinance.

Two Types of Variances: Area Variances and Use Variances

Area (non-use) variances, the more common variance requested, offer an exception to the property owner encountering difficulties complying with physical requirement issues such as adding a second story to the house or a setback of the building. The second type, a use variance, allows the property owner to use his property in a way that deviates from local zoning standards. It is an exception to the regulations governing the use of the property. For example, a use variance might allow a dentist to place his office in a residential neighborhood.

Process for Approval of a Variance

Though the procedure for variance approval varies with the locality, typically, a property owner submits a request to a zoning enforcement officer or building inspector, who then makes a decision based on a strict reading of the local zoning laws. If the permit is denied, the owner applicant can appeal this decision to the local zoning board of appeals. This board weighs the hardship that the local regulations present for the property owner against the negative impact of the proposed building on the neighborhood. While variance rules differ from one city to the next, the standard is often similar. For an area variance, the property owner must show that the restrictions unreasonably deny a permitted use of the owner's property. For a use variance, the property owner has a more difficult burden to demonstrate that unless granted a variance, he will have no viable use for his property. 

Neighbors Can Influence the City’s Decision

As part of the process, local governments often seek input from other members of the community in determining whether to grant the requested variance. Neighbors can become obstacles for a property owner seeking a variance from the otherwise enforced local zoning ordinance, if those living nearby feel the project may somehow harm their own property values.

Creating a Record to Support the Variance

It is vital that the property owner creates a record to support his request for a variance. This documentation should explain the property’s special circumstances and the unnecessary hardship that would otherwise result if a variance were not approved. For instance, a property owner may need to show there is a specific unique quality to the property – rocks, streams, etc. – that prevents the construction of a normal-sized home. This record may then become part of the “findings” of the official who approves or denies the variance. If the decision on a variance faces a legal challenge, the court would then examine these official findings.

When seeking a variance, a property owner must show a variance is necessary to allow the enjoyment of a reasonable financial return on the property. The owner must also show that the proposed use for the property will not change the spirit of the neighborhood, nor infringe on a neighboring property owner’s rights, use, or enjoyment of his own land.