When unusual circumstances make it difficult for a property owner to comply with local zoning laws, cities and counties may grant what are known as variances to allow property owners to circumvent the traditional zoning laws in an area. A variance is a form of equitable relief that allows a property owner to bypass local zoning laws so they can use their land in the most efficient manner possible. Examples of unusual circumstances that would merit a variance being granted might include an especially narrow lot or having a stream on the property.
There are two types of variances. The first type, a use variance, allows property owners to use their property in a way that deviates from local zoning standards. For example, a use variance might allow a dentist to place their office in the midst of a residential neighborhood where they would otherwise not be permitted to operate. The second type of variance is known as an area variance. Area variances offer an exception for property owners who encounter difficulties complying with physical building requirements. An area variance might allow a family living on an unusually narrow lot to surpass local zoning height restrictions and add a second story to their home.
The procedure for variance approval depends on the locality, but typically, a property owner submits a request to a zoning enforcement officer or building inspector who will make a decision based on a strict reading of the local zoning laws. If the permit is denied, a property owner can appeal this decision to the local zoning board of appeals. The zoning board of appeals must weigh the hardships that the local regulations present for the property owner against the negative impact of the proposed building on the neighborhood. While variance rules will 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 her of a permitted use of her property. For a use variance, the standard is more rigid: the property owner must show that unless she is granted a variance, she will have no viable use of her property.
As a general rule, no basis will exist for granting a variance when the circumstances of the site at issue cannot be distinguished from those on surrounding lots. Thus, it’s not unusual for local governments to seek input from other people living near the property at a public hearing. Neighbors could become obstacles for a property owner seeking a variance if they feel the project may somehow harm their own property value, as local governments are often sensitive to such issues.
Variances also should not be viewed as a way to get ahead of other property owners. Conditions will be imposed on variances as necessary to avoid granting a property owner special privileges. A variance does not change the zoning laws, so only those uses permitted generally by the local zoning laws are allowed.
When seeking a variance, it is vital that property owners create a record to support their request. This documentation should explain the property’s special circumstances and the unnecessary hardship that would result from these circumstances if a variance were not approved. For instance, a property owner may have to show that 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 that either approves or denies the variance. If the decision on a variance faced a legal challenge, the court would examine the official findings.
When seeking a variance, a property owner must show that because they face a unique set of circumstances, a variance is necessary to allow them to enjoy a reasonable financial return on their property. Property owners 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 their own land. Some local governments are harder to deal with on these issues than others, so having an attorney who is familiar with the local zoning laws can be a major help in getting your variance request approved. Contact an experienced real estate attorney today.