Variances Study Outline

A variance is a legally permitted deviation from a set zoning ordinance or land use regulation. It allows a landowner to use their property in a way that differs from the strict application of the zoning code. There are typically two types of variances: use variances, which allow for a use not permitted by zoning laws, and area (or dimensional) variances, which permit a deviation in the dimensions of a property, such as setbacks, height, or lot coverage. Variances are designed to enable reasonable use of property while maintaining the overall purposes of zoning laws, including public welfare and order.

To obtain a variance, the applicant must demonstrate that the strict application of the zoning regulations would cause unnecessary hardship. Courts analyze this through the 'unnecessary hardship' test, which typically consists of showing that: (1) the property cannot yield a reasonable return if used only for the permissible zoning purposes; (2) the hardship is unique to the property; and (3) the variance will not alter the essential character of the neighborhood.

The granting of a variance is not an entitlement but a privilege subject to the discretion of the zoning board of appeals. Typically, the board must also consider whether the variance is in harmony with the general purpose and intent of the zoning ordinance.

The process for obtaining a variance generally involves several stages, starting with the submission of an application to the local zoning board or planning commission. The application must often be accompanied by a detailed statement of reasons for the variance, relevant site plans, and possibly environmental assessments. Once an application is submitted, the regulatory body typically holds a public hearing, allowing interested parties, including neighbors and local government representatives, to voice their opinions or concerns.

After the hearing, the zoning board evaluates the evidence presented against the variance criteria, considers public input, and issues a decision, which may either grant or deny the request. If granted, the board may impose conditions to mitigate impacts on the surrounding community. Applicants and aggrieved parties have the right to appeal the board’s decision to a court if they believe that proper procedures were not followed or that the decision was arbitrary or capricious. Understanding the procedural aspects and timelines is critical for successful variance applications.

While variances provide flexibility in zoning regulations, they are strictly regulated to prevent misuse. One important limitation is the 'self-created hardship' rule, which dictates that individuals cannot claim a variance if the hardship was created by their actions. This rule discourages landowners from manipulating their property's conditions in order to qualify for a variance.

Additionally, variances are generally specific to the current owner and the current use of the property and do not run with the land. This means that if the property is sold, the new owner must obtain a new variance if they wish to continue the use or structure permitted by the original variance. Finally, variances are often temporary, and the zoning board may review or terminate them if the conditions under which they were granted change. This ongoing oversight ensures that variances continue to serve the public interest.