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.
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."
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.
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.
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:
- There must be special circumstances or conditions affecting
the property that do not apply to other properties in the
- The owner must not have created the special circumstances.
- The variance must be necessary for the preservation and
enjoyment of substantial property rights.
- 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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