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.

Case Studies: Obtaining a Variance on Property

Case Study 1: Overcoming Physical Requirement Issues

Mr. Anderson sought a variance for his property to add a second story to his house. Due to the local zoning laws, the height restriction posed a challenge for him. He submitted a request to the zoning enforcement officer, who initially denied the permit.

Mr. Anderson then appealed this decision to the local zoning board of appeals. By demonstrating that the height restriction unreasonably denied a permitted use of his property and providing evidence of the unique circumstances, such as the narrowness of his lot, Mr. Anderson successfully obtained the variance.

Case Study 2: Allowing a Non-Residential Use in a Residential Neighborhood

Mrs. Ramirez, a dentist, wanted to establish her dental office in a residential neighborhood. However, the local zoning standards strictly prohibited non-residential use in that area. To pursue her business venture, Mrs. Ramirez applied for a use variance.

She had to show that without the variance, she would have no viable use for her property. Additionally, she needed to prove that the proposed dental office would not significantly impact the spirit of the neighborhood or infringe on the rights and enjoyment of neighboring property owners. After presenting a compelling case to the zoning board of appeals, Mrs. Ramirez obtained the use variance she needed.

Case Study 3: Overcoming Unique Property Constraints

Mr. Thompson owned a property that had a stream running through it, making it particularly challenging to comply with the local zoning ordinance. He wanted to construct a residential building on the site but was unable to meet the setback requirements due to the stream’s location. Mr. Thompson submitted a variance request, emphasizing the unique qualities of his property and the unnecessary hardship he would face if the variance were not granted.

He provided evidence demonstrating that the stream limited the construction options and prevented the development of a normal-sized home. By highlighting the specific circumstances and showing that the variance was necessary for a reasonable financial return on his property, Mr. Thompson successfully obtained the variance, allowing him to proceed with his residential project.