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| LEGISLATIVE & LEGAL : VARIANCES |
A variance is the authority to use a parcel or structure in a way that would otherwise violate a city ordinance requirement. This authority is granted by an appeals board appointed by the mayor and city council, as dictated by state law and city charter requirements.
In a given city, there may be multiple boards that hear variance requests: the zoning board of appeals, the housing board of appeals, the building board of appeals, the city planning commission, the historic district commission, etc. Variances may only be granted by these boards after a finding is made that the variance request meets certain standards set out in both the ordinance and state law. The appeals boards act as quasi-judicial bodies, and a decision of an appeals board may usually be overturned only through application to the appropriate court as designated by state law.
Some basic variance concepts in both state law and ordinance are that variances are only to be granted when the property owner has a hardship or practical difficulty (based on something physical) making a reasonable use of his or her land impractical or impossible. For instance, if someone has a steep slope that cuts through the middle of a parcel, making it impossible to place a house without violating a setback requirement, the appeals board may determine this is a hardship and grant a variance. Another important concept is that the hardship or difficulty cannot be self-created, such as the situation where someone sold off some property to a neighbor and now claims that the setback requirements should be reduced because of the small size of the parcel.
Zoning variances are usually described as either "use" variances or "non-use" variances. A use variance allows a use that would normally not be allowed in a particular district, such as a commercial use in a residential zone. A nonuse variance is usually dimensional in nature, allowing a building to be built higher than allowed, or closer to a lot line. Generally, once a variance is granted, it goes with the land. This means that the variance will remain valid, even if the property changes hands. Sometimes conditions may be placed on a variance limiting it to a particular situation, and when that situation is discontinued, the variance is no longer valid. The courts have held, however, that variances cannot be limited to a particular duration of time.
As the procedures and requirements for variances may differ substantially between municipalities, it is recommended that you consult a qualified attorney if you have any questions or uncertainty regarding your local practices. |
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