Is a variance the same as a rezoning?

No. A variance is an exception to the existing zoning rules for a specific property. A rezoning permanently changes the zoning classification and the underlying law for a broader area.

Does a variance transfer to a new owner?

Yes, generally. A variance is granted to the land, not the specific owner. Once approved, a non-use (dimensional) variance runs with the land in perpetuity.

What is a 'self-created' hardship?

A self-created hardship is a condition caused by the property owner's own actions, such as building a structure before obtaining a required permit or purposely dividing a lot to create a non-conforming parcel. Variances for self-created hardships are usually denied.

What is the Zoning Board of Appeals (ZBA)?

The ZBA (also called the Board of Adjustment) is the appointed, quasi-judicial administrative body in a municipality that reviews variance requests, grants special exceptions, and hears appeals of decisions made by the zoning enforcement officer.

Categories: Court Info

Zoning Variances: Your Guide to Getting Exceptions Approved

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Navigating zoning variances is complex. Learn the difference between use and area variances, the stringent requirements of unnecessary hardship and practical difficulties, and the essential steps to successfully appeal to the Zoning Board of Appeals (ZBA).

Understanding Zoning Variances: A Property Owner’s Essential Guide

Zoning ordinances are the bedrock of community development, regulating everything from building height to lot size and property use. They are designed to protect the health, safety, and welfare of the community and ensure that neighborhoods retain a consistent character. However, what happens when the strict application of these rules creates an unreasonable burden on a specific property? This is where the zoning variance comes into play—a vital legal tool for property owners seeking an official exception to the established zoning code.

A variance is not a permanent change to the zoning law itself (which would require a rezoning) but rather a waiver that permits a landowner to use their property in a way that is otherwise prohibited by the ordinance, granting relief on a case-by-case basis. Gaining one is often a prerequisite for projects like adding a substantial home extension, opening a business in a residential zone, or developing on an irregularly shaped lot.

The Two Core Types of Zoning Variances

Before beginning the application process, it is crucial to identify which of the two primary types of variances applies to your situation:

1. Use Variance (The Hardship Test)

A use variance permits a landowner to use a property for a purpose explicitly forbidden by the zoning district. These are the most difficult to obtain because they fundamentally change the character of the neighborhood and risk being a “special privilege”.

Example: Authorizing a café or a small office building in an area strictly zoned for single-family residential use.
Standard: Must prove unnecessary hardship.

2. Area Variance (The Practical Difficulty Test)

Also known as a dimensional variance, this variance provides relief from physical or dimensional restrictions. It relates to the “how” and “where” you build, not the “what” you use the property for.

Example: Adjusting setback lines, building height restrictions, or minimum lot size requirements.
Standard: Must prove practical difficulties or an “unnecessarily burdensome” restriction.

The Strict Criteria for Variance Approval

The Zoning Board of Appeals (ZBA) holds the discretionary power to grant or deny a variance. They are often considered a “safety valve” to prevent the oppressive operation of zoning laws, but the burden of proof rests entirely on the applicant. Failure to satisfy even one of the required criteria is grounds for denial.

Caution: The Hardship Must Be Unique to the Land

In almost all jurisdictions, the hardship or difficulty must be tied to conditions unique to the property, such as unusual shape, topography (steep slopes), or soil conditions, and not due to the personal circumstances or financial plight of the owner. A hardship is also typically denied if it is deemed self-created, for example, by subdividing a conforming lot to create a non-conforming one.

The Three Universal Standards for Granting a Variance

Standard	Use Variance (Unnecessary Hardship)	Area Variance (Practical Difficulties)
1. Degree of Burden	Must prove the property cannot yield a reasonable return or be put to any reasonable use without the variance.	Compliance with the restriction would unreasonably prevent the use of the property for a permitted purpose or be unnecessarily burdensome.
2. Unique Circumstance	The difficulty must be due to a unique physical feature of the property (e.g., steep slope, odd shape, wetlands) and not one generally shared by other properties in the district.
3. Public Interest	The variance must not cause substantial detriment to the public good or alter the essential character of the neighborhood. The relief granted must be the minimum necessary.

The Variance Application and Appeal Process

The process of obtaining a zoning variance is administrative and typically involves filing a formal petition with the municipal planning or zoning office.

💡 Expert Tip: Pre-Application Review

Many municipalities offer a pre-application review service. Engaging with staff planners informally before filing your official petition can provide valuable recommendations on how to proceed and help you refine your proposal to address potential concerns upfront.

Key Steps in the Process:

Application Submission: File the formal petition, required documents, and fees with the Current Planning office or equivalent zoning authority.
Staff Review and Recommendation: A staff planner reviews the petition, often works with other city departments, and develops a staff report with a recommendation (approval, denial, or other action) for the ZBA.
Public Hearing: The Zoning Board of Appeals (ZBA) will schedule and hold a public hearing on the request. The applicant must present evidence that they meet all the necessary legal criteria. Public notice is required, and neighbors may appear to voice opposition or support.
Decision and Rationale: The ZBA, after the hearing, will vote on the request. They must record the specific reasons for their decision, describing the “exceptional difficulty or unusual hardship” on which their decision is based.

Case Spotlight: Hardship Evolution

While hardship is typically focused on physical conditions, case law, such as Canivan v. Honesdale Borough Zoning Board (2022), illustrates that existing uses or conditions that were once reasonable can change over time. This change in external circumstances can sometimes be used to support the necessary “unnecessary hardship” argument for a variance request.

Appealing a Denial

If your variance request is denied, you typically have the right to appeal the decision. The first step is usually to file an appeal with a higher administrative authority, such as the ZBA itself if the initial decision was made by a lower administrative body, or directly to a local Circuit or Superior Court within a specific timeframe (often 30 days). It is critical to exhaust all administrative remedies before seeking judicial relief, unless the challenge is based on a denial of constitutional rights.

Summary of Key Variance Concepts

A variance is an official, case-by-case exception or waiver to a zoning ordinance, not a change in the zoning law itself.
Use variances allow for a prohibited activity and require proving a high standard of unnecessary hardship.
Area variances modify dimensional rules (setbacks, height) and require proving practical difficulties.
The required hardship or difficulty must stem from a unique physical condition of the property (e.g., shape, slope), not the personal or financial situation of the owner.
The Zoning Board of Appeals (ZBA) is the deciding body, and any relief granted must be the minimum necessary and must not harm the public interest or the essential character of the neighborhood.

The Variance Essentials Card

Navigating the ZBA process is complex and often requires meticulous preparation and strong evidence to meet the high burden of proof. Because a variance runs with the land and affects its future use, it’s wise to consult with a seasoned Legal Expert who specializes in land use and zoning matters. They can help you prepare the strongest possible case, gather the required evidence, and ensure you exhaust all necessary administrative remedies before litigation.

Frequently Asked Questions (FAQ)

Q: Is a variance the same as a rezoning?: A: No. A variance is an exception to the existing zoning rules for a specific property. A rezoning (or zone change) permanently changes the zoning classification and the underlying law for a much broader area.
Q: Does a variance transfer to a new owner?: A: Yes, generally. A variance is granted to the land, not the specific owner. Once approved, a non-use (dimensional) variance runs with the land in perpetuity.
Q: What is a “self-created” hardship?: A: A self-created hardship is a condition caused by the property owner’s own actions, such as building a structure before obtaining a required permit or purposely dividing a lot to create a non-conforming parcel. Variances for self-created hardships are usually denied.
Q: What is the Zoning Board of Appeals (ZBA)?: A: The ZBA (also called the Board of Adjustment) is the appointed, quasi-judicial administrative body in a municipality that reviews variance requests, grants special exceptions, and hears appeals of decisions made by the zoning enforcement officer.

DISCLAIMER: This blog post is for informational purposes only and is based on general principles of U.S. zoning and property law. Zoning ordinances and criteria for variances can vary significantly by state and local municipality. This information does not constitute legal advice, and you should not rely on it as such. Always consult with a qualified Legal Expert in your jurisdiction for advice tailored to your specific situation. This content was generated by an AI assistant.

Successfully obtaining a zoning variance is a testament to careful planning and a thorough understanding of local land use laws. Whether you are seeking a minor area adjustment for a fence or a complex use variance for a business, preparing a strong case that demonstrates unique circumstances and adherence to the public interest is paramount to success.

zoning variance, area variance, use variance, unnecessary hardship, practical difficulties, zoning board of appeals (ZBA), dimensional variance, non-use variance, unique property condition, self-created hardship, zoning ordinance, appeal process, setback requirement, property use, land use regulation, special exception, permit application

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