Scope

• Standards, tests, and time limits are set by state law and each local ordinance. Always verify the municipal code's definitions and the current zoning for the project parcel
• Covers area and use variances, appeals of staff decisions, and nonconforming uses, structures, and lots
• Conditional uses are a separate approval and are in the uses note

Terminology

• Variance: a deviation from a municipality's land use rules, an administrative exception granted by a board or committee
• Area (bulk) variance: relief from dimensional rules such as setbacks or height; the most common type
• Use variance: relief that allows a use the ordinance does not normally permit
• Hardship: a burden from special conditions of the lot, not from the owner's circumstances
• Self-created hardship: hardship caused by the owner's own actions, which many boards do not accept
• Board of zoning appeals (board of adjustment): the body that hears variances and appeals
• Appeal: a request that the board reverse or modify a zoning official's decision or interpretation
• Nonconforming use: a use that was lawful when it began but no longer is allowed because zoning changed
• Nonconforming structure or lot: a building or lot that was lawful but no longer meets dimensional rules
• Grandfathering: informal term for legal protection of a nonconformity
• Amortization: a period after which a nonconforming use must end
• Spot zoning: granting a special use to a single parcel in a way that conflicts with the plan

Requirements

Variances

• A variance is a "constitutional safety valve" that protects landowners' rights; municipalities may need to offer it on request to avoid a regulatory taking
• Area variance: relaxes physical dimension rules such as setbacks or height limits when the lot's shape or slope makes compliance unreasonably burdensome
• Use variance: authorizes a use the ordinance does not allow; it resembles a special-use permit or a zone change, and where prohibited it may be treated as spot zoning
• Standard tests:
  • The hardship arises from special conditions, typically the lot's physical configuration; an ordinary lot can be denied
  • The applicant's financial or personal situation normally cannot be considered
  • Approval creates no public health or safety hazard
  • Approval grants no special privilege; similarly situated owners could obtain similar relief
• Unwarranted variances can lead to spot zoning claims, which most state laws prohibit

Appeals

• A zoning official's decision or interpretation can be appealed to the board of zoning appeals within a time stated in the ordinance
• Decisions of the board are generally reviewed by a court
• In some cities, denied applicants for related approvals, such as historic certificates, appeal to the board of zoning appeals; in others, the only appeal is to court

Nonconforming conditions

• Origin: a use authorized when it began but no longer allowed after zoning changed; secondary suites built before an ordinance are a common example
• Loss by discontinuance: a nonconforming use may end if the owner agrees or if it is not exercised for a set period, often cited as 21 years in many jurisdictions and shorter in many others
• Loss by destruction: in some jurisdictions a structure destroyed beyond a threshold, usually 50 percent, cannot be rebuilt as a nonconforming use; other jurisdictions allow rebuilding within a limited time, and dwellings are usually allowed to be rebuilt
• Replacement limits: local governments often prohibit replacing an older nonconforming mobile home with a newer nonconforming one
• Amortization: some states let a nonconforming use end after a period set by its value; such ordinances are generally upheld unless arbitrary, discriminatory, or unreasonable, and in some states they are unconstitutional
• Expansion and alteration: most ordinances limit enlargement or change of a nonconformity; the specific limits are local

Worked examples

Area variance

A lot is 50 ft wide where the district requires 60 ft, due to a pre-existing platting. The required side setbacks are 7 ft each.

Nonconforming addition

An existing building sits 8 ft from the side lot line where 10 ft is required.

Loss of protection

An illustrative ordinance with a 12-month discontinuance period and a 50 percent destruction threshold.

Coordination

• Pre-application meeting: ask staff whether a variance, a conditional use, an administrative adjustment, or a text amendment is the better path
• Survey and records: prove the lawful existing condition with permits, surveys, utility records, and photos
• Hardship case: document the lot's physical constraints with topography and survey
• Neighbors: notified neighbors can support or oppose; early outreach helps
• Building code: a variance from zoning does not waive building code or fire separation requirements
• Existing buildings: renovation or a change of use may trigger loss of protection

Common issues

• Self-created hardship: buying a lot or drawing a design that cannot comply is generally not hardship
• Financial hardship: cost or lost profit is normally not considered
• Use variance used as a shortcut: a use variance can resemble a rezoning and is harder to win
• Lapsed nonconformity: a use unoccupied beyond the period loses protection
• Expansion limits ignored: additions to nonconforming buildings often need approval
• Missing deadlines: appeal windows are short

Standards

• State zoning enabling act and local ordinance: tests and procedures
• Board rules of procedure: notice, hearing, and decision timelines

Sources

• Wikipedia: Variance (land use), https://en.wikipedia.org/wiki/Variance_(land_use)
• Wikipedia: Nonconforming use, https://en.wikipedia.org/wiki/Nonconforming_use
• Wikipedia: Zoning in the United States, https://en.wikipedia.org/wiki/Zoning_in_the_United_States