How Do Zoning Variances Work?

A zoning variance is permission from local authorities for a property owner to do something against the standard rules. For example, maybe you want to install a backyard cottage on your property, but that’s not allowed by local regulations.

Or maybe you want permission to create a rain garden, or put up a fence despite local restrictions.

So you go to the zoning board with an application for a variance.

Getting Started: What’s the Process?

To get familiar with the local process, you’ll gather information from your county or township zoning office. But generally, it goes like this:

• You must complete an application. You’ll include all your plans in detail, together with an explanation as to why you need a variance. Check for fees. It usually costs a few hundred dollars to get a zoning variance hearing.

• Once you’ve submitted your package, the board will review your documents, publish notices, and send notices to those around you who might have interests at stake.

• A comment period follows so that the public can express their positions either for or against the deed holder’s application.  These locals may decide to attend your hearing and speak their minds.

• The board hears the case and votes to approve or reject your application. If the application is approved, it will give you a deadline for you to act on the variance.

• The board may stipulate that you will pay for new surveys, consult with professional engineers, seek special-use or building permits, hire experts for engineering and/or traffic studies, and perhaps even commission an environmental impact study (EIS).

• If your submission meets with approval after the process plays out, you may go ahead and use your variance.

• Once you use your variance, you vest it. From that point on, the variance holds, and any future deed holder also holds the variance. Your variance could also be vesting an easement that allows access to space that’s not deeded to you.

Variance approvals sometimes signal a coming trend. For example, if people keep applying for variances to allow more residential units per lot, a town might consider rezoning, or “upzoning.”

Public Interest: Zoning Variances to Create More Housing

Variances can help enable the construction of multiple units on a lot. For example, a property owner could obtain a variance to have a duplex, triplex, or fourplex on a property that allows only single units.

Variances can therefore:

• Allow for more intergenerational housing.

• Help deal with local housing needs.

• Meet needs for housing that’s affordable for the local workforce.

Variances often enable the creation of more units, or more commercial opportunities. Think home-based storage businesses, home-sharing, or the creation of bed-and-breakfast businesses or student housing in private homes. Sometimes, zoning variances turn agricultural properties into residential properties. Any of these changes can draw more people, more traffic, and more pressure on city services.

Officials have to consider potential pressures on local schools, roads, hospitals, police, and emergency response teams. Sometimes, the development of roads and expansion of services leads to yet more applications for variances.

Who assesses the tradeoffs and determines how to handle them? That’s the job of a group of commissioners on the zoning board.

The Hearing: Balancing Rights and Interests 

The zoning board’s hearing process examines the rights and needs of the owner, and foreseeable impacts on others. A deed holder could need a variance to use a residential property as a shop, or build on vacant property. Or a variance could be necessary to resolve out-of-compliance construction. But the variance may also impact other people. The process becomes a balancing test.

Consider an example, based on a real situation. Local zoning regulations set forth a specific number of feet buildings must be from the street. That’s the setback rule. A setback could be critical to meet safety standards or environmental needs. Now, a builder mistakenly builds a home too close to the street. The homeowner wants to keep  the home in place by obtaining a variance. The key factors weighed at the hearing are:

• The applicant’s interests. What kind of financial hardship will fall to a property owner whose application gets turned down? In this example, what are the costs of being forced to tear down or dismantle part of a home to meet the local setback rule? The owner will need to make a robust argument for the variance, while showing that public safety or nearby property values will not be diminished unduly.

• Others’ interests. Would approving a variance be bad for the neighborhood? After all, your neighbors insist, county boards restrict local property uses to maintain the neighborhood character, keep people safe, and uphold local property values.

A public hearing serves to thresh out facts and opinions on both sides.

Protecting Your Rights: Is a Lawyer Needed?

A deed holder usually needs situation-specific legal guidance with the variance application and the public process that follows. Legal expertise can make the difference between a rejection and approval.

Note that zoning variances are serious challenges. Property rights are involved — yours and possibly others. Your title is impacted. And at the end of the day, you’re asking to be treated as an exceptional case. So, adjoining property owners may confront your request with their own lawyer(s).

An attorney can write a variance letter for you, explaining the restriction, your needs, and any potential benefit of your variance (perhaps it supports property values, or will lower your environmental impact). Your lawyer might argue that your variance will cause minimal visual impact, and that your exception doesn’t conflict with the goals of the existing zoning restrictions. 

Lawyers find things you might have missed, and can save you from more trouble later. For instance, if your goal is to install solar equipment, your lawyer will also check state law to be sure the board isn’t infringing on your rights to install solar equipment. A lawyer can point out things like the possible need for an easement to ensure your property keeps access to unobstructed sunlight.

If you have a hard case, a lawyer might delve into constitutional law. For example, your case could involve equal protection under the law, which means a zoning board must treat your request as it would treat similar applications. A lawyer might argue that a denial is arbitrary, and take the matter through an appeal for you.  

Good Luck With Your Application!

Be sure to prepare for any outcome. It’s entirely possible to prepare a strong case, endure the hearing, and get a disappointing rejection.

For the best outcome, a deed holder should speak with a local attorney with experience in zoning matters. Earlier is better. A lawyer who starts at the beginning has the best opportunity to succeed on your behalf.