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Issues in Land Use Law & Zoning

Basics of Variances

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Zoning regulations reflect the judgment of the local governing body -- typically based on recommendations from the planning commission -- on what land use regulations are needed to implement the policies set out in the local comprehensive plan. At their core, zoning regulations are designed to promote the statutory goals of protecting and promoting the "health, safety, and welfare" of the community.

We all know that zoning regulations necessarily restrict the use of property in some way. Given this, why do zoning codes include a mechanism for the issuance of variances, authorizing the use of a piece of property in a manner that would otherwise be prohibited by the zoning regulations?

The answer is that variances are essential for legal reasons and for reasons of fairness. Most zoning regulations, by both necessity and practice, employ general language and are uniform in application to an often-diverse collection of properties. A zoning regulation, when strictly applied to a particular property, may have the effect of denying a property owner all reasonable use of his or her property. Without the mechanism of variances, property owners would have no method of seeking relief other than going to the courts.

Variances are divided into two general types: area variances (sometimes called dimensional variances) and use variances. The most common variance is the area variance. Area variances authorize a deviation from the zoning regulations that govern physical location and improvement of a property, for example, setback, building height, lot width, or lot area.

In contrast, a use variance authorizes a use of property that would otherwise be prohibited within the property's zone district. The effect of granting a use variance is often similar to a change in the property's zone district classification. It should be noted that many states prohibit use variances, or authorize localities to prohibit them in their zoning codes. This is in recognition of the fact that:

(1) allowing changes of use through variances can dramatically undermine the stability of neighborhoods, and

(2) changes of use are much better considered by the legislative body through the zoning amendment process, not property-by-property through individual variance requests.

Planning commissioners should carefully review their state law and local ordinances to determine if the granting of use variances is lawful in their jurisdiction. ...

End of excerpt

article continues with discussion of:

1. The Variance Process
2. Standards for Approval of Variances
3. The Effect of a Variance
4. Planning Commission Role in Variances

See also the related article, "Zoning Boards & Planning Commissions"

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