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A variance is a requested deviation from the set of rules a municipality applies to land use known as a zoning ordinance, building code or municipal code. In today’s land use approval environment a variance request can be a fatal flaw for something as “insignificant” as a variation from a municipal sign ordinance.
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Purpose
Essentially, variance is an administrative exception to land use regulations. Generally, it is applied when the municipality wants to avoid compensating a landowner for making the landowner render changes to the real property to make it comply with the zoning regulation. Variances are required in the United States in order to prevent a regulatory taking.
To avoid a taking, four factors for a variance include (1) unnecessary hardship, (2) needed for reasonable use, (3) not alter essential character of neighborhood, (4) least intrusive solution.1
An example: suppose a "low density residential" zone requires that a house have a setback (the distance from the edge of the property to the edge of the building) of no less than 100 feet (30 m). If a particular property were only 100 feet (30 m) deep, it would be impossible to build a house on the property, potentially resulting in an unlawful regulatory taking. A variance exempting the property from the setback regulation would allow a house to be built.
Types
An area variance occurs when an odd configuration of the land requires a simple relaxation of the applicable regulations, such as a setback or a minimum floor area.
A use variance is a variance that allows a nonconforming use after the implementation of the zoning regulation or other applicable law. This is more difficult to acquire than an area variance and is open to an attack of spot zoning.
Procedure
Variances are typically only granted after undergoing a statutory review process against specified approval criteria. Although review criteria vary from jurisdiction to jurisdiction, three basic criteria are common to the vast majority of variance ordinances:
- The variance is required due to specific site conditions (property configuration, topography, soil conditions, etc.), which causes unnecessary hardship to the landowner,2
- Granting the variance will not result in a hazard to public health or safety, and,
- Granting the variance will not result in a grant of special privilege to the property owner (in other words, any other property owner with similar site conditions could obtain a similar variance: this criterion is often addressed by citing precedent)
See also
References
External links
- Schindler's Land Use Page (Michigan State University Extension Land Use Team) [1]
- Land Policy Institute at Michigan State University [2]
Wikipedia content modification information:
- This page was last modified on 26 November 2008, at 17:25.
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