Variance (land use)
Encyclopedia
A variance is the process by which an applicant can request deviation from the set of rules a municipality applies to land use and land development
, typically a zoning
ordinance, building code
or municipal code
. The manner in which variances are employed can differ greatly depending on the municipality
. A variance may also be known as a standards variance, referring to the development standards contained in code.
regulations. The use and application of variances can differ considerably throughout the great number of municipalities worldwide that regulate land use on this model. The issuance of variances may be very common, or nearly unheard-of in a given municipality. This can depend on a municipality's regulations, built environment and development pattern, and even political climate. One city may view variances as a routine matter, while another city may see variances as highly unusual exceptions to the norm. Community attitudes and political climates can change within a city as well, affecting the manner in which variances are granted even when no changes are made to the regulations governing variances.
Typically, in the United States, the process for a variance must be made available to a landowner upon request, or the municipality may be in danger of committing a regulatory taking
. The variance process has been described as "a constitutional safety valve" to protect the rights of landowners.
An area variance is the most common type. It can be requested by a builder or landowner when an odd configuration of the land, or sometimes the physical improvements (structures) on the land, requires a relaxation of the applicable regulations to avoid denying the landowner the same rights and use of the property enjoyed by owners of neighboring properties. A textbook example would be a house built on an oddly-shaped lot. If the odd shape of the lot makes it onerous for the landowner or builder to comply with the standard building setbacks
specified in the code, a variance could be requested to allow a reduced setback. Another textbook example would be a house built on a sloping lot. If the slope of the lot makes it onerous to comply with the height limit--typically due to the way the municipality's code requires height to be measured--then a variance could be requested for a structure of increased height because of the special conditions on the lot.
A use variance is a variance that authorizes a land use not normally permitted by the zoning ordinance. Such a variance has much in common with a special-use permit
(sometimes known as a conditional use permit). Some municipalities do not offer this process, opting to handle such situations under special use permits instead. Grant of a use variance also can be similar, in effect, to a zone change. This may, in certain cases, be considered spot zoning
, which is prohibited in many jurisdictions.
In either case, the variance request is justified only if special conditions exist on the lot that create a hardship making it too difficult to comply with the code's normal requirements. Likewise, a request for a variance on a normal lot with no special conditions could judiciously be denied. The special conditions or hardship typically must arise from some physical configuration of the lot or its structures. The financial or personal situation of the applicant normally cannot be taken into consideration. Under most codes governing variances, approval of the variance must not result in a public health or safety hazard and must not grant special privilege to the property owner. In other words, when a variance is granted, any other property owner with similar site conditions should be able to obtain a similar variance; this criterion is often addressed by citing precedent
).
Land development
Land development refers to altering the landscape in any number of ways such as:* changing landforms from a natural or semi-natural state for a purpose such as agriculture or housing...
, typically a zoning
Zoning
Zoning is a device of land use planning used by local governments in most developed countries. The word is derived from the practice of designating permitted uses of land based on mapped zones which separate one set of land uses from another...
ordinance, building code
Building code
A building code, or building control, is a set of rules that specify the minimum acceptable level of safety for constructed objects such as buildings and nonbuilding structures. The main purpose of building codes are to protect public health, safety and general welfare as they relate to the...
or municipal code
Municipal code
Municipal code may refer to:*Community Identification Number, a number sequence for the identification of politically independent municipalities or unincorporated areas...
. The manner in which variances are employed can differ greatly depending on the municipality
Municipality
A municipality is essentially an urban administrative division having corporate status and usually powers of self-government. It can also be used to mean the governing body of a municipality. A municipality is a general-purpose administrative subdivision, as opposed to a special-purpose district...
. A variance may also be known as a standards variance, referring to the development standards contained in code.
Description
A variance is an administrative exception to land useLand use
Land use is the human use of land. Land use involves the management and modification of natural environment or wilderness into built environment such as fields, pastures, and settlements. It has also been defined as "the arrangements, activities and inputs people undertake in a certain land cover...
regulations. The use and application of variances can differ considerably throughout the great number of municipalities worldwide that regulate land use on this model. The issuance of variances may be very common, or nearly unheard-of in a given municipality. This can depend on a municipality's regulations, built environment and development pattern, and even political climate. One city may view variances as a routine matter, while another city may see variances as highly unusual exceptions to the norm. Community attitudes and political climates can change within a city as well, affecting the manner in which variances are granted even when no changes are made to the regulations governing variances.
Typically, in the United States, the process for a variance must be made available to a landowner upon request, or the municipality may be in danger of committing a regulatory taking
Regulatory taking
Regulatory taking refers to a situation in which a government regulates a property to such a degree that the regulation effectively amounts to an exercise of the government's eminent domain power without actually divesting the property's owner of title to the property.-United States law:In common...
. The variance process has been described as "a constitutional safety valve" to protect the rights of landowners.
Types
Two broad categories of variances generally are used in the practice of local land use planning: area (or bulk) variances and use variances.An area variance is the most common type. It can be requested by a builder or landowner when an odd configuration of the land, or sometimes the physical improvements (structures) on the land, requires a relaxation of the applicable regulations to avoid denying the landowner the same rights and use of the property enjoyed by owners of neighboring properties. A textbook example would be a house built on an oddly-shaped lot. If the odd shape of the lot makes it onerous for the landowner or builder to comply with the standard building setbacks
Setback (land use)
In land use, a setback is the distance which a building or other structure is set back from a street or road, a river or other stream, a shore or flood plain, or any other place which needs protection. Depending on the jurisdiction, other things like fences, landscaping, septic tanks, and various...
specified in the code, a variance could be requested to allow a reduced setback. Another textbook example would be a house built on a sloping lot. If the slope of the lot makes it onerous to comply with the height limit--typically due to the way the municipality's code requires height to be measured--then a variance could be requested for a structure of increased height because of the special conditions on the lot.
A use variance is a variance that authorizes a land use not normally permitted by the zoning ordinance. Such a variance has much in common with a special-use permit
Special-use permit
A special use permit is a US term, which allows a specific exception to the zoning regulations from a list of acceptable exceptions for a particular parcel of land in a district of a particular zoning character...
(sometimes known as a conditional use permit). Some municipalities do not offer this process, opting to handle such situations under special use permits instead. Grant of a use variance also can be similar, in effect, to a zone change. This may, in certain cases, be considered spot zoning
Spot zoning
Spot zoning is the application of zoning to a specific parcel of land within a larger zoned area when the rezoning is usually at odds with a city's master plan and current zoning restrictions. The rezoning may be for the benefit of a particular owner, and at odds with pre-existing adjacent...
, which is prohibited in many jurisdictions.
In either case, the variance request is justified only if special conditions exist on the lot that create a hardship making it too difficult to comply with the code's normal requirements. Likewise, a request for a variance on a normal lot with no special conditions could judiciously be denied. The special conditions or hardship typically must arise from some physical configuration of the lot or its structures. The financial or personal situation of the applicant normally cannot be taken into consideration. Under most codes governing variances, approval of the variance must not result in a public health or safety hazard and must not grant special privilege to the property owner. In other words, when a variance is granted, any other property owner with similar site conditions should be able to obtain a similar variance; this criterion is often addressed by citing precedent
Precedent
In common law legal systems, a precedent or authority is a principle or rule established in a legal case that a court or other judicial body may apply when deciding subsequent cases with similar issues or facts...
).
See also
- ZoningZoningZoning is a device of land use planning used by local governments in most developed countries. The word is derived from the practice of designating permitted uses of land based on mapped zones which separate one set of land uses from another...
- Spot zoningSpot zoningSpot zoning is the application of zoning to a specific parcel of land within a larger zoned area when the rezoning is usually at odds with a city's master plan and current zoning restrictions. The rezoning may be for the benefit of a particular owner, and at odds with pre-existing adjacent...
- Zoning in the United States (land use)
- Special use permit
- Nonconforming useNonconforming useA type of zoning variance where a parcel of land may be given an exception from current zoning ordinances due to improvements made by a prior owner or before the current zoning ordinances made the desired use non-conforming under local law....
External links
- Schindler's Land Use Page (Michigan State University Extension Land Use Team) http://web1.msue.msu.edu/wexford/LU/index.html
- Land Policy Institute at Michigan State University http://www.landpolicy.msu.edu/index.html