What Is a Zoning Variance?
A variance is a governmental permission to deviate from the strict requirements of a zoning ordinance in a specific case. Zoning codes regulate land use (residential, commercial, industrial), building setbacks, lot coverage, height limits, and other parameters. When a property's unique characteristics or intended use doesn't fit the standard code requirements, the property owner can apply for a variance rather than a code amendment.
Variances come in two types: use variances (permitting a use not allowed by zoning—generally disfavored and harder to obtain) and area/bulk variances (permitting a deviation from dimensional requirements like setbacks, lot coverage, or height—more commonly granted based on practical difficulties).
How to Win a Variance
Variance standards vary by state, but most require showing: (1) the property has unique physical characteristics (shape, topography, size) not shared by neighboring properties; (2) strict application of the zoning code would cause undue hardship—not just inconvenience; and (3) the variance would not substantially harm neighboring properties or conflict with the comprehensive plan's goals. "Self-created hardship"—buying a small lot knowing the code's restrictions and then claiming hardship—typically defeats a variance application.
Compelling applications include: professional survey showing unique lot dimensions; architect or engineer opinion on why strict compliance is impractical; evidence that neighbors received similar variances; neighbor support letters; and expert testimony if needed. Opposition from neighbors significantly reduces approval chances—early outreach to address concerns is valuable.
Appealing a Zoning Decision
Zoning decisions are appealed to the local Board of Zoning Appeals (BZA) and then to the circuit or superior court. Court review of BZA decisions is typically limited to whether the decision was arbitrary, capricious, or contrary to law—courts do not substitute their judgment for the board's discretion on matters fairly within the board's authority. Procedural errors (inadequate notice, failure to take evidence, biased board members) are the most common grounds for successful court reversal.
Regulatory Takings: When Zoning Goes Too Far
When government zoning regulations eliminate all economically viable use of a property, the Fifth Amendment (and state equivalents) requires the government to pay compensation as if it physically took the property. "Regulatory taking" claims are complex and difficult to win, but they are the right tool when a recent downzoning or use restriction destroys a property's value with no corresponding public benefit.
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Frequently asked questions
How long does a variance application process take?
Variance applications typically take 60–120 days from submission to decision: staff review, public notice publication, neighboring property owner notification, public hearing, and board decision. Some jurisdictions are faster; complex cases or politically controversial applications can take longer. Planning board and BZA meetings are typically monthly, which limits how quickly applications can move.
Can neighbors block my variance application?
Neighbor opposition does not automatically defeat a variance, but it is highly influential. Board members are often elected officials sensitive to neighborhood concerns. A well-organized opposition can tip a borderline case against you. Proactive neighbor outreach—explaining your plans, addressing concerns about privacy, drainage, traffic—often converts opposition to neutrality or support.
What is a nonconforming use and how is it different from a variance?
A nonconforming use is a use or structure that existed lawfully before a zoning change made it non-compliant. Nonconforming uses have vested rights to continue, but they cannot be expanded and in most jurisdictions lose their protection if abandoned or substantially damaged. A variance, by contrast, is a prospective permission granted by the board for a deviation from current code—it doesn't require pre-existing noncompliance.