Variance

What is a Variance?

A variance is a form of relief that is granted when the application of the zoning regulations results in “peculiar or unusual practical difficulties” to a property owner. These are minor changes, not overall classification of zoning changes.  Example cases where variances would be the tool of choice:

• The setback provisions on a storage shed
• Height restrictions to install a wind turbine

Relief:

The Zoning Board will grant a variance from the applicable zoning regulations by relaxing the standard which has caused the “peculiar or unusual practical difficulties”.

Examples of the zoning standards that may be altered are minimum front, rear, and side yard setbacks, and height requirements.

The Board strictly applies the requirements for a variance because a variance changes the development standards that all other property owners must follow.

Burden of Proof:

An applicant for a variance must prove that:

• There are specific situations or conditions that are peculiar to the property which make it unique or peculiar from neighboring properties.
• Uniqueness for zoning purposes requires that subject property have an inherent characteristic that is not shared by neighboring properties such as:
  • Shape(narrowness, shallowness
  • Topography
  • Historic significance
  • Environmental features
• The requested variance is not detrimental to neighboring properties.

In your Application:

You must state the SPECIFIC PROVISION of the zoning ordinance for which you are requesting a variance.

Describe EXACTLY HOW, and TO WHAT EXTENT your request will DIFFER from the REQUIREMENTS of the ordinance.

Your application must clearly show that your property has UNIQUE CONDITIONS and CIRCUMSTANCES which separate it from other typical properties with the same zoning; and explain how these unique conditions and circumstances make it UNREASONABLE or UNFAIR to apply the STANDARD ordinance requirements to YOUR property, unlike the way they are applied to all other properties. You must describe the CONDITIONS and CIRCUMSTANCES which are UNIQUE to your property and situation.

Basic Rules:

• The location of a house on the property which restricts the buildable area on the property is not a factor which will be considered in the decision on whether to grant or deny.
• The “practical difficulty” must result from the application of zoning standards, not from the action or inaction of the property owner.
• The Zoning Board can establish conditions to lessen the effects of a variance on a neighboring property and the community.
• Personal circumstances are not a basis for consideration of whether to grant or deny a requested variance.

Expiration of Granted Request:

ZONING BOARD RULES OF PROCEDURE, Section 7.1 Any special exception or variance granted or authorized by the Board shall authorize the issuance of a building permit and/or a Certificate of Occupancy, as the case may be, for a period of one year from the date of the favorable action of the Board unless said Board shall have in its action approved a different period of time and has so shown such specific period of time in the minutes of its action. If the building permit and/or Certificate of Occupancy shall not have been applied for within said one year period or such extended period as the Board may have specifically granted, then the special exception or variance shall be deemed to have been waived and all rights thereunder terminated. All applications for a request which have been denied shall be deemed to be denied with prejudice unless stated otherwise in the Board’s written decision.

Your Right to Appeal the Zoning Board’s Decision:

LOCAL GOVERNMENT CODE, Section 211.011 Any of the following persons may present to a court of record a verified petition stating that the decision of the board of adjustment is illegal in whole or in part and specifying the grounds of the illegality: (1) a person aggrieved by a decision of the board; (2) a taxpayer; or (3) an officer, department, board, or bureau of the municipality. The petition must be presented within ten days after the date the decision is filed in the board’s office.