WHEN DO I NEED A ZONING VARIANCE?
©2001 by Ira W. Bloom
The Zoning Board of Appeals (ZBA) is set up under state statutes to protect the rights of property owners by granting a "variance," or exception, from the application of the zoning regulations. Variances are not given, however, for any reason. They are limited to a showing of "hardship," a term which has been well-defined through established case law over the years. When would you need a variance? Suppose you were seeking to add an addition to your home on the easterly side of your property. The zoning regulations provide for a 25-feet setback for structures from the property line, but your addition would go within that area. You would then need the ZBA to "vary" the regulations to allow for the addition within the setback. However, to succeed in your application, you must first show the required hardship.
A hardship for purposes of a variance is a condition which must originate in the zoning regulation itself, and it must arise out of the application of the regulation to circumstances or conditions beyond the control of the party involved. Specifically, the law requires a showing of "exceptional difficulty or unusual hardship." The property owner must show that because of some peculiar characteristic of the property, the strict application of the zoning regulations results in an unusual hardship. The characteristic of the property cannot be shared generally by other properties in the zone. In other words, the hardship must be unique or unusual.
Using our example of the proposed addition on the east side, suppose this property had an unusual topography so that an addition on the east side was the only possible option. This would represent the classic hardship situation. The topography of this lot is a condition relating to the land itself; it is unique to this property (let us assume); it is beyond the control of the party involved; and it presents an exceptional difficulty or unusual hardship.
Suppose you requested a variance to build this same addition, but the reason is your need to add a room to house your elderly parents. This would not be a hardship, since this is a reason which is personal in nature and does not relate to the land. Suppose you requested a variance because your lot was particularly small, and it would not be possible to expand without going into the setback. If in fact all lots in your area were similarly small, then "smallness" would not be a unique characteristic justifying the variance, since it is shared by the neighborhood. A variance would not be in order in this example. Financial justifications are also not allowed, so the argument that you need the addition to earn income would not justify a hardship. A self-created hardship—where, for example, the problem is caused by your own actions—is also not legally sufficient.
In sum, a legally sufficient hardship to justify a variance is not easily shown, and in fact only a small percentage of variance applications are legally justifiable. Yet, many variances are actually granted by zoning boards of appeal, particularly when no neighbors are protesting. It is critical when appearing before a ZBA to carefully articulate your hardship to maximize your chances of success.
If you have any questions about this article, please email to ibloom@wsdb.com .
