Monday, February 17, 2020

Part I

Although variances pertain to zoning law, when granted they do not constitute changes in the law. Rather, if approved, they are exceptions to zoning law, permitting the use of land in a manner not permitted by the zoning ordinance. In other words, a variance entails the granting of a waiver to deviate from the zoning law.

For this discussion, I am referring to deviations from zoning laws that are granted by local government entities such as zoning boards and zoning boards of appeal; they may also be granted or denied by courts of law. From the applicant’s point of view, a variance is a kind of equitable relief that allows the landholder to use his land differently from that which is permitted by local zoning laws. But in applying for such relief, the applicant must usually demonstrate a substantial hardship and must show that existing zoning regulations impose a practical difficulty to making use of his or her property.

A use variance allows the owner to use his property by deviating from local zoning laws: for example, by putting a business office in a residential neighborhood. An area (non-use) variance is a more commonly requested exception. For example, an owner asks to build a house with exception to the setback laws due to the shape of his property (say, a triangular lot) or because of constraints imposed by the terrain.

Non-conforming use (often referred to as being “grandfathered in” to a zoning code) is a variance of a zoning ordinance, allowing the landholder to use the land in a manner that was permitted prior to the current ordinance. The landowner must demonstrate that he/she used the property continuously in the same way before and after the zoning law was changed. A zoning permit is similar to a variance. It allows property to be used for a purpose other than what is designated by the zoning law as long as the use does not adversely affect the neighborhood. Conditional use permits allow otherwise non-permitted use, and are usually granted at a public hearing, most likely if it is determined that the new use of the property will be in the public interest. Spot zoning is a grant to a specific parcel, with reference to its use, that is different from the classification of other land within a larger zoned area; it is illegal in some parts of the United States because it is incompatible with existing land use, zoning or with the community zoning plan.

Procedures for applying for variances vary with the localities. Here is a common scenario: The property owner submits his/her request to the local building inspector or zoning enforcement officer who makes a determination in accordance with the local zoning laws. If the permit is denied, then the owner, having submitted an application and paid a fee, appeals to the local zoning board, which takes into account any hardships caused by the denial. For a use variance (which is generally harder to convince the board to grant as opposed to an area variance), the owner must show that without the variance he will have no viable use for the property. For an area variance, the owner must show that denial unreasonably denies the owner a permitted use of the property. He/she must show that the variance is essential to enable a reasonable financial return on the property, that the variance will not alter the characteristics of the area, and will not impinge upon a neighbor’s property rights or use or enjoyment of the neighbor’s property. The applicant may also want to hire a local real estate attorney who knows the zoning law and the application process, including the preparation of supporting documents such as maps, and the use of other experts, such as architects. If the variance is denied then the applicant can appeal to the zoning board of appeals, the local town board, and finally to the courts.

The applicant and the various governmental entities are not the only actors in this drama. Notified prior to the hearing are owners whose property adjoins the applicant’s. When there is common property involved, or when there are nearby neighbors, notifications are also issued. Zoning boards take cognizance of the neighbors’ support or objections to the variance request. 

When notified of a variance application, neighbors should immediately learn the local zoning laws and attend the public hearing. If possible, speak with the applicant and try to negotiate a mutually acceptable alteration of the variance request. If this fails and if objections remain, neighbors might present a petition prior to the public hearing. Objections should be based upon such factors as the belief that the variance will alter the character of the neighborhood and/or will negatively impact local property values. The scale of the project, that there is not an economic burden on the applicant large enough to justify the variance, and that the variance will threaten the area’s health and safety are also commonly cited objections.

Should the board grant the variance request then an appeal by the opponents can be made to the zoning board of appeals; if that fails, then the matter may be brought to the county superior court. Note that there is only a very limited amount of time to file—perhaps within as soon as 90 days after the ZBA’s decision. An appeal can be filed only after all administrative remedies have been exhausted. Administrative appeals can include appealing to the city or town council or board of supervisors.

Before a buyer buys a property that he or she believes will need a variance, she/he should ascertain that a variance can be obtained. One way to accomplish this is to obtain an option on the property and then get the variance before buying. It is a foolish buyer who purchases a property, assumes that a variance will be granted, and then pleads hardship when the variance is denied. Also, if you are buying a property, read the legal description of the property in the contract to determine if the word “variance” appears. If so, examine the variance and understand its impact on the way that you intend to use the property.

Finally—and I speak from our neighborhood’s unfortunate experience—do realize that zoning boards are composed of people and that these people can and do make variance decisions based not upon the facts, or upon the merits of the objections of the neighbors, but upon their own political interests based upon the constituents whom they represent, and that these constituents’ interests may be inimical to you and to your neighbors. 

Coming Next: Part II. “Ham” Radio Is Kosher! Amateur radio, the U.S. Constitution, the Federal Communications Commission, local zoning, variances and homeowners’ associations.

By Vivian J. Oleen, Associate Broker, Sopher Realty





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