Board of Zoning Appeals

Types of Variance

There are two types of variances the board may grant, each requiring different considerations.

AREA VARIANCE

An Area Variance is the most common as it does not involve a change of use or use of land not permitted in the particular zoning district the property is located in. An Area Variance is normally granted on the basis of a practical difficulty. Common examples of an Area Variance include:

• An oversize residential garage for the size of the lot
• Privacy fence height in excess of allowed
• Location of a garage, house, or a building closer to the lot line than normally permitted, and
• Construction of a single-family dwelling on a prior recorded lot which is smaller than one currently required for new lot creation.

In applications for area variances, the practical difficulty is normally due to the size, shape, or topography of the property; the location of existing structures, or the desire to preserve a large tree or other desirable landscape feature.

The board, in the case of an Area Variance, is required to weigh the requested variance against the following criteria (Duncan v. Village of Middlefield)

• Can the property yield a reasonable return or can there be any beneficial use of the property without the variance?
• Is the variance is substantial?
• Will the essential character of the neighborhood be substantially altered or will adjoining properties suffer a substantial detriment as a result of the variance?
• Will the variance adversely affect the delivery of governmental services (e.g. water, sewer, garbage)?
• Did the property owner purchase the property with knowledge of the zoning restriction?
• Can the property owner’s predicament be precluded through some method other than a variance?
• Would the spirit and intent behind the zoning requirement be observed and substantial justice done by granting the variance?

USE VARIANCE

The Use Variance is seldom granted. A Use Variance may be granted only when an applicant can demonstrate an unnecessary hardship so severe that it would require the use of the land not normally permitted to overcome the hardship. Examples of use variances include:

• Permitting churches in non-residential zoning districts (U.S. Supreme Court rulings dictate such permits in most cases)
• A cellular communications tower in a rural location or on an extremely small parcel that could not be used for any other purpose, and
• Appropriate adaptive re-use of a school or church in a residential district.

In cases of a use variance, the proof of unnecessary hardship is placed on the applicant and the following must be demonstrated:

1. The land in question cannot yield a reasonable return if used only for a purpose allowed in the zone, or as a legal nonconforming use within that zone.
   • The mere fact that the individual owner may suffer financial hardship or the fact that another permitted use may allow the sale of the property for a better price, or permit a larger profit, does not justify the granting of a variance.
   • A showing by dollars and cents proof is required for showing a lack of reasonable return.
   • A showing of present loss is not adequate in establishing a lack of reasonable return. The applicant must demonstrate that the return for each and permitted use under the Ordinance.
2. The plight of the owner is due to unique circumstances and not to general conditions in the neighborhood.
   • A unique circumstance results from sources beyond the control of the individual, must not be shared by others in similar circumstances, and cannot be self-inflicted or financial.
   • Unique circumstances relate only to the property and exist when legal restrictions, the contour of the land, the shape of the lot, or other physical restrictions create unique circumstances not incurred by one’s neighbor.
3. The use sought to be authorized by variance will not alter the essential character of the locality. Any use that would alter or disrupt a neighborhood or district, when such district is in accordance with a comprehensive plan and adopted in the Zoning Regulations, should not be permitted.