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Obtaining a Variance

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Whenever a property owner desires to undertake any construction activity regulated under local zoning regulations,  a zoning permit is normally required.  However, when the property owner cannot meet the local zoning requirements,  the zoning permit must be denied by the zoning inspector. In such event, the applicant for the zoning permit can pursue a “variance” from the zoning code if the applicant does not want to change his plans to conform to the zoning requirements.  Not all zoning requirements make sense for every situation.  That is why zoning codes permit individuals to seek “variances” from the strict application of the zoning code.

For example, in order to preserve some valuable trees on his building lot, the applicant desires to build his home 30’ from his side yard boundary on the side of the proposed house opposite the trees.  However, the zoning code requires a 40’ side yard set- back from the side lot line. The applicant will be denied a zoning permit for his planned home, unless he can obtain a variance to the 40’ requirement.  Normally,  in order to obtain a variance,  the applicant must appeal the denial of the zoning permit to the local Board of Zoning Appeals, usually within a deadline for submitting such appeal.

The local Board of Zoning appeals will then conduct a public hearing in order to permit the applicant to present his arguments as to why a variance should be granted to him.  The date, time, and place for the public hearing must be advertised in a local newspaper and usually adjacent neighbors and in some communities even nearby property owners must get notice of the public hearing.  In this way, interested persons can appear at the public hearing and ask questions about the proposed variance and voice their opposition or support for the variance.  Depending on the nature of the requested variance, there may be many individuals wishing to question or to comment on the request.

Getting a variance is not an easy process.  There are certain legal standards which the applicant must meet in order to be entitled to a variance.  Those legal standards will vary depending upon what type of variance the applicant desires.  In the example above concerning a side yard variance,  the applicant must demonstrate to the zoning Board of Appeals that there are “practical difficulties” involved which justify a variance.  This is the test for any “area” variance and the practical difficulties test involves consideration of several different factors which have been previously identified by the courts.

If, on the other hand,  the applicant wants to conduct a “use” of the property different from what the zoning code permits,  a different legal test is applied to the variance request.  This test is called the “unnecessary hardship” test and under it the applicant must demonstrate essentially that he cannot reasonably economically use the property as it is currently zoned.  For example,  an individual owns a single family home in an area zoned for residential uses only.  However,  several adjacent properties are operated in a commercial fashion because they are grandfathered, or because the zoning of those nearby properties is already commercial, rather than residential.  This applicant might argue that due to the proximity of his home to those businesses, he cannot sell or rent his home for single family use anymore.  In other words, his property is zoned residential, but it cannot reasonably be used for such purposes anymore.  He may therefore be entitled to a “use” variance.

No matter what type of variance is being sought,  it is important for the applicant to present all his relevant supporting evidence to the zoning board of appeals.  The hearing before the zoning board is essentially a “trial.”  While the presentations are rarely as formal as a court trial,  nevertheless the public hearing is usually the one, best opportunity for an applicant to make his case.  It is therefore critical to make a good “record” before the zoning board because if the application for the variance is denied by the board of appeals,  the applicant’s only remedy is to then seek a reversal of the zoning board’s decision by the local common pleas court by way of an appeal.  However,  the common pleas court will only look to the “transcript” of the evidence before the zoning board to reach its decision and will usually not permit the admission of new evidence. (There are exceptions to this rule, but it is rare for additional evidence to be allowed.)   It is vital to have a good “record” from the public hearing to have any hope of getting a court to reverse a zoning board of appeals.  Reversals are tough, but do occur when justified.

The factual and legal complexities involved in successfully pursuing a zoning appeal are significant.  A skilled and experienced zoning lawyer can help navigate the process and increase an applicant’s chances for obtaining a variance.  If you need a zoning variance or other zoning permission,  please contact Thrasher Dinsmore & Dolan to speak with one of our experienced zoning lawyers.  The firm has years of experience representing both applicants and communities in zoning disputes.