To their surprise, they are all turned down. They cannot do the work they had set their hearts on due to a strict reading of the local zoning laws. What is their next step if they want to continue to try to advance their plans? They must apply for a Variance to the local Zoning Board of Appeals.
A Variance is a form of equitable relief allowing the homeowner to apply for an exception to the local zoning laws. There are two types of Variances, Area Variance and Use Variance.
An Area Variance is more common. It asks to by-pass or have created an exception to the town ordinances due to difficulties encountered with complying with physical requirement issues pertaining to their land or building wishes. The homeowner above who wishes to expand his garage was turned down because of lot coverage. It other words, the local zoning ordinance requires that a certain percentage of the lot be uncovered by structures.
Our second homeowner was turned down because his planned shed violated the town’s set back ordinance. That ordinance requires that all structures be at least a certain number of feet from their neighbor’s property line.
Our insurance agent has to request a Use Variance, the second type of Variance. He wants to use his property in a way that deviates from the local zoning standards because he wants to conduct business in a zone classified as residential use only.
In Use cases, the applicant must show that the zoning restriction has caused him unnecessary hardship. In order to prove unnecessary hardship, he must demonstrate:
(1) That he cannot realize a reasonable return evidenced by competent financial evidence;
(2) The hardship is unique to this property and doesn’t apply to a substantial portion of the neighborhood;
(3) The requested variance wouldn’t alter the essential character of the neighborhood; and
(4) The hardship wasn’t self-created.
If the Board of Appeals grants the requested Variance, it would grant the minimum Variance to address the hardship, while preserving and protecting the character of the neighborhood.
In Area cases, the Appeals Board takes into consideration the benefit to the applicant weighed against the detriment to the health, safety and welfare of the neighborhood or community. The Board considers the following criteria:
(1) Whether the granting of the Variance will produce an undesirable change to the character of the neighborhood;
(2) Can the result be achieved by some other method;
(3) Whether the requested Area Variance is substantial;
(4) Whether the Variance will adversely affect the physical or environmental condition in the neighborhood; and
(5) Whether the difficulty was self-created.
As with Use Variances, the Bond will grant the minimum Variance necessary while at the same time protecting the character of the neighborhood.
In both use and area cases, neighbors would be notified of the requested variances. Neighbors will be able to give input and can be an obstacle to the granting of the Variance if those living nearby feel the project may somehow harm their own property value. The board usually gives them a lot of weight.
In conclusion, the homeowners seeking a Variance must jump through many hoops, but with preparation and cooperation can successfully “fight city hall” and obtain their requested Variance, and can complete their project. -JDG