Variances, rezonings, and nonconformities

Learning objectives

• Distinguish area and use variances and apply the standard tests for granting a variance.
• Explain the difference between legislative and quasi-judicial rezonings, including the Fasano doctrine.
• Recognize spot zoning and distinguish contract zoning from conditional zoning.
• Explain how nonconforming uses, structures, and lots are treated, including amortization and abandonment.
• Describe what makes a development moratorium legally defensible.
• Explain how zoning decisions are appealed and how courts review them.
• Match a request to the right route: variance, conditional use, rezoning or text amendment, or appeal.

Key concepts

Zoning can't anticipate every property. The ordinance therefore provides ways to adjust the rules for specific situations, and ways to handle development that was legal before the rules changed. The exam tests these tools heavily.

Variances

A variance is permission to depart from the ordinance's literal terms because applying them to a particular property would cause undue hardship. Variances are quasi-judicial decisions, usually made by the board of zoning adjustment (appeals) after notice and a hearing. Because the board is acting like a court, members decide on the hearing record and avoid ex parte contacts with the applicant or neighbors (see Communicating with decision-makers).

Two kinds:

• An area (dimensional) variance relaxes a dimensional standard such as a setback, height, lot coverage, or parking requirement. Many states apply a lower standard for these, sometimes called "practical difficulty."
• A use variance allows a use the district doesn't permit. It requires the stricter "unnecessary hardship" standard, and many states and ordinances prohibit use variances entirely, because allowing new uses is a legislative decision better handled by rezoning.

Typical findings required (terms vary by state):

1. The hardship arises from conditions unique to the property, such as an irregular shape, steep topography, or an unusually shallow lot, not from conditions common to the neighborhood.
2. The hardship was not self-created by the owner (buying a lot knowing it's substandard is often treated as self-created, though states differ).
3. Strict application would deny reasonable use of the property. Financial hardship alone, such as the ability to earn more money, isn't enough.
4. The variance won't alter the essential character of the area or harm neighbors or the public.
5. It's the minimum variance necessary to relieve the hardship.

Two more features matter in practice. A variance runs with the land: it stays with the property when it's sold, because it answers a condition of the lot, not a need of the owner. And the board can attach reasonable conditions tied to the variance's effects, such as screening or a cap on an addition's height. Many codes also let staff approve small administrative adjustments (a few inches of setback, for example) without a hearing, which keeps routine requests off the board's agenda.

7 more sections follow in the full lesson.