Navigating the Variance Process

head shot of Diana Bunin Kolev
Diana Bunin Kolev

Most property owners find themselves faced with the variance application process when they are denied a building permit due to noncompliance with some aspect of the local zoning regulations set forth in the applicable zoning ordinance or zoning code. There are many different situations in which the need for a variance may arise. It may be that the deck you want to build is too close to the neighbors (minimum setback), or the fence is too high for the front yard (fence height restriction), or the sunroom you want to add to your house is too big for the property (maximum building coverage). It is often at the point that they receive a denial that property owners learn that they have only sixty (60) days to put together an application for relief to the local zoning board of appeals (“zoning board”), which is the board that has the authority to issue a variance from the requirements of the zoning ordinance. This is where a little forethought and the help of a knowledgeable attorney can make a big difference.

Most variances that we see in our practice are so-called “area variances,” which provide for relief from the “dimensional or physical requirements of the applicable zoning regulations.” Every local zoning ordinance has its own peculiarities and its own dimensional and physical
regulations. Apart from an “area variance,” the so-called “use variance” is required when an
applicant is seeking to use the land “for a purpose which is otherwise not allowed or is prohibited by the applicable zoning regulations.” Typically an application for a “use variance” is not common since the statutory standard to establish entitlement to such a variance is difficult to meet, including financial evidence to show that the applicant is unable to realize a return on the property under existing use regulations.zoning notice

Depending on the municipality, an area variance application requires, at a minimum, a completed form setting forth the details of the application, copies of a survey, and a plan of the proposal.

We often also submit a letter in support of the application on behalf of our clients to address the so-called “balancing test” that the Zoning Board is required to apply in making its determination. The Board must weigh the following factors:

(1) whether an undesirable change will be produced in the character of the neighborhood or a detriment to nearby properties will be created by the granting of the area variance;

(2) whether the benefit sought by the applicant can be achieved by some method, feasible for the applicant to pursue, other than an area variance;

(3) whether the requested area variance is substantial;

(4) whether the proposed variance will have an adverse effect or impact on the physical or
environmental conditions in the neighborhood or district; and

(5) whether the alleged difficulty was self-created, which consideration shall be relevant to the decision of the board of appeals, but shall not necessarily preclude the granting of the area variance.

Once an application is submitted, a public hearing before the zoning board is scheduled and the applicant must formally notify neighbors within a certain number of feet of the property as specified by the zoning ordinance (i.e. 500 feet). Appearing before the zoning board alone may be nerve wrecking, and is usually not advisable if the application is technically complex or where there is substantial opposition from neighbors.

Since the time frame is tight, we usually advise our clients to get on top of the variance process early, before the building permit is denied and the 60 day clock starts ticking. In other words, it may make sense first to reach out to the Building Inspector, who will typically be willing to advise informally whether a project complies with zoning regulations, or if a variance would be required. This gives you time to obtain a survey and any architectural or engineering plans. You could also reach out to your neighbors to explain your plans in hopes of garnering support for your application and avoiding confrontation. In this way, you can begin the process of preparing the pieces of the application before the formal permit denial is issued. Taking these steps, and retaining a land use and zoning attorney to oversee the process and appear on your behalf may increase your chance of success before the zoning board.

Notably, in the event the zoning board denies your application for a variance, the law provides an aggrieved property owner with only thirty (30) days within which to commence special proceeding known as an “Article 78 proceeding” to challenge the zoning board determination in court based on the record presented to the board. While this is often an expensive undertaking, it may be a viable option for some property owners.