Successful arguments of hardship for a zoning variance

Many restaurant owners find themselves needing to apply to the Town or City for a variance from a zoning law or code provision. For example, a local zoning code may restrict the installation of a sign or require setbacks that are not practical given the geography and layout of the parcel and its structures. A restaurant owner wanting to install a sign would then need to seek a variance, which would make him exempt from the code and let him post the sign.

What is zoning? The primary purpose of zoning is to segregate uses that are thought to be incompatible. In practice, zoning is used to prevent new development from interfering with existing residents and businesses and to preserve the “character” of a community. Zoning is commonly controlled by local governments such as town, cities or villages. The municipality adopts a zoning code which sets forth what uses are allowed in certain areas and other guidelines and restrictions that are designed to develop some conformity in the neighborhood and preserve the property values.

If a business wants to do something that is not in conformity with the zoning code, it can apply for a variance. A variance is like a permitted exception to the general rules set forth in the zoning law. To get the desired exception (variance), the applicant applies to the zoning board of appeals.

These proceedings can be stressful, especially because of the additional cost and delay to the project. Typical zoning proceedings take one to six months for final approvals. Costs range from hundreds to thousands of dollars for the application fees and professional assistance that may be necessary from architects, engineers, surveyors and attorneys. They can also be daunting for those who are unfamiliar with the process. In this blog article, we will explore one of the factors that must be shown in order to be granted a variance and some potential arguments that an applicant can make to successfully be granted the desired variance.

One of the factors that must be shown by the applicant is hardship. Many applicants are confused because hardship refers to the land itself, and not to the personal circumstances of the applicant or owner. So what does hardship mean and how do you go about making a showing of hardship such that you can be granted a variance?

Arguments that tend to be successful include the following:

  1. That the particular physical surroundings, shape or topographical condition of the specific property involved would bring particular hardship upon the owner (not just a mere inconvenience), if the strict letter of the zoning regulation were to be carried out;
  2. That the conditions upon which the petition for variance relates would not be applicable generally to other property within the same zoning district;
  3. That the purpose of the variance is not based exclusively upon a desire to make more money out of the property;
  4. That the alleged difficulty or particular hardship has not been created by any person presently having an interest in the property or by the applicant;
  5. That the granting of the variance will not be detrimental to the public welfare or injurious to other property or improvements in the neighborhood in which the property is located;
  6. That the proposed variance will not:
    1. Impair an adequate supply of light and air to adjacent property;
    2. Substantially increase the hazard from fire or other dangers to said property or adjacent property;
    3. Otherwise impair the public health, safety, comfort, morals or general welfare of the inhabitants of the Town/City;
    4. Diminish or impair property values within the neighborhood;
    5. Unduly increase traffic congestion in the public streets and highways;
    6. Create a nuisance; or
    7. Result in an increase in public expenditures.
  7. That the variance requesting is the minimum variance that will make possible the reasonable use of the land, building or structure.

The character and amount of evidence needed will vary between jurisdictions. It is recommended that you speak with the building department or the municipality’s planning and zoning personnel for guidance on what should be submitted. In our experience, the most difficult part is the financial evidence. Many applicants feel the process is invasive when tax returns, leases and other personal information become a matter of public record. Applicants also complain if the jurisdiction requires professional costly valuations for hypothetical scenerios. Oftentimes, an experienced professional can find alternate evidence to submit in lieu of the requested supporting documents. Many applicants are able to apply for a variance and represent themselves at public hearings without the aid of an attorney. For some complex situations, however, you may find it necessary or desirable to have an attorney assist you in the variance process.