Everything you need to Know About a Zoning Variance

You’re ecstatic because you have inherited a house from a relative. You have so many plans for the tiny home. First being making it larger of course. So you begin to mind map all the room additions you plan on adding such as a gourmet kitchen and a master bedroom and a theater room.  Therefore, you hire a contractor and he comes out to view the property to provide you with a cost estimate based upon the scope of work. 

You patiently wait in front of your new inherited home because today is the day the contractor is to come out. The contractor finally arrives and you have the biggest grin on your face. The contractor steps out of his vehicle and walks over to you with his hand extended; and as you reached out to shake his hand. He says, “I took the liberty to look up the zoning for this property; and first things first, based upon zoning and development standards associated with this property it looks like it is really zoned for multifamily. You perk up and your smile gets wider because it never crossed your mind that maybe you could add a whole another dwelling unit and become a landlord. 

The contractor sees the dollar signs in your eyes and says, “Oh no this property may be zoned for multifamily, but due to its inadequate size, it will not allow for a second dwelling unit or your additions since the additions will encroach into the side and rear yard setbacks… sorry to tell you but you will need to go down to the Planning Department and apply for a variance.”  All you can mouth is, “A what?”

What is a Variance

To put it simply, a variance is a request to deviate from the typical development standards associated with the current zoning requirements of a zoning district. If a variance is granted it allows a property owner to utilize the property in a manner that would not be permitted per the zoning ordinance if a variance was not granted. It is important to note that a variance is not a change in zoning law, but instead a waiver from specific development standards in the zoning ordinance. 

How do you Know if you need a Variance

The way to know if you need a variance is by simply contacting your municipal zoning or planning department if you plan on doing some development on your property that requires erecting a building or structure. You may be thinking what is the difference between a building and a structure and aren’t they the same? Technically, they are not the same although we use them interchangeably in the english vocabulary. A building is a structure that has a roof and walls and stands more or less permanently in one place. A structure on the other hand is used more broadly than building including natural and man-made formations and does not necessarily have walls. For example your house is a building and your fence that surrounds your property is a structure. 

Anytime you are planning on building on adding a structure to your property. It is best practice to contact the zoning or planning department to obtain your zoning district information, and specifically the development standards. The development standards include the following:

Setbacks 

In relation to land use and zoning a setback is the minimum distance which a building or other structure must be set back from a street, roadway, or property line. Setbacks are building restrictions imposed on property owners. Local governments create setbacks through ordinances and Building Codes, usually for reasons of public policy such as safety, privacy, and environmental protection. I like to tell customers that the setback area is a non-buildable area and if they build in that area it is deemed as an encroachment aka violation because they are not complying with municipal law. And we all know what happens when you don’t follow the law you get in trouble. 

Typically there are five setback requirements which are front yard, rear yard, side yard, street side yard and landscape setbacks. Please note that some jurisdictions have additional setbacks that can be very complicated, but for the purposes of this blog we will keep it basic. 

Front Yard Setback

The front yard setback will be located in the front yard of your property and a good indication of the front yard is generally determined by two things: (1) the orientation of the front of your house and (2) the front of your house will be fronted by a street. Now there is an exception to this when your property is located on a corner lot which is fronted by two roadways. If this occurs then you will need to check with your jurisdictions planning department or read the definitions section of the Zoning Ordinance to determine what the jurisdiction considered to be the front yard for a corner lot. For the jurisdictions I have worked for if your property is fronted by two streets then the side of your property line that abuts the street and is the  shortest will be the front yard the other side will be considered your street side yard setback. But as I said you will need to check with your applicable planning department and/or zoning ordinance. 

Okay, but let’s say your property is situated between two houses; is therefore, not the corner lot, the front yard setback will be the minimum distance between the edge of your front property line and where the primary residence/structure is or will be built.

Front Yard Setback Example. 

Rear Yard Setback 

The rear yard property line is the line most opposite of your front yard property line. Thus, the rear yard setback will be the minimum distance between the edge of your rear property line and where the primary residence/structure is or will be built. Please note that for some jurisdictions, if an access easement, street right-of-way line, or alley extends into or through a rear yard, the measurement shall be taken from the nearest point or centerline of the access easement right-of-way line; or alley. To know for sure you will need to contact your local planning department or read the definition section of the zoning ordinance. 

Rear Yard Setback Example

Side Yard Setback

The side yard is the area between the primary residence or structure and the side lot line. It will extend from the front yard to the rear yard. Thus, the side yard setback will be the minimum distance between the edge of your side yard property line and where the primary residence/structure  is or will be built.

Street Side Yard Setback 

The street side yard setback will be taking from the  side lot line of a corner lot that is adjacent to a street. Thus, the street side yard setback will be the minimum distance between the edge of street side yard property line and where the primary residence/structure is or will be built.

Landscape Setback 

The landscape setback is identical to a land use or zoning setback in that it is an area that is unbuildable, however, the difference lies in that in this area landscaping and its appurtenances shall be installed. Reasons for a landscape setback vary, but generally where a non residential use such as a shopping plaza will abut a residential subdivision a landscaping setback will be required to aid in noise pollution, light and glare spilling over into residences backyards and obscene views to and from the commercial use. 

Please note that the only true way to find your property’s property lines are to hire a land surveyor. A land surveyor will be able to survey your property to determine the exact locations of your front, side, street side, and rear property lines so you can measure your setbacks properly. 

Setbacks will be expressed in feet and may look like the front yard setback is 20’, rear yard setback is 25’ and side yard setbacks are 5’ and street side yard setback is 10’ .

Lot Coverage 

Lot Coverage is the size of the footprint(s) of a building(s) and/or structure(s) on a lot divided by the size of the parcel, expressed as a decimal number or percentage. The lot coverage is used in calculating the intensity of use of a parcel for a development project. For example a property that is zoned R1-6 (Urban Residential, 6,000 square foot lot) may have a lot coverage of 40%. Therefore, that means that 40 percent of the lot can be built on. That generally will include anything under a roof. So the primary residence or structure, accessory dwelling units, accessory detached structures which can include ramadas, covered canopies, and gazebos. To get specifics on this contact your local planning department. 

Lot Coverage Example. 

 

Floor Area Ratio (F.A.R.)

F.A.R. is the measurement of a building’s floor area in relation to the size of the lot/parcel that the building is located on. FAR is expressed as a decimal number, and is derived by dividing the total area of the building by the total area of the parcel (building area ÷ lot area). FAR is an effective way to calculate the bulk or mass of building volume on a development site, and is often used in conjunction with other development standards such as building heights, lot coverage and lot area to encourage a community’s desired arrangement and form of development. In this context, higher FARs indicate greater building volume.

FAR Example 

Density 

Density is synonymous with dwelling units per acre; thus, is a development standard that is associated with residential projects/subdivisions. The dwelling units per acre is an estimation of how many residential houses will be permitted in each acre. Each residential zone district will have varying degrees on how many residences will be allowed per acre. For instance in the R1-6 zoning district 10 through 14 dwelling units may be allowed in one acre but in a more rural zone district like RR-45 (Rural Residential, 45,000 square foot lot) 1-3 residences will be allowed in an acre. To know what density your zoning district permits contact your local planning department or read your local zoning ordinance. 

Lot Size 

Lot size is pretty self explanatory right? The answer is yes, it’s the size of the lot in square feet and acres. But many jurisdictions break this down further into lot width and lot depth. The width is the shortest distance between the side yard property lines, between the required front and rear setback lines. The lot depth is the average distance between the front and rear property lines. Lastly the lot size can be expressed in gross and net square feet and acres. Gross lot size includes the property area and right-of-way (ROW), roads, alleys, easements, Net lot size excludes ROW, roads, alleys, and easements and only includes the property buildable area. 

Example Lot Width & Depth

Example of Gross and Net Lot size

Building Height 

The building height is the vertical distance between finished grade and the highest point on the building, provided that the measured elevation does not include fill or berms. Please note that you will have to contact your local planning department  or read your local zoning ordinance to determine if architectural design features such as chimneys are included in the building height. 

If your proposed project makes it to where you will not be in compliance with one of the above aforementioned development standards then a variance request will be required to potentially deviate from their requirements. So for example, let’s say your property has side your setbacks of 10 feet on each side. That means from your property line measuring towards your house nothing can be built in that 10 feet area. If something is built in that area that is called an encroachment and is illegal per the zoning ordinance. As stated in a previous blog (insert blog) the zoning ordinance is law for a municipality, and not complying with it can garner you some consequences such as jail time. 

When do you know you have a Good Case for a Variance

When the strict interpretation of a zoning regulation, such as maintaining the required yard area, cannot be met because of an unusual situation, a Variance may be needed. For example, a property owner of a hillside lot finds that the required front yard building setback prohibits him from building a garage on the only flat part of his yard. All of the neighboring houses are built on flat lots and have garages. A Variance may be able to provide the relief needed from the strict adherence to the zoning standard so that the garage can be built.

What are the Requirements for a Variance

The specific requirements for a variance vary from municipality to municipality. However, for the purposes of this blog I will provide you with the requirements I as a planner have been accustomed to utilizing. First, you must obtain a variance application, fill it out and turn it in along with some documents. Documents includes: 

Project narrative/description – Written document that thoroughly explains your proposal. 

Findings Justification – Findings are a list of reasons, facts, or circumstances that you can make which allow a public hearing body to vote and approve a variance case. Typically findings include the following and can be found in your municipal zoning ordinance.

1. Unique Circumstance. That because of special circumstances applicable to the property, including size, shape, topography, location or surroundings, the strict application of the requirements of the Zoning Ordinance deprives such property of privileges enjoyed by other property in the vicinity and under identical zoning classification. [A Variance can’t be granted for a self-imposed hardship.]
2. No special privilege. That the Variance will not constitute a grant of special privileges inconsistent with the limitations upon other properties in the vicinity and zoning district in which such property is situated. [The Variance is necessary to enjoy a basic property right available to other similarly-zoned properties in the vicinity.]
3. No unauthorized use. That the Variance does not authorize a use or activity which is not otherwise expressly authorized by the zoning regulations for the zoning district in which the subject property is located. [A Variance cannot be granted to the Zoning Ordinance land use regulations.]
4. No adverse impacts. That the Variance will not be detrimental or injurious to property or improvements in the vicinity of the development site, or to the public health, safety, or general welfare.

Site/Plot Plan – A plot plan is an architecture, engineering, and/or landscape architecture plan drawing—diagram which shows the buildings, utility runs, and equipment layout, the position of roads, and other constructions of an existing or proposed project site at a defined scale

Citizen Participation

Another key component to obtaining a variance is conducting and completing citizen participation/citizen engagement/public participation. Citizen participation is a process that allows private individuals, private entities and/or other public municipalities an opportunity to voice their concerns, comments, opposition, and/or agreement to decision making bodies in the hopes of having influence over a proposed project. 

Depending on the jurisdiction, complexity or sensitivity of a project citizen participation can take the form of neighborhood notification letters or neighborhood meetings. Additionally, depending on the jurisdiction those that need to be notified of a variance request can be to the discretion of the assigned planner or it can be written in the zoning ordinance that notification will be sent to all properties located within300 feet of the proposed project site. 

Typically, citizens are alloted 2 weeks from the date of the letter to respond to the request for a variance. Response can be via telephone, email, and/or written letter to the assigned planner or to the applicant. This will ultimately depend on the jurisdiction on how this occurs. Lastly, you will also need to check with the jurisdiction on whether the planner or the applicant is responsible for conducting the citizen participation process. 

Who Makes the decision 

The Board of Adjustments (the name may be different in different states or cities), is responsible for making the final determination to approve, approve with conditions, postpone, or deny a project. The Board of Adjustment is a group of residents that are appointed by Council to hear variance requests and appeals of zoning code interpretations made by the Zoning Administrator/Planning Director. 

For variance requests, the Board may grant variances from, and exceptions to, the strict application of the Zoning Ordinance if a hardship exists as specified in State statutes and the Town/City/County Code. Because the Board acts in a quasi-judicial capacity, Board Members are prohibited from ex parte contact (contact without all parties present) on specific cases before the Board. Therefore, all communication from residents will be initially received by Town staff and provided to the Board and parties. A person aggrieved by a decision of the Board, may appeal the Board’s decision by filing a special action in the applicable County Superior Court- appeals are not to the Town/City/County Council. To add, as stated, above the Board’s decision shall be based on the findings listed above. 

Conclusion 

Before you purchase or take on the responsibility for a piece of property please do your due diligence and ensure that you will be able to do all the modifications and remodels your heart desires without needing a variance. Because it can be a long lengthy process that is not free. However, if you find that you will need a variance it is important to find and have adequate justification for a variance as a justification of you just want it will not fly. Remember a variance is deviating from city law and is not to be taken lightly. 

 

If you found this blog to be helpful please let me know by reading the next blog. If you have any additional comments, concerns, and/or questions please do not hesitate to contact the Friendly Neighborhood Planner.