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.

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.

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.

Video coming soon

6 more sections follow in the full lesson.

Key terms

• Variance: Permission to depart from the ordinance's literal terms because of hardship unique to a property.
• Area (dimensional) variance: A variance from a dimensional standard.
• Use variance: A variance allowing a use not permitted in the district; prohibited in many states.
• Unnecessary hardship: The standard requiring that strict application would deny reasonable use because of the property's unique conditions.
• Self-created hardship: Hardship caused by the owner's own actions, which usually bars a variance.
• Quasi-judicial rezoning: A site-specific rezoning treated as applying policy, requiring findings and due process (Fasano).
• Spot zoning: Singling out a small parcel for inconsistent zoning mainly to benefit its owner.
• Contract zoning: A bilateral rezoning bargain, generally invalid.
• Conditional zoning: A rezoning with conditions attached, accepted in many states.
• Legal nonconforming use: A use lawfully established before current rules that no longer conforms.
• Amortization: Requiring a nonconforming use to end after a period meant to allow recovery of investment.
• Abandonment: Discontinuing a nonconforming use for a set period, ending the right to resume it.
• Moratorium: A temporary halt on specified development approvals.
• Exhaustion of administrative remedies: The rule that a challenger must use local appeals before going to court.
• Fairly debatable: The deferential standard courts apply to legislative zoning decisions.
• Substantial evidence: The standard for quasi-judicial decisions: enough relevant evidence in the record to support the decision.