What is a zoning variance? It is an exception to the zoning rules that apply to a single lot, usually for a dimensional standard such as a setback or height limit, granted by a local board only when the applicant meets the state’s legal test.
A variance is one of several tools that shape land use, and the wider guide on what is urban planning puts them in context. This article separates variances from conditional use permits, rezoning and appeals, so you can see which route fits a lot and how neighbors can respond.
How a zoning variance works
Zoning variances allow property owners to obtain exceptions to the zoning regulations that apply to a given lot, according to a law firm’s overview of the variance process. The League of Minnesota Cities adds that a variance is generally for a dimensional standard, such as setbacks or height limits. The exception attaches to the circumstances of one lot, so the applicant has to show that a legal test is met. That test comes from state law, not from the local board’s preferences.
In New York, for example, the town of Hyde Park explains that its Zoning Board of Appeals applies the standards of proof in section 267-b of the state Town Law. The board can grant or deny two types of relief there: interpretation and variance.
Area variance
An area variance is permission to build in an otherwise restricted portion of the property, as Hyde Park describes it. The limits involved are setbacks, height or lot coverage. It is the route for an addition that would sit closer to a boundary than the code allows, where the use of the house itself is not in question.
Use variance
A use variance targets what the property is used for rather than where the building sits. Hyde Park applies a four-part test. The property must be incapable of earning a reasonable return on the initial investment, the circumstances must be unique, the use must not change the character of the neighborhood, and the hardship must not be self-created.
Not every state offers this option. In Minnesota, use variances are not generally allowed, and state law bars variances for uses the district does not permit. Before planning a project around a use variance, check whether your state’s law allows one at all.
Hardship, uniqueness and neighborhood character
The hardship standard changes with the state and the type of variance. For an area variance in Hyde Park, the board considers five listed factors, including whether an undesirable change will be produced in the character of the neighborhood. Minnesota uses a statutory three-factor test for “practical difficulties”: reasonableness, uniqueness and essential character. The applicant must satisfy all three, and if any factor is unmet, the city should not grant the variance.
In practice, the strongest applications address each listed factor directly rather than relying on a general account of inconvenience. Hyde Park’s board must also grant the minimum variance necessary to provide relief, so asking for the smallest departure that solves the problem fits the rule rather than working against it.
Variance versus conditional use permit
A variance excuses a lot from a standard in the code. A conditional use permit, which many codes call a special use permit, approves a use through a process the code itself sets out. The practical difference is the question each one answers. With a variance, the question is whether this lot deserves an exception to a rule. With a conditional use permit, the question is whether a use the code contemplates is acceptable on this site.
The two can overlap on a single project. Hyde Park notes that an area variance may be needed alongside subdivision, site plan or special use permit approval, and in that case the request goes directly to the Zoning Board of Appeals without an enforcement officer’s decision first. A site plan or special use application can therefore carry a dimensional variance request with it.
The distinction matters most where use variances are restricted. If a state such as Minnesota generally bars them, a use the district does not permit cannot be solved by a variance. The question then becomes whether the code already lists the use or whether the zoning itself would have to change.
Rezoning
Rezoning changes what a lot may be used for. A law firm’s overview gives the example that changing the permissible use of a lot, from commercial to residential, is known as rezoning. A variance leaves the district’s rules in place and excuses one lot from one of them. Rezoning alters the use the lot is allowed to have.
That makes rezoning the heavier request. It suits a project where the intended use does not fit the district at all, such as a vacant lot that is zoned for one purpose while the surrounding mix suggests another. A variance suits a project where the use is fine and a dimension is the obstacle. Readers who want the policy background to these decisions can read about what is a comprehensive plan.
Choosing the right route
Start by confirming the district and the rule that blocks the project. The guide on how to find zoning of a property covers that first step. Then match the obstacle to the route in the table.
| Route | What it changes | Key condition | Planning use |
|---|---|---|---|
| Area variance | Permission to build in a restricted part of the lot, such as setbacks, height or lot coverage | Board weighs listed factors, including neighborhood character, and grants the minimum necessary | Fits a project whose use is allowed but whose building does not meet a dimensional rule |
| Use variance | Permission for a use the district does not allow | Hyde Park applies a four-part test, including unique circumstances and a hardship that is not self-created | Check state law first, because some states bar it |
| Special (conditional) use permit | Approval of a use through the code’s own special use process | An area variance may be requested alongside it | Fits a use the code already contemplates in the district |
| Rezoning | The permissible use of the lot, such as commercial to residential | The use itself changes, not just one dimension | Fits a project that cannot work under any exception to the current district |
| Appeal | Challenges an enforcement officer’s decision | Notice of Appeal within 60 days of the decision | Time-sensitive, so act on the deadline first |
The table draws on the Hyde Park Zoning Board of Appeals relief page and a law firm’s overview of the variance process.
Notice, paperwork and the public hearing
Variance requests start with an application and supporting plans. Applicants typically post details of the requested variance on the property, which gives neighbors notice. A sign in front of a lot is often the first sign that a case is pending.
Zoning variances are typically the subject of a public hearing before the local zoning board. The hearing is where an applicant presents the request and where neighbors can put their views to the board. Because the board must weigh factors such as whether the change would alter neighborhood character, comments that speak to those factors address what the board is actually deciding. Objections that ignore them give the board little to act on.
Neighbors who want to take part should watch for the posted notice and then prepare for the hearing. If the decision is not one they can accept, the appeal route is the next step.
Appealing a decision
In Hyde Park, a person challenging an enforcement officer’s decision must file a Notice of Appeal with the Zoning Board of Appeals within 60 days of that decision. A missed deadline can close off the route, so note the date as soon as a decision is issued.
Standing is broad. Any person who could be aggrieved by the enforcement officer’s decision may appeal, and municipal officers and boards may as well. The town notes that this can include a neighboring landowner who believes the decision will harm the value of the property. That makes appeal a real option for neighbors as well as applicants, although the deadline and procedure differ by jurisdiction. Check the local code rather than assuming Hyde Park’s process applies elsewhere.
Frequently asked questions
What does it mean that a variance decision is quasi-judicial?
When considering a variance application, a city exercises quasi-judicial authority, according to the League of Minnesota Cities. The board applies a legal standard to the facts of the case rather than deciding on general preference.
Where is a variance decision appealed in Minnesota?
A variance decision there is generally appealable to the city council, per the League of Minnesota Cities. Other states route appeals differently, so confirm the local procedure.
Can a board attach conditions to a variance?
Yes. Hyde Park’s Zoning Board of Appeals may impose reasonable conditions on granting any variance, so an approval can come with requirements the owner must follow.
What else does a zoning board of appeals decide besides variances?
In Hyde Park, the board can grant or deny interpretive relief as well as variances. Interpretation concerns how the code applies, while a variance excuses a lot from a requirement.