What Is a Variance in Real Estate? Your Comprehensive Guide

A variance in real estate is an official authorization to deviate from current zoning regulations or building codes. In essence, it’s permission granted by a local government, like a zoning board, to allow a property owner to use their land in a way that wouldn’t otherwise be allowed under existing rules.

Understanding the Nuances of Variances

Variances are not just loopholes; they are carefully considered exceptions. Zoning laws are designed to ensure orderly development and protect community interests, and are there for very good reasons. However, sometimes, due to unique property characteristics or unforeseen circumstances, strict adherence to these rules would create undue hardship for a property owner. This is where the variance steps in, offering a way to achieve a reasonable use of the land without fundamentally undermining the zoning plan.

The Anatomy of a Variance Request

The process of obtaining a variance involves more than just filling out a form. It’s a formal application requiring detailed documentation, justification, and often public hearings. Think of it as presenting a well-argued case to a judge and jury, where the “judge” is the zoning board and the “jury” is the community. You need to demonstrate convincingly that your request is both justified and will not negatively impact the surrounding area.

Here are key elements typically required in a variance request:

• Detailed Site Plan: A visual representation of the property showing the proposed changes and their relation to existing structures and property lines.
• Justification of Hardship: A clear explanation of why strict adherence to zoning regulations creates an undue hardship. This hardship cannot be self-created (e.g., buying a lot knowing it’s too small for your desired house).
• Impact Assessment: An analysis of the potential impact of the variance on neighboring properties, traffic, utilities, and the overall character of the neighborhood.
• Evidence of “Minimum Necessary” Deviation: Demonstrating that the requested variance is the minimum deviation necessary to alleviate the hardship. You can’t ask for the moon; your request must be as modest as possible.
• Community Support (Ideally): Letters of support from neighbors or community organizations can significantly strengthen your case. Conversely, opposition can be a major hurdle.

Types of Variances

Not all variances are created equal. They generally fall into two categories:

• Area Variance: This type allows a property owner to deviate from regulations concerning lot size, setbacks (distances from property lines), building height, or other physical requirements. For example, building a deck closer to the property line than normally allowed.
• Use Variance: This allows a property owner to use the land for a purpose that is not permitted in the zoning district. These are much harder to obtain because they fundamentally alter the character of the zoning and are often viewed with great skepticism. They are far less common than area variances.

FAQs: Demystifying Variances

Here are some frequently asked questions to further illuminate the topic of real estate variances:

1. What is “Undue Hardship” in the context of a variance?

Undue hardship refers to a situation where strict application of zoning regulations deprives the property owner of reasonable use of their land. This is a critical component. It cannot be a self-created hardship (like building a too-big house on a too-small lot), and it must arise from unique physical characteristics of the property, not merely economic inconvenience.

2. How long does it take to get a variance approved?

The timeframe varies significantly depending on the jurisdiction and the complexity of the request. It can range from a few months to over a year, including application processing, public hearings, and potential appeals. Be patient and persistent.

3. What are the chances of getting a variance approved?

Approval is far from guaranteed. Success hinges on demonstrating undue hardship, minimizing negative impact, and garnering community support. Do your homework and present a strong case.

4. Can a variance be revoked?

Yes, variances can be revoked if the property owner violates the conditions attached to the variance or if there is a material misrepresentation in the original application. Always adhere to the terms of the variance.

5. Do variances transfer to new owners?

Generally, variances run with the land, meaning they transfer to new owners. However, it’s crucial to verify this with the local zoning authority. Confirm the variance’s validity before purchasing a property.

6. What happens if I build something without a required variance?

Building without a necessary variance can result in fines, stop-work orders, or even the requirement to tear down the unauthorized structure. Always obtain necessary approvals before starting construction.

7. Is it better to hire a lawyer or consultant to help with a variance application?

While not always mandatory, hiring a land use attorney or consultant with experience in zoning regulations can significantly increase your chances of success. They can navigate the complex process and present your case effectively. Consider professional help, especially for complex cases.

8. How much does it cost to apply for a variance?

Application fees vary by jurisdiction, ranging from a few hundred to several thousand dollars. Additionally, you may incur costs for site surveys, architectural plans, and legal representation. Factor in all potential costs before proceeding.

9. What is the role of public hearings in the variance process?

Public hearings provide an opportunity for the zoning board to gather information from the applicant, neighbors, and the general public regarding the proposed variance. This is your chance to state your case and respond to concerns. Prepare thoroughly for public hearings.

10. What if my variance application is denied?

If your application is denied, you typically have the right to appeal the decision to a higher authority, such as a county court. Understand your appeal rights and deadlines.

11. How do I find out about zoning regulations for my property?

Contact your local planning or zoning department. They can provide information about zoning maps, ordinances, and permit requirements. Knowledge is power: understand the regulations.

12. What is the difference between a variance and a rezoning?

A variance is an exception to existing zoning regulations for a specific property, while rezoning involves changing the zoning classification of a larger area. Rezoning requires a more extensive process and often involves significant community input. Think of a variance as a small exception, while rezoning is a significant change to the rules.

Understanding variances is critical for property owners, developers, and anyone involved in real estate. By grasping the purpose, process, and potential pitfalls of variances, you can navigate the complexities of zoning regulations and maximize the potential of your property while respecting the needs of the community.