Malcolm Rivera
Zoning ordinances are unique in that they apply a uniform set of regulations to properties that differ in terms of topography, access, and existing uses or buildings. A zoning variance is an exemption from a zoning law or code provision. A hardship is a valid reason for a zoning variance. A hardship is an unusual irregularity in a property that makes it uniquely difficult to comply with zoning regulations. It is determined on a case-by-case basis and must be more than a mere inconvenience. The character and amount of evidence needed to prove hardship will vary between jurisdictions.
| Characteristics | Values |
|---|---|
| Unnecessary hardship | The hardship must be more than a mere inconvenience and must be peculiar to the property, not general to the neighborhood or community. |
| Hardship vs. personal circumstances | The hardship must arise from the property itself, not the personal circumstances of the applicant or owner. |
| Applicant's evidence | The applicant must provide competent, substantial, and relevant evidence to convince the decision-making board that the property meets all the statutory standards for a variance. |
| Self-created hardship | The hardship must not be created by the applicant or any person with an interest in the property. |
| Hardship vs. preference | The hardship must not be a result of the applicant's lifestyle or disagreement with the ordinance. |
| Hardship and cost | Cost of compliance may be a factor, but it is not determinative. The applicant must show the substantial and undue nature of the additional cost compared to others subject to the same restriction. |
| Hardship and public welfare | The granting of a variance must not impair public health, safety, comfort, morals, or general welfare. |
| Hardship and public character | The granting of a variance must not be detrimental to the "character" of a community. |
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What You'll Learn
- The hardship must be related to the property, not the applicant's personal circumstances
- The hardship must be an unusual irregularity that makes it difficult to comply with zoning regulations
- The hardship must be more than an inconvenience and must be peculiar to the property
- The hardship must not be self-created, i.e., due to the applicant's actions or lifestyle choices
- The hardship must not be based on a desire to make more money from the property
The hardship must be related to the property, not the applicant's personal circumstances
When it comes to zoning variances, it is important to understand that the definition of "hardship" is very specific and distinct from the common understanding of the term. In the context of zoning law, a hardship refers to the property itself and not the applicant's personal circumstances or preferences.
For example, let's consider a property with a unique lot shape that narrows dramatically towards the front yard. In this case, the side yard setbacks imposed by zoning regulations may prohibit the property owner from making additions to their home. Here, the hardship is not being allowed to build an addition due to the strict application of the zoning ordinance, and it is peculiar to this specific property because of its unusual lot shape. This type of hardship is not a result of the applicant's personal circumstances or lifestyle choices but rather the unique characteristics of the property itself.
It is important to distinguish between a dimensional variance and a use variance. A dimensional variance is sought when a property owner intends to use their property for a permitted purpose within the zoning district but cannot meet specific requirements such as setback, area, height, or location stipulations. On the other hand, a use variance is requested when a property owner seeks to utilise their property for a purpose that is not ordinarily permitted in that zoning district. The "undue hardship" standard for a use variance is notably more challenging to attain, necessitating proof that "the property cannot reasonably be used in a manner consistent with the existing zoning."
When applying for a zoning variance, it is essential to recognise that the hardship must be inherent to the property and not a result of the applicant's actions or preferences. For instance, if a property owner intentionally or carelessly constructs an improvement that does not adhere to setback or dimensional requirements and subsequently applies for a variance, this would be considered a "self-created hardship." While the costs of demolition and relocation can be substantial, they do not qualify as a valid hardship justification. Instead, the hardship argument must focus on the unique attributes of the property that hinder compliance with zoning regulations.
To summarise, when discussing zoning variances, "hardship" specifically refers to challenges arising from the property's unique characteristics, such as its location, size, shape, or topography, rather than the applicant's personal circumstances. It is important to thoroughly understand the distinction between dimensional and use variances and to provide substantial evidence to support your claim of hardship. Remember, the evaluation of hardship is a meticulous process that may involve multiple stages, and the ultimate authority rests with the municipality's Zoning Board of Appeals.
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The hardship must be an unusual irregularity that makes it difficult to comply with zoning regulations
A zoning variance refers to a situation where a property is unfairly burdened by general rules, creating an unnecessary hardship for the owner. The hardship must be an unusual irregularity that makes it difficult to comply with zoning regulations. This means that the hardship must be peculiar to the property and not general to the neighbourhood or community. For example, the location of the property, the size or shape of the lot, or the presence of water features on the site could create a hardship that makes it difficult for the owner to comply with zoning regulations.
To obtain a zoning variance, an applicant must demonstrate that the hardship is not just a mere inconvenience but a substantial difficulty. The cost of compliance may be considered, but it is not the sole factor. The applicant must provide evidence that the additional cost is substantial and undue compared to others in the same zoning district. It is important to note that the hardship must arise from the property itself and not the personal circumstances of the applicant.
The evaluation of hardship is a crucial aspect of the zoning variance process. It is first assessed by the applicant and their project team, who identify the "best shot" at a hardship claim. Subsequently, a zoning officer evaluates the hardship claim and acts as a gatekeeper to the Zoning Board of Appeals (ZBA), dismissing frivolous claims. The ZBA holds a quasi-judicial hearing to consider the evidence presented and determine whether the hardship qualifies for a zoning variance.
It is worth noting that certain requests for zoning variances may stem from a disagreement with the ordinance rather than a unique circumstance of the property. For instance, requests concerning the maximum size of accessory buildings or the number of domestic animals allowed are typically disagreements with the ordinance itself. In such cases, objections should be directed to the Planning Commission and governing body rather than seeking a zoning variance.
Additionally, it is important to understand the difference between a dimensional variance and a use variance. A dimensional variance involves a permitted use within the zoning district that does not meet specific requirements, such as setback, area, or height. On the other hand, a use variance is a request to utilise the property for a purpose not permitted in the zoning district. The approval standards differ, with the "undue hardship" standard for a use variance being more challenging to meet.
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The hardship must be more than an inconvenience and must be peculiar to the property
The concept of "hardship" in the context of zoning law is distinct from the common understanding of the term. In zoning matters, a hardship is a very specific and narrow concept. It refers to an unusual irregularity in a property that makes it uniquely challenging for the owner to fully comply with zoning regulations. This hardship must be intrinsic to the property itself, rather than the personal circumstances of the owner.
When it comes to zoning variances, the hardship must be more than a mere inconvenience. It should be a significant challenge that is specific to the property in question and not a general issue affecting the entire neighbourhood or community. For example, the location, size, shape, or topography of the land could create a unique hardship for the owner.
To illustrate, consider a property with a unique lot shape that narrows dramatically towards the front yard. In this case, the side yard setbacks imposed by zoning regulations may prohibit the property owner from making additions to their home. Here, the hardship arises from the strict application of the zoning ordinance (the setback requirement) and is peculiar to the property due to its unique shape.
It is important to note that the hardship must also meet certain criteria. It should not be self-created, resulting from the actions of the applicant or anyone with an interest in the property. Additionally, the purpose of seeking a variance should not be solely to increase the property's monetary value. Furthermore, granting the variance should not be detrimental to public welfare or cause harm to neighbouring properties or improvements.
In summary, when seeking a zoning variance, the applicant must demonstrate that the hardship is not merely an inconvenience but a significant challenge that is unique to their property. This distinction is crucial in ensuring that zoning variances are granted only in circumstances where the strict application of zoning regulations would create an unnecessary and peculiar hardship.
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The hardship must not be self-created, i.e., due to the applicant's actions or lifestyle choices
When it comes to zoning variances, a hardship is a very specific concept. It refers to an unusual irregularity in a property that makes it uniquely challenging for the owner to fully comply with zoning regulations. Importantly, it pertains to the land itself and not the personal circumstances of the applicant. This distinction is crucial, as zoning regulations aim to uniformly apply a set of rules to properties, despite their differences in topography, access, and existing structures.
However, it is important to note that the line between property characteristics and personal circumstances is not always clear-cut. For instance, consider a property owner who builds an improvement that does not meet setback requirements. In such a case, the expense incurred in demolishing and relocating the improvement could be considered a "self-created" hardship resulting from the applicant's actions. This type of hardship, where the applicant's actions or lifestyle choices contribute to the hardship, is not typically grounds for a zoning variance.
To further illustrate, certain variance requests may stem from an applicant's disagreement with the ordinance rather than unique property circumstances. For example, requests concerning the maximum size of accessory buildings or the number of domestic animals allowed are not necessarily reflective of practical difficulties unique to the property. Instead, they indicate a preference for more lenient standards, which do not qualify as valid hardships.
It is worth mentioning that the evaluation of hardship is a thorough process. It often involves input from project teams, zoning officers, and neighbours, who may oppose the application if they believe there is no genuine hardship. Ultimately, the municipality's Zoning Board of Appeals holds the authority to deem a hardship valid or not, considering factors such as the physical surroundings, shape, or topographical conditions of the property, and ensuring that the hardship is not general to other properties within the same zoning district.
In summary, when considering what constitutes a hardship for a zoning variance, it is essential to remember that the hardship must arise from the property itself and not be self-created due to the applicant's actions or lifestyle choices. While there is no one-size-fits-all formula, understanding the unique challenges posed by a property's characteristics can help support a valid claim for a zoning variance.
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The hardship must not be based on a desire to make more money from the property
A zoning variance is a request to be exempt from a zoning regulation that unfairly burdens a particular property. For example, a restaurant owner may need a zoning variance to install a sign if the local zoning code restricts it. To obtain a zoning variance, the applicant must demonstrate an unnecessary hardship that is peculiar to the property, not general to the neighbourhood or community.
The hardship must be more than a mere inconvenience or preference for a more lenient standard. The cost of compliance may be a factor, but it is not enough to simply state that development will cost more. The applicant must demonstrate the substantial and undue nature of the additional cost compared to others subject to the same restriction. The hardship must also not impair public health, safety, comfort, morals, or general welfare.
The character and amount of evidence needed for a zoning variance vary between jurisdictions. Applicants should speak with the building department or the municipality's planning and zoning personnel for guidance on what to submit. An experienced professional can help find alternative evidence to submit in lieu of the requested supporting documents.
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Frequently asked questions
A hardship in the context of zoning law is an unusual irregularity in a property that makes it difficult to comply with zoning regulations. This could be due to the location, size, or shape of the lot, or the topography or water features on the site.
A hardship for a zoning variance is when a particular property is unfairly burdened by general zoning rules, creating an unnecessary hardship for the owner. The hardship must be peculiar to the property and not general to the neighbourhood or community.
To prove unnecessary hardship, you must show that the hardship results from conditions that are unique to the property and not from the applicant's personal circumstances or preferences. The hardship must also be more than mere inconvenience, and the applicant must provide substantial and relevant evidence to convince the decision-making board that the property meets the statutory standards for a variance.
Valid hardships are those that are peculiar to the property, such as the location, size, or shape of the lot, or topography or water features on the site. For example, a property owner may be unable to build an addition due to the shape of their lot and the side yard setbacks.
