Land Use Variances - What Are They?

Jeffrey A. Gordon, M.D.

Zoning regulations allow our towns to guide growth and development. When created and used in a practical, common sense manner, they can balance the interests of individual property owners and of the whole community regarding the present and future potential uses of land. But, what does one do when zoning regulations unfairly limit a landowner doing something that he or she wants to do it?

A variance from the regulations can be requested. It is a way for a landowner to seek administrative relief from one or more provisions of the zoning regulations in order to construct a building or proceed with an activity on a specific parcel of land.

A zoning board of appeals reviews and decides upon a variance request. It may vary the use of the regulations so as to allow a specific land use activity to occur on a specific property. The regulations themselves are not actually changed or new ones created. The regulations remain as they are written in their entirety. The variance pertains only to how the current regulations are applied to a specific request based upon a set of unique circumstances.

This is different from the manner in which a planning and zoning commission administers the regulations. Applications for buildings and land uses must conform to all of the regulations. The regulations apply to everyone in a consistent manner. The regulations cannot be changed on the spot in order to permit an otherwise prohibited land use activity.

According to CT General Statutes, a zoning board of appeals can vary the regulations only “in harmony with their general purpose and intent and with due consideration for conserving the public health, safety, convenience, welfare, and property values solely with respect to a parcel of land where, owing to conditions especially affecting such parcel but not affecting generally the district in which it is situated, a literal enforcement of such … regulations would result in exceptional difficulty or unusual hardship so that substantial injustice will be done …”. What does this mean?

“Unusual hardship” must be a unique characteristic of a specific parcel of land. A common example is an odd land configuration that does not conform to a particular aspect of the zoning regulations, such as how far from the boundary line a house must be built or how much road frontage is required. The piece of land otherwise conforms to the remaining zoning regulations. The proposed house is consistent with the neighborhood in which it is located. Yet, because of a specific regulation, the house cannot be built. The hardship cannot be self-created. If someone does something knowingly not in compliance with the regulations, such as selling part of a parcel of land, thereby making the remaining land unable to have a house built upon it, then they cannot after the fact seek a variance. That would not be fair. Likewise, someone cannot claim a financial hardship as a reason to not follow all of the regulations.

The variance does not have anything to do with the person who owns the land. Once the variance is granted, it runs with the land, even after the person who sought the variance sells the land.

The “in harmony with their general purpose and intent” clause of the state statute means that the actions of a zoning board of appeals must be consistent with a community’s planning documents, zoning regulations, comprehensive plan of zoning, and other local regulations and ordinances. A variance may seem contradictory to this because it allows something prohibited to be done. Yet, if there is no significant deviation from this, the goal of correcting an “unusual hardship” may be achieved.

A variance is not a subdivision regulations waiver. Usually, planning and zoning commissions grant subdivision waivers when doing so is consistent with its own regulations and plan of conservation and development, does not adversely affect adjacent properties, and does not impact upon public health, safety and welfare. There are specific state statutes about this type of waiver.

A variance is not a zoning regulation change. If there are many requests for the same type of change, then a planning and zoning commission may decide if general zoning changes are needed. For example, if over time many requests are made for multi-family houses to be built in a single-family residential zoning district, then a zone change may be made to allow both multi-family and single-family houses in residential zoning districts, but only after public input. A planning and zoning commission must be careful not to change the regulations for a particular landowner and not do the same for everyone else in that zoning district, because that could smack of spot zoning (see my article “On The Spot With Zoning”, February 11th).

A variance does not apply to a “grandfathered” legal, nonconforming use, which is a building or land use activity that was in existence before zoning regulations affecting it were enacted. As long as the same structure or activity continues without changes that otherwise would not be in conformity with the regulations, then it is allowable; to apply the regulations in a retroactive manner would be an unfair penalty.

A variance is not an easy thing to get. It should not be. Connecticut General Statutes and the courts set strict criteria for a variance to be granted. If variances were easy to get, then they could quickly bypass your town’s zoning regulations, rendering them meaningless. Appropriate zoning regulations exist for the benefits of everyone in your town. They are enforced to protect these benefits. Otherwise, why have them? But, we need to remain mindful that bureaucratic “red tape” through the use of zoning regulations may at times impose an “unusual hardship” on people through no fault of their own. Variances, when used judiciously and sparingly, can bring fairness to the system.

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