Lesson 23: Variances and Special Exceptions

In the context of comprehensive planning and zoning ordinances, variances and special exceptions play a critical role. These mechanisms allow property owners to deviate from strict zoning regulations under certain conditions, ensuring flexibility within the regulatory framework.

Types of Variances

There are generally two types of variances:

  • Area Variance: Permits deviations from physical or dimensional requirements such as setbacks, lot area, or building height.
  • Use Variance: Allows a land use that is otherwise prohibited by the zoning ordinance, such as commercial activities in a residential zone.

Legal Standards for Granting Variances

The legal standards for granting variances can be complex and vary by jurisdiction, but generally, the following conditions must be met:

  • Unnecessary hardship or practical difficulties if the variance is not granted.
  • The variance is not contrary to the public interest.
  • The spirit of the zoning ordinance is observed.
  • The variance will not adversely affect adjacent properties.

Special Exceptions

Special exceptions, also known as conditional uses, are uses permitted by the zoning ordinance provided certain conditions are met. Unlike variances, which are not foreseen by the zoning ordinance, special exceptions are anticipated uses that require additional scrutiny.

Comparison: Variances vs. Special Exceptions

Diagram: Variance and Special Exception Process
graph TD A["Application Submission"] B["Planning Commission Review"] C["Public Hearing"] D["Decision by Zoning Board"] E["Approval with Conditions"] F["Denial"] A-->B B-->C C-->D D-->E D-->F

Case Law: Variances and Special Exceptions

Several landmark cases have shaped the understanding and application of variances and special exceptions. Noteworthy cases include:

Rule Against Perpetuities and Variances

The Rule Against Perpetuities can interplay with variances, particularly when conditional uses or exceptions have time-bound conditions. This rule ensures that interests must vest, if at all, within a certain time frame:

\[ \text{No interest is good unless it must vest, if at all, no later than 21 years after some life in being at the creation of the interest.} \]

Advanced Issues: Race Conditions

Race conditions in the context of variances and special exceptions relate to the timing and priority of applications. The first to file and meet all conditions may prevail, but complications can arise:


// Example: Race condition in application processing
let application1 = { id: 1, filedAt: '2023-10-01T09:00:00Z', meetsConditions: true };
let application2 = { id: 2, filedAt: '2023-10-01T09:05:00Z', meetsConditions: false };

function processApplication(app) {
    if (app.meetsConditions) {
        console.log(`Application ${app.id} approved.`);
    } else {
        console.log(`Application ${app.id} denied.`);
    }
}

processApplication(application1); // Outputs: Application 1 approved.
processApplication(application2); // Outputs: Application 2 denied.

Stay tuned for the continuation of this lesson where we will delve deeper into the complexities surrounding variances and special exceptions.

Judicial Review and Standards of Review

Judicial review of variances and special exceptions often involves scrutinizing the decisions made by zoning boards or planning commissions. Courts typically apply different standards of review depending on the nature of the decision:

  • De Novo Review: The court reviews the matter as if it were being heard for the first time, giving no deference to the prior decision.
  • Arbitrary and Capricious Standard: The court will overturn a decision only if it finds that the decision was arbitrary, capricious, or not supported by substantial evidence.
  • Substantial Evidence Standard: The court will uphold the decision as long as it is supported by substantial evidence, even if the court might have reached a different conclusion.
Recommended Reading: Understanding Zoning Law

Case Study: Judicial Review of Variances

In the seminal case of Board of Trustees of Scatliff Trust Fund v. City of Urbana, the court evaluated the zoning board's decision to grant a variance under the substantial evidence standard. This case highlighted the importance of a well-documented record to withstand judicial scrutiny.

Handling Conflicts and Appeals

When disputes arise over variances or special exceptions, property owners and other stakeholders may seek redress through appeals. The appeal process typically involves several steps:

graph TD A["Initial Decision by Zoning Board"] B["Appeal to Planning Commission"] C["Judicial Review in Court"] D["Final Court Decision"] A-->B B-->C C-->D

Complexities in Variances and Special Exceptions

Several advanced issues can complicate the granting and enforcement of variances and special exceptions:

  • Nonconforming Uses: Properties that do not comply with current zoning laws but were legal when established. These uses are typically grandfathered in but can complicate new variance applications.
  • Cumulative Zoning: Where zoning laws allow more restrictive uses but prevent less restrictive ones, creating challenges in obtaining variances for broader uses.
  • Spot Zoning: Granting a variance or special exception to a specific property that results in zoning changes inconsistent with the surrounding areas, often contested for preferential treatment.

Best Practices for Practitioners

Legal practitioners dealing with variances and special exceptions should adhere to certain best practices:

  • Thorough Documentation: Ensure all applications, hearings, and decisions are well-documented.
  • Community Engagement: Engage with the community to address concerns and garner support.
  • Legal Compliance: Verify that all actions comply with local, state, and federal zoning laws and regulations.

Conclusion

Understanding the nuances of variances and special exceptions is crucial for navigating the complexities of land use regulation and zoning. By staying informed on case law, judicial review standards, and best practices, practitioners can effectively advocate for their clients while ensuring compliance with regulatory frameworks.

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