Variances and Appeals
What is a Variance?
A variance is "A relaxation of the terms of the Zoning Ordinance where such variance will not be contrary to the public interest and where, owing to conditions peculiar to the property and not the result of actions of the applicant, a literal enforcement of the chapter would result in unnecessary and undue hardship." (Municipal Code, Section 18-12)
Variances are often requested for such activities as exceeding the building size requirements or needing to build a structure at less than the required setback.
A variance request is heard by the Zoning Board of Appeals, which takes into account specific findings (i.e., facts and conditions) associated with the property and the request. These findings are used to see if the requests meets the following "tests" or criteria:
- Unnecessary hardship is present since strict application of the terms of the Zoning Ordinance would deny the applicant all reasonable use of the property
- The hardship is due to physical limitations of the property rather than the circumstances of the Applicant
- The variance will not be contrary to the public interest and will observe the purpose of the ordinance and do justice
Details of the Variance process are in Section 18-165 of the Municipal Code, which can be found on the City’s website.
Steps in the Variance Process
1. Prior to Application
Applicants seeking to receive a variance should request an informational meeting with City Staff or obtain an information packet. Useful information to have available when meeting with or phoning City Staff includes:
- Address of the property
- Detailed sketch, survey, or plat of the existing area
- Proposed variance and preliminary site plan (including detailed measurements)
A variance application form lists all of the required information for submittal.
2. Application Submittal
Applicants must submit a completed application form, including all relevant information, to the Development Services Department. The burden of proof to show the variance request meets applicable criteria falls on the Applicant.
3. Zoning Board of Appeals Public Hearing and Meeting
Upon acceptance by the Development Services Department of the completed application, the variance request will be placed on the next available Zoning Board of Appeals agenda. The Zoning Board of Appeals holds a public hearing on a scheduled date, typically the second Tuesday of the month. The Zoning Board of Appeals considers the request based on the findings of fact and the variance criteria, and makes a decision to approve or deny the request. In some situations, the Board may approve the request if a lesser variance is acceptable to the Board and agreeable to the applicant. Unlike the City Plan Commission, the Zoning Board of Appeals’ decisions are final.
The Zoning Board of Appeals "may not permit as a variance any use that is not permitted...for the property in the zone where the affected person’s land is located" per Section 18-156(5). Meaning, a variance from the Zoning Ordinance may be requested for virtually any matter except unpermitted land uses (e.g., variance to construct an auto body shop in a residential zoning district).
The appeals process works in a similar manner as the variance process. An appeal is filed by an applicant "where it is alleged there is an error in any order, requirement, decision, or determination made by [staff] in the enforcement of [the Zoning Ordinance] or of any ordinance" (Sec. 18-170(2)).
How to Apply for a Variance
Application for a variance is made on a form available from the Development Services Department and submitted as noted in Step 2. The application must include:
- Detailed explanation of the requested variance, including the specific section or sections of the Zoning Ordinance being varied.
- Scaled map and site plan, showing pertinent property boundaries and including a graphic scale.
- Responses to the narrative questions listed in the application that show whether the variance criteria is met.
Specifics of these and other submittal requirements are included on the application form.
The City’s fee to submit a Variance Request Application or to file an appeal is listed in the Fee Schedule.
For more information regarding variance requests, please contact the Associate Planner (Zoning Administrator) at 715-486-2077.