Real Estate Alphabet Soup: V Is for Variance

Miles & Stockbridge P.C.

In my last post, “Real Estate Alphabet Soup: U Is for Unities,” I continued my primer on the “alphabet soup” of real estate. This post continues to stir the “alphabet soup” with the letter “V.”

V is for “variance.” In the realm of real estate and, more specifically, zoning law, a “variance” is an exemption from the application of certain zoning ordinances or regulations, thereby permitting a use which varies from the regulations otherwise permitted under the zoning ordinance. A “variance” may be granted only after review by the appropriate authority, generally an appointed board of zoning appeals, and only upon the satisfaction of certain criteria. And a “variance” may be granted only if strict enforcement of the zoning ordinance or regulation would cause an undue hardship.

Since a “variance” is an exception to an established zoning ordinance or regulation, “variances” generally are not favored and, therefore, must satisfy certain criteria. First, the need for the “variance” must be related to the specific physical conditions unique to the parcel of land, such as certain topographical conditions, exceptional narrowness or shallowness, unusual shape or other extraordinary physical conditions unique to the parcel of land, such that the strict application of the zoning regulations would cause unusual, peculiar, or practical difficulties or undue hardship. The extent or scope of any “variance” must be the minimum necessary to overcome the specific unusual or exceptional physical condition on the land. The need for the “variance” must not be a situation created or caused by the property owner or applicant. And finally, a “variance” cannot be granted if to do so would be contrary to the public interest.

So, to use a practical illustration as an example, if a parcel of land would otherwise satisfy the criteria for a building lot, except for the fact that the land is steeply sloped, oddly shaped and narrow, which would create a practical difficulty to build a structure within the established setback regulations, then a board of zoning appeals may grant a “variance,” but only for the minimum amount necessary to construct the building on the parcel. By contrast, if the property owner requests the “variance” from the established setback requirements solely for the purpose of having the ability to construct a larger structure on the parcel of land than would otherwise be possible within the established setbacks, then the criteria for a “variance” would not be satisfied, and a “variance” would not be appropriate.

In my next post, I will move on to the letter “W,” the next letter in this real estate “alphabet soup.”

Opinions and conclusions in this post are solely those of the author unless otherwise indicated. The information contained in this blog is general in nature and is not offered and cannot be considered as legal advice for any particular situation. Any federal tax advice provided in this communication is not intended or written by the author to be used, and cannot be used by the recipient, for the purpose of avoiding penalties which may be imposed on the recipient by the IRS. Please contact the author if you would like to receive written advice in a format which complies with IRS rules and may be relied upon to avoid penalties.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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