Why zoning needs safety valves
No zoning code can anticipate every lot. Parcels come in odd shapes, steep slopes and unusual sizes. Rules written for a typical lot can produce results that are impractical or unfair on an atypical one. To handle this, codes include procedures for exceptions. The two most common are the variance and the special permit, and they are quite different even though people often use the terms loosely.
Terms and standards vary by country and state, and some places use other names, such as conditional use permit, special exception or adjustment. The overview below describes common patterns.
Variances
A variance allows an owner to depart from a specific requirement in the code, usually a dimensional one such as a setback, height limit, lot coverage or minimum lot size. The classic example is a lot so narrow that a house meeting the side setback rules would be impractically skinny.
Variances are meant to be rare and are traditionally tied to hardship. Many codes require the applicant to show some version of these points:
- A special circumstance. The lot has a physical feature, such as unusual shape, topography or size, that distinguishes it from neighboring lots.
- Not self-created. The difficulty does not come from the owner’s own actions, such as building first and asking later.
- Without the variance, an unreasonable burden. The code is not simply inconvenient; strict application leaves the owner unable to make reasonable use of the land. Mere desire for more profit or space is generally not enough.
- No substantial harm. The exception will not damage neighbors or the public interest or undermine the purpose of the code.
- Minimum necessary. The relief requested is no more than needed.
Variances are generally for dimensional matters, not for use. Many codes prohibit or strictly limit use variances, since allowing a new use in a district approaches rewriting the map. A request to change what is allowed on a site typically belongs in the rezoning process.
Special permits
A special permit, also called a conditional use or special exception, is different. It covers a use or feature that the code allows in a district only after review. The code lists the use as potentially appropriate, but depends on the specific site and design. Examples could include a school, a place of worship, a daycare, a larger home business or a gas station, depending on the district.
Because the code has already said such uses may be acceptable, an applicant does not need to show hardship. Instead, they need to show that the proposal meets standards listed in the code, such as adequate access, manageable traffic and noise, and compatibility with its surroundings. The deciding body may add conditions, such as limits on hours, screening, landscaping, or a cap on size, to reduce impacts.
The simplest way to remember the difference: a variance excuses a requirement, while a special permit grants permission for something the code already contemplates.
Who decides
In many places, a board of zoning appeals or board of adjustment hears variance requests, sometimes also special permits, while a planning commission or governing body handles others. These boards are often composed of appointed residents. They hold public hearings with notice to neighbors, hear the applicant and public comment, and make written findings. Decisions can usually be appealed to a court, though courts typically defer to boards if they follow the correct procedure and the facts support the decision.
Many cities also have an administrative adjustment for minor deviations, such as a few inches or a small percentage, which staff can approve without a hearing. This reduces burden for small matters.
A hypothetical illustration
Consider an undersized lot narrower than current minimums, whose owner wants to build a small house. A strict reading of the side setback rules might leave a buildable width too small for a livable layout. The owner could request a variance reducing each side setback by a couple of feet. A board would ask whether the narrowness is a real feature of this lot rather than the owner’s doing, whether the request is the minimum needed, and whether neighbors would be harmed, for example by fire separation or loss of light. If the board approves, it might attach conditions about window placement. This example is invented for illustration, and real outcomes depend on local rules.
Common criticisms
Inconsistency. Because boards weigh facts case by case, similar requests can get different results. Applicants may feel that outcomes depend on who attends the hearing, and neighbors may feel that hardship standards are applied too loosely.
Hardship is hard to define. Boards sometimes grant variances on grounds that stretch the idea, such as a general desire for a larger home. Critics say this erodes the code and rewards owners who can afford lawyers.
Cost and delay. Applications, notices, hearings and consultants add expense and time, which can discourage ordinary homeowners from pursuing modest changes. At the same time, those with resources can use the process strategically.
Too many exceptions signal a flawed code. If a city grants many variances for the same requirement, that may suggest the rule itself is out of date. A code with frequent variances might benefit from amendment. Some planners argue that excessive reliance on case-by-case approvals is a sign of poor rules, while others see flexibility as a strength.
Neighbor impacts. Neighbors may view an exception as unfair, especially when they complied with the same rule. Others raise precedent concerns: granting one variance makes it harder to refuse the next.
Equity concerns. Those with more time, knowledge and money navigate exceptions more effectively. Procedural complexity can tilt outcomes.
Practical points
For an owner, check first whether a different approach could avoid a variance, such as a small design change, an administrative adjustment or a code provision that already allows flexibility. Talk with planning staff, document the property’s unique features, speak with neighbors, and propose the smallest change that works. For neighbors, attend the hearing or submit comments focused on how the specific request affects light, access, drainage or safety, since boards are expected to base decisions on the code’s criteria. Many older properties are also protected as nonconforming uses or structures, which can sometimes make a variance unnecessary.
Exceptions are not loopholes in themselves. Handled well, they let a code remain firm in general and humane in particular cases. Handled poorly, they can feel arbitrary, and then they undermine the trust that zoning depends on.