Apr 17, 2010


The Dept of Planning & Permitting offers relief from the strict interpretation of the Zoning Code. In general, if the exception is for the public benefit, a Conditional Use Permit is sought. If the exception is primarily for benefit of an individual property, then it's a Variance. In practice, the Zoning Board of Appeals has stated at one hearing I attended, that a Variance is not to be based on individual hardship but instead based on the characteristics of the property.
  • (Interesting fact: There are two types of permits: "Ministerial" and "Discretionary". Ministerial means that once an applicant meets all the requisite conditions, the permit must be granted. Whereas Discretionary means that the City Planner uses his/her discretion on a case-by-case basis to determine the merits of a project, whether it should be approved or not, or approved with conditions.
Building Permits are Ministerial.
Most Zoning Permits are Discretionary.

Thus, it's no surprise that the Variance approval process is subjective. For example, the minimum setback between a residential structure and the rear/side property line is 5'-0". However, there is no written rule as to exactly how many inches a structure can encroach into the minimum setback and still be approved under a zoning variance. It all depends on the specific circumstances involved.

For the undaunted who still wish to press on: City Charter allows a Variance can be granted, but it must first meet the 3 tests of Hardship:
  1. the applicant would be deprived of the reasonable use of such land or building if the provisions of the zoning code were strictly applicable;
  2. the request of the applicant is due to unique circumstances and not the general conditions in the neighborhood, so that the reasonableness of the neighborhood zoning is not drawn into question; and
  3. the request, if approved, will not alter the essential character of the neighborhood nor be contrary to the intent and purpose of the zoning ordinance.

Sometimes public input is a required step of the Conditional Use Permit process. Approval is never guaranteed and even partial approval, can put an applicant back to square one, since partial approval may mean a significant re-design of the project.

The approval process typically requires other government offices' review. Traffic will look at a project and may impose restrictions on a project that are completely separate from the Health Department's requirements.

Over the years and thanks to a few helpful City Planners, I have obtained copies of (approved) variances, related to our Client's situation. These give some insight into the reasoning behind their decision and what factors they see as relevant to each case. See VARIANCES link.