May 29, 2010

The Dreaded Zoning Variance

Rule #1: Never apply for a Zoning Variance
Rule #2: See Rule #1...

If you've ever run afoul of the building or zoning code, chances are you've had to deal with a City Inspector. And in a miracle of biblical proportions, you (probably) managed not to strangle said Inspector. Well, their job is no fun either -- imagine a job defending the complex and often overwhelming rules that relate to what you can and cannot build.

So it's no surprise when we get calls from homeowners who just want drawings for a Variance.

As it turns out, when an Inspector says, "Oh, just apply a Variance..." what (s)he's really trying to do, is distract the angry homeowner, like a dog with a bone.

Variances are rarely granted approval and in most cases, you're back to square one. Alternatively, we are able to find enough gray area in the Zoning code that allow us to find workable solutions for our Clients -- without needing a Variance.

Even if you get "Approved!" Zoning Variances come with conditions and additional requirements that may turn the sweet victory, sour. Limiting hours of operation, number of occupants, or approval being limited to the specific business or applicant, so as to void any transfer of rights to a new Buyer, are examples of typical restrictions.

The purpose of a Variance is (usually) to deviate from the strict interpretation of the code. Presumably, because strict conformance would create an undue hardship that is unique to the land and not to the user.

It is a possible strategy to apply for a Variance simply to stall for time. Some Variances take 6 months to a year before they are scheduled for a public hearing.

There are many different kinds of Variances: Zoning Variances, Bldg Code Variances, Driveway Variances, etc. Everyone seems to want a Variance. Even the City & County of Honolulu is trying to get a variance from the EPA to avoid having to upgrade the Honouliuli and the Sand Island wastewater treatment plants to provide secondary treatment. Incidentally, the EPA denied the Variance in Jan 2009 and the City has since appealed that decision to the Environmental Appeals Board.

This process is typical of variances: If the initial Variance application is denied, you can appeal to the Board of Appeals. Failing that, you can hire an attorney and sue. If that still doesn't retun a favorable result, it climbs up the appeals court system until it reaches the state Supreme Court. Where most people run out of money or time or both and the matter is settled.

In reading the results of several of these appeals (in various states across the US), I've noticed a pattern that most Variances involve disputes over Zoning matters and most of these Variances are denied. Overturning of a zoning board of appeal's decision by the courts are rare, since most courts seem to allow the local authority having jurisdiction broad interpretive powers in enforcing and upholding the (in this case) zoning code. And in those rare instances where the heavens part and the courts decide the Variance should not have been denied, they remand the issue back to the Zoning Board of Appeals to reconsider their decision.

Here's one example. The last sentence reads: "Accordingly, the matter must be remitted to the BSA [(Board of Standards and Appeals of the CIty of New York)] for a determination of whether the construction meets the standards of the Zoning Resolution for the issuance of a special permit...."

It's not like Judge Judy where you argue your case as an innocent Homeowner vs the City, and Judy eyes you up and decides the fate of your illegal structure or use. No, the best outcome is that the judge rules that your case has merit and should be sent back from whence it came: the Board of Appeals (the people who now loathe you for challenging their authority), to be reconsidered. As if going through the process was not enough fun the first time, you get to rehash your case all over again.

The one Achilles heel i've read about is the RLUIPA. Go ahead and google search it. I promise you will have a new found respect for religion. The only time a Zoning Variance is recommended is if you are a well funded church.

To those i haven't persuaded, here's a link to the Honolulu's Zoning Variance Guidebook.
Good luck.