Considerations in Obtaining a Zoning Variance

 

What is a zoning variance?

A zoning variance is a deviation from the standard zoning regulation. In Colorado, municipalities recognize that the strict, literal enforcement of zoning regulations may not always make sense. For this reason, Colorado law requires that counties, cities and towns each form boards of adjustment consisting of a panel of citizens to hear and evaluate requests for zoning variances or narrow changes to the zoning code as it applies to a specific parcel of property. These boards of adjustment are empowered to vary or modify land use regulation subject to certain limitations.

Property owners require zoning variances for a variety of reasons. For example, a homeowner may need a variance allowing him to build a structure higher than the maximum building height limitation. Likewise, a developer may need a variance from a prohibition against expanding a structure within set back from a property boundary line. Similarly, a commercial property owner may need a variance from the zoning regulations or “sign code” as it applies to his business signage.

Generally, most boards of adjustment can only change or “vary” physical limitations imposed by a zoning code, but not use limitations. This means that subject to a few exceptions, most boards of adjustment do not have authority to change a “use” under a zoning code, but do have the authority to modify most physical constraints, such as location of improvements, size of improvements, height of improvements, etc.

One exception to the general rule that boards of adjustment may not vary a use is that many boards of adjustment have authority to grant a stay of enforcement for a prohibited use. For example, where a municipality brings a zoning enforcement action against the landlord of a single family home renting his property as a duplex, a board of adjustment can usually consider a “stay” or a period of time during which the landlord may continue to rent his property as a duplex before strict enforcement of the zoning code. Such “stays” are granted on a case by case basis and can last for periods of months, or even years in some cases, depending on the circumstances.

Zoning Authority

Many property owners are not aware of which authorities regulate zoning matters for their property. Properties located within an “incorporated” area such as a city or town will be regulated by the municipal zoning code for that city or town, while properties located outside an “incorporated” area will fall under county zoning jurisdiction. This distinction is important because it will determine applicable zoning rules, as well as the proper board of adjustment for consideration of a proposed zoning variance.

Criteria Required for a Zoning Variance

Each municipality has adopted its own set of criteria to be satisfied before a zoning variance may be granted. Generally, municipal zoning codes contain a specific list of factors that a board of adjustment will take into consideration when deciding whether to grant a proposed variance. Although each zoning authority has its own set of criteria, most criteria are substantially similar.

The following are typical criteria that one must meet to obtain a zoning variance:

  1. The existence of exceptional and extraordinary physical circumstances.
  2. Strict application of the zoning code would cause undue hardship.
  3. The hardship is not self-imposed.
  4. Granting the variance would not adversely affect adjacent properties.
  5. Granting the variance would not change the character of the zone district.
  6. Granting the variance would not adversely affect health, safety, and welfare.
  7. Granting the variance would not impair the intent of the zoning code.

An applicant for a zoning variance generally bears the burden of showing that the variance should be granted. This means that an applicant for a zoning variance will need to explain to the board of adjustment why the variance sought satisfies the factors for granting such a variance. Consequently, board of adjustment hearings focus on the unique factors as they apply to the property for which a variance is sought. Therefore, applicants seeking a variance should carefully prepare for a board of adjustment hearing to ensure that the board clearly understands why the proposed variance should be granted. Subject to local rules, a board of adjustment generally holds a vote on a proposed zoning variance as to whether to grant it, deny it or grant it with conditions. An applicant whose proposed variance is not granted has a limited right of appeal to a district court within thirty days of denial.

Consider the Politics

Lastly, it is important to keep in mind that local politics also play a role in the zoning variance process. The foregoing considerations are important, but ultimately, the support or lack of support from local community, and especially immediate neighbors, may determine the outcome of a zoning variance request. Generally, local political figures do not want to be associated with an unpopular zoning variance that angered neighbors or disgruntled other community members. Consequently, it can be very helpful to involve neighbors in the zoning variance process.

This article is intended to provide general information and, therefore, should not be treated as legal advice. If you have specific questions about zoning laws or a specific zoning enforcement action, nothing can substitute for the careful analysis by a land use attorney.

Jordan C. May is an associate with Frascona, Joiner, Goodman and Greenstein, P.C., a Colorado law firm. His practice areas include Litigation, andReal Estate. Contact Jordan May.

Disclaimer — Content is general information only. Information is not provided as advice for a specific matter, nor does its publication create an attorney-client relationship. Laws vary from one state to another. For legal advice on a specific matter, consult an attorney.

JORDAN C. MAY