Variances, Special Exceptions, and the Zoning Approval Process

Understanding when and how property owners can obtain relief from zoning restrictions through variances (use and area), special use permits/conditional use permits, and the formal approval process involving zoning boards of appeals, public hearings, and conditions of approval.

ARE · Programming & Analysis

Overview

Zoning codes can't anticipate every situation. Sometimes a parcel's odd shape, steep slope, or unusual surroundings make strict compliance impossible. Other times, a proposed use like a daycare center or house of worship is generally compatible with a neighborhood but needs extra conditions to work. That's where variances and special exceptions come in.

A variance is a limited waiver of specific zoning standards for a property facing unique physical hardship. An area variance relaxes dimensional requirements like setbacks or height limits. A use variance, which is harder to obtain and prohibited entirely in some states, allows a land use not otherwise permitted in the zone. The key principle: a variance grants the same development privileges neighboring properties already enjoy. It doesn't hand out extra entitlements.

Special use permits (also called conditional use permits) take a different approach. The zoning code already recognizes certain uses as potentially compatible with the district, but only if specific conditions are met. Think limited operating hours, additional parking, or sound barriers. These permits run with the land and can be revoked if the owner violates the conditions.

The approval process matters just as much as the substance. Applications go through the zoning board of appeals or planning board, with required public notice, formal hearings, and documented findings. For architects, knowing when a project triggers one of these mechanisms and what the approval path looks like is a practical skill you'll need on the ARE and in practice.

Essential

Zoning codes establish the baseline rules for every parcel in a jurisdiction. But real property doesn't always cooperate with a uniform code. Lots come in odd shapes. Hillsides create setback problems that flat parcels never face. And some land uses are genuinely useful to a neighborhood but need guardrails to function well. The zoning system handles these situations through three distinct relief mechanisms: variances, special use permits, and rezoning. Each follows different rules, different standards, and different approval paths. You need to understand all three for the ARE, and you need to know which one applies to a given scenario. ## Variances: Two Types, Two Standards A variance is a limited waiver of one or more zoning standards granted to a property owner who faces a unique hardship caused by the physical characteristics of the land.

Professional

The distinction between variance types and special use permits becomes concrete when an architect faces an actual zoning conflict during programming and analysis. Consider a mixed-use project where the architect discovers during initial code analysis that the client's site, a narrow through-lot with street frontage on two parallel roads, cannot meet the required side-yard setback on one side due to the lot's irregular 40-foot width. The zoning code requires 10-foot side-yard setbacks on both sides, leaving only 20 feet of buildable width for a program that needs at least 28 feet. The physical constraint is the lot shape, not the owner's ambitions. This is a textbook area variance situation. The architect would advise the client to apply to the zoning board of appeals, demonstrating that the lot's unusual dimensions create a hardship not shared by standard-width lots in the same zone.

TLDR

Area variance: relaxes dimensional requirements (setbacks, height, coverage) when physical site conditions create hardship. Uses a balancing test. Most common type granted.
Use variance: allows a prohibited land use. Requires proving property can't earn reasonable return under any permitted use. Banned outright in some states.
Conditional use permit (CUP): authorizes uses already listed in the zoning code as conditionally allowable, subject to conditions that mitigate impacts (hours, parking, screening). Runs with the land.
Hardship must be physical, not economic. Odd lot shape, steep slope, unusual surroundings. Financial hardship alone never justifies a variance.
ZBA (Zoning Board of Appeals): grants variances, hears appeals of permit denials. Mandatory if a jurisdiction adopts zoning.
Process: application, public notice (certified mail to abutters), public hearing, findings-based decision, right of appeal.
Nonconforming uses: pre-existing uses that became illegal when zoning changed. May continue but not expand, not rebuild after serious damage, and may face amortization deadlines.
Rezoning: legislative action by the local legislature to change permitted uses in a district. Required when a variance is unavailable or inappropriate.

ELI5

Think of zoning rules like the rules at a neighborhood pool. Everyone has to follow the same rules: no running, swim in your lane, pool closes at 9 PM. But what happens when the rules don't work for everyone? Say your lane is half the width of everyone else's lane because of how the pool was built. You literally can't stay in your lane and swim normally. That's like having an oddly shaped piece of land that can't meet the zoning setback requirements. You'd ask for a variance, which means you are telling the board, "My situation is physically different from everyone else's, so I need a small exception to follow the spirit of the rules." The pool manager might let you use part of the next lane, but only the minimum amount you need. Now imagine you want to set up a snack stand by the pool.

AREProgramming & Analysis

Variances, Special Exceptions, and the Zoning Approval Process

2 min read242 words

When Zoning Rules Don't Fit: Variances, Special Exceptions, and the Approval Process

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