Variance Standards

Ordinances vary from state to state, but the granting of a variance typically depends on proving a public need or unique circumstances.

The following article originally appeared in the August 1987 issue of Signs of the Times magazine.

By Bob Aran

Rules are made to regulate. There is an exception to every rule. These two axioms were probably written as generic explanations for Murphy’s Law. In the sign industry, the hope prevails that the second of these sayings is acted upon by the government when overburdensome sign ordinances are enforced. Although ordinances are designed to achieve an equitable sense of order, comprehensive ordinances often unfairly affect certain properties’ owners, especially if there are no provisions for flexibility.

Generally, therefore, in a purported effort to achieve substantial parity, and in a lesser measure to attempt to insulate zoning ordinances and other police-power regulations from constitutional attack, there often exists both legislative and/or administrative methods of providing a form of relief to property owners in the nature of either a “Conditional use permit”[1] or “variance.”

While zoning ordinances[2] will vary from local venue to local venue, there nonetheless exists, throughout all such enactments, the common thread of purported enhancement for the total community’s welfare. In that light, most state legislatures, followed by local municipalities and counties, have provided for the granting of variances when an owner or user of land would suffer unnecessary hardship under the zoning ordinance, because the parcel of land regulated is disadvantaged from others in the same vicinity or zone due to size, shape, topography, location, or in some instances, by overbroad reaction[3].

Variances

Although the adoption of zoning regulations is a legislative function, the granting of variances is a quasi-judicial administrative one.

In California, under its state zoning law, a variance may be granted only when special circumstances applicable to the property exist, including size, shape, topography, location or surroundings.[4] The state’s authorization of variances emphasizes disparities between properties, and not treatment of the subject property’s characteristics in the abstract. Rather, it contemplates that, at best, only a small fraction of any one zone can qualify for a variance.

If granted, a variance may be subject to such conditions[5] as will assure that the adjustment thereby authorized shall not constitute a grant of special privileges inconsistent with the limitation upon other properties in the vicinity.

When a variance is sought, the statutory standards applicable in a given area must be first analyzed to determine whether the characteristics of the properties fall within recognized criteria required for the issuance of a variance. The basic standard requires a special circumstance to exist, which is particularly applicable to a given property, and which is uncommon in the zone or to other properties in the area. In other words, the plight of an applicant for a variance must be due to the peculiar circumstance of the property and its condition, which must be special or unique in contrast to that of other property in the same district.[6]

It is important to note that, although state laws establish standards for the granting of variances, such standards may be supplemented by harmonious local legislation.[7] Many cities and counties provide that variances shall not be granted unless they are in compliance with, or in harmony with, the adopted general plan, or the purpose and intent of their cornprehensive zoning ordinance. Although local ordinances are also applicable, they must be consistent with state law and must not be less strict; if consistent, both state and local criteria must be satisfied to justify the grant of a variance.

Standards

Special circumstances
The basic standard for most state zoning laws is that a variance may be granted only when special circumstances applicable to the property exist, including size, shape, topography, location or surroundings.

To illustrate (without, of course, attempting to exhaust all potential special circumstances that can exist), the courts have held that special circumstances exist where:

a) A 20-acre parcel could not be further subdivided and neighboring parcels were much smaller.

b) A roof sign, otherwise prohibited, was permitted to remain because of severe locational disadvantage, where compliance with the local ordinance would have left the sign owner in a posture of being unable to adequately, effectively or noticeably communicate with the public.

c) Off-street parking requirements were waived for an apartment building where the building was located near public parking garages, and the building was to be occupied or used largely by tenants who would not own automobiles.

Special conditions were found not to exist where:

a) The property owner had unusual subsoil conditions, and the soil use for an apartment building would increase the cost of construction and reduce expected income.

b) A billboard located in a residential zone was not entitled to a variance where a local ordinance prohibited all advertising in a residential zone, and the outdoor advertising company failed to show how the ordinance affected its property differently from other properties in the same zone.

c) The grant of a variance to construct an 88-ft. addition to a hotel was reversed, even though the addition was an attractive architectural feature and represented a benefit to the community, and even though there existed certain practical difficulties for the hotel owner. Such conditions were held insufficient to constitute a special circumstance warranting issuance of a variance.

Hardship
Zoning law provides that, to justify the granting of a variance, the special circumstances must be such that the strict application of the ordinance deprives such property of privileges enjoyed by other properties in the vicinity and under identical zoning classification. This standard is commonly referred to as “hardship,” or “unnecessary hardship.” Most courts will treat unnecessary hardship as separate criteria that must be independently met.[8]

A clear illustration of unnecessary hardship occurs when the natural condition or topography of one’s land places him at a disadvantage from other land owners in the area. Where, for example, peculiarities of size, shape or grade of the parcel are unique, and if hardship relates to these, the requirements of unique or special circumstances are met.

Sign usage is a land use. Variance from sign regulations will be granted where a strong showing, as in other forms of land use, is made. The special circumstance standard is as viable for advertising displays as it is for other land usage.

In preparing one’s application for variance, remember that it’s the unique condition of one’s property that warrants the issuance of the variance, not the uniqueness of the plight of the owner. Economic hardship is inadequate to satisfy the hardship requirement for the grant of a variance; however, where the unique condition of one’s property causes the financial condition, such financial hardship may be considered along with other circumstances.

a) Self-induced hardship: It’s established that self-induced hardship by itself is no basis for the granting of a variance. As an example, a voluntary sale of an adjoining parcel of land, leaving a parcel too small for its intended purpose, is a self-induced hardship, and remains self-induced in the eyes of the law, even if a former owner of the land caused the problem. The standard of hardship with regard to variances relates to the property and runs with the land, and not to the person who owns it.[9] Commercial frustration is not such a practical difficulty to generally create the unnecessary hardship required for the issuance of a variance, though it may also be considered along with other unique conditions of the land itself.

Special privileges
Although state law authorizes variances for property deprived of privileges enjoyed by other property in the vicinity, no special privilege will be sanctioned. A variance is designed to bring such properties up to parity with other properties in the vicinity and zone. Generally, the burden of making an affirmative showing that the subject property differs materially, uniquely and in relevant aspect differently from other parcels in the vicinity and zone, and that upon issuance of a variance, it is not benefited by some special privilege, rests upon the party seeking a variance.

But note that it has been held that no special privilege was attached where a variance was granted to use property as a mobile home park, because no other parcel in the area was large enough to accommodate the intended use.[10]

A prior denial of a variance does not necessarily preclude the application and granting of a similar variance for the same property at a later date and does not constitute a special privilege if later granted. While not a prerequisite, a showing of changed conditions to justify the subsequent grant may be more likely to succeed.

Compliance with the general plan
Most cities and counties provide that variances shall not be granted unless they are in compliance with, or in harmony with, the adopted general plan, or the purpose and intent of the comprehensive zoning ordinance.

At first blush, a variance grant in compliance or harmony with a general plan or zoning ordinance seems a contradiction in terms, but if real disparity exists on the property, when compared with other properties in the area and zone, the variance grant will achieve harmony with the general plan and zoning ordinance by creating the parity intended by those laws.

Legislative relief
Thus far, we have examined the standards required for the granting of variances by seeking administrative relief.

If a property owner desires to do something with his property that is otherwise not permitted, he may consider seeking legislative relief by requesting an appropriate amendment to the zoning ordinance itself. Such an amendment requires legislative action by the governing body, and usually takes one of two forms:

a) An amendment rezoning the property from one zoning district to another; or

b) An amendment changing a particular regulation within the text of the zoning ordinance.

Such action takes the form either of reclassification or change of permitted use. The power to rezone or otherwise amend zoning regulations can be invoked by a city or county when the amendment is in the public interests of health, safety or welfare, and is not arbitrary, oppressive or unreasonable.

Although obviously more time-consuming in reaching the desired result than by administrative action, nonetheless, legislative relief may represent a more secure method of obtaining permanent relief from local oppression.

Conclusion
Properly used, the variance method of relief can be most effective and rewarding. Litigation should always be the last resort for relief.

While standards for the issuance of variance seem difficult to achieve, in fact, cities and counties prefer applications for variance over litigation. As a result, where reasonable approaches are taken, cities and counties have been known to stretch findings to accommodate law-abiding citizens in their communities through the administrative process.

This is not to suggest that special circumstances need not exis; however, as the police power of government is elastic, so too is its discretionary power.

It is essential that applications for variance set forth in as much detail as possible the unique characteristics of one’s land and the unreasonable hardships being imposed if compliance with existing laws is to be required.

Additionally, be prepared at the variance hearing to make a full and complete showing of the plight and the need. Use of slides, photographs and other visual tools can be very impressive and should be used wherever feasible. Evidence produced should be direct and specific. Avoid generalities and abstractions. Demonstrate the need, hardship, uniqueness and lack of special privilege with clarity. With some degree of reserve, be assertive and appreciative, but positive.

Remember, should you be denied a variance, the subsequent judicial review is generally limited to the record created at the administrative proceeding. As such, your pre-submitted preparation and any evidence produced at the hearing are extremely important and essential to your ultimate success.

Bob Aran has been state counsel to the California Electric Sign Assn./Sign Users Council of California for the past 13 years. The former chairperson of the executive committee for the Public Law Section of the State Bar of California, Aran authored sections 5490-5499 of the California Business & Professional Code, which deals with just compensation for ordinance-caused removal of on-premise signs. His Sherman Oaks, CA private practice is confined to land-use and real-estate remedies, with a special emphasis on the constitutional aspects of land use.

Citations

1. A conditional-use permit represents one administrative basis for relief from the strict terms of a comprehensive zoning ordinance. Conditional-use permits allow special uses of property under specified conditions, while variances are generally concerned with the nature and location of structures on property, and not with the use. Conditional-use permits are granted without the necessity of meeting the special circumstances necessary for the granting of a variance, but generally are limited in scope and time and may take a form of contractual obligation.

2. The power to zone is derived from state constitutions. Most states ‘ zoning laws purport to provide authority to regulate various zoning activities by local ordinance, such as to regulate the use of building structures, land, signs and billboards, and in the latter regard, the time, manner and location of use of such displays. The power of cities and counties to enact and enforce zoning regulations is derived from the general police power contained in state constitutions, and most such regulations provide for administrative relief under appropriate circumstances.

3. While this treatise will refer generally to California requirements and law, the reader should note that other states and local municipal requirements may differ. Advice from knowledgeable counsel in your area should be obtained.

4. California Government Code, Section 65906.

5. To be granted, variances must bear a reasonable relationship to the public need, and the conditions imposed must be capable of performance by the individual property owner or developer, and not through concerted action by others.

6. Zakessian v. City of Sausalito (1972). 28 Cal.App.3d 794 at 799. Baily v. UHLS (1972 – OK), 503 Pac.2d 877. Sirota v. Gruenwald (1961 — NY), 222 NYS 2d 841.

7. Topanga Association for a Scenic Community v. County of Los Angeles (1974). 11 Cal.3d 506 at 517. In California, charter cities may have different rules applicable from general law cities.

8. Zakessian v. City of Sausalito (1972), 28 CaLApp.3d 794 at 802. Murphy v. Zoning Board of Wilton (1960 – CT), 161 A 2d 185. Sun Oil v. Madison Heights (1972 — MI). 199 NW2d 525. Westfield Motor v. Westfield (1974 – NJ), 324 A2d 113.

9. Town of Atherton v. Templeton (1961), 198 Cal.App.2d 146 at 154. Cohn v. County Board of Supervisors (1955), 135 CaLApp.2d 180. Blount v. Coral Gables (1975 FL), 312 S2d at 208.

10. Allen v. Humbolt County Board of Supervisors (1966), 241 Cal.App.3d 158 at 163. Each property is unique and must be presented in that light. The fact that earlier applicant had failed to obtain a variance or that others have obtained variances, while arguable on a fairness doctrine, is not determinative.

11. Steiger v. Board of Supervisors (1956), 143 Cal.App.2d 352 at 358.

 

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