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Thread: Conditional variances

  1. #1
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    Conditional variances

    Are there limits to the types of conditions the ZBA can attach to a variance request? Can there be a time frame for a variance, such as allowing a fence, but only for a period of ten years (just an example)?

  2. #2
    Cyburbian The One's avatar
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    Hmmmm......

    NO.
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  3. #3
    Cyburbian Plus
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    Same answer as The One's.
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  4. #4
    From Indiana code:

    IC 36-7-4-918.2
    Board of zoning appeals; special exceptions and certain uses; approval or denial
    Sec. 918.2. A board of zoning appeals shall approve or deny all:
    (1) special exceptions;
    (2) special uses;
    (3) contingent uses; and
    (4) conditional uses;
    from the terms of the zoning ordinance, but only in the classes of cases or in the particular situations specified in the zoning ordinance. The board may impose reasonable conditions as a part of its approval.
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  5. #5
    Cyburbian The One's avatar
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    Uh Oh....

    Quote Originally posted by The One View post
    NO.
    I wasn't clear.....

    Are there limits to the types of conditions the ZBA can attach to a variance request?
    As Gedunker points out....only if allowed in your State. We have a Board of Adjustment that is supposed to say yes or no to variances and isn't supposed to hear land use cases, special uses or conditional uses or uses on appeal at all...at least there isn't anything in the statutes allowing this in ArizonaI had this same problem in Colorado, but there was a much more complex disagreement between the land use attorney's in that state about whether or not a County BCC could delagate it's land use authority to the Board of Adjustment. Since it hadn't been tested at the courts....the legal thinking on this was split 50/50. This was about 8 years ago, maybe things have changed.

    Can there be a time frame for a variance, such as allowing a fence, but only for a period of ten years (just an example)?
    No, there shouldn't be a condition or stipulation attached to variances. A yes or no decision.
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  6. #6
    Cyburbian stroskey's avatar
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    Good question. For variances no, I don't think there should be conditions but for other Board of Adjustment items absolutely, they can and should make conditions as part of the approval. If you keep seeing variances for the same item maybe your Commission needs to look at amending the ordinance because clearly there is a problem.

  7. #7
    Cyburbian kalimotxo's avatar
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    Quote Originally posted by Gedunker View post
    From Indiana code:

    IC 36-7-4-918.2
    Board of zoning appeals; special exceptions and certain uses; approval or denial
    Sec. 918.2. A board of zoning appeals shall approve or deny all:
    (1) special exceptions;
    (2) special uses;
    (3) contingent uses; and
    (4) conditional uses;
    from the terms of the zoning ordinance, but only in the classes of cases or in the particular situations specified in the zoning ordinance. The board may impose reasonable conditions as a part of its approval.
    That ordinance doesn't say anything about variances. Unless things are different in Indiana, all of the flexible use mechanisms listed in this ordinance would be consistent with the zoning code, whereas a variance would not.

    A variance should have something to do with the "permanent" circumstances of the property, not some temporal circumstance. Once granted, it becomes part of the zoning code. As TO said, the granting of a variance should be a simple up or down response. Any conditions applied would be a misuse of the method and potentially illegal.
    Process and dismissal. Shelter and location. Everybody wants somewhere.

  8. #8
    Cyburbian
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    I can't remember a variance that didn't have at least one condition attached to it. It might be as simple as, "Except as otherwise modified by this Permit, all material representations of the Applicant in the submittal package and in public hearing, shall be binding." Usually any conditions clarify what's being approved so that all parties understand it.

    Our code: "In approving an application, the BoA may impose such requirements and conditions as it deems necessary to enforce compliance with these Regulations, or for the protection of adjoining and adjacent properties..."

    Also,

    "All Zoning Variances expire 3 years from the date of granting if no Building Permit has been issued to establish the development authorized by the Zoning Variance; or, if the development does not require a Building Permit, if it has not been established, is not ongoing, or is not in operation. Permitted time frames do not change with successive owners."

  9. #9
    Cyburbian
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    I think it depends on the state you practice in. I practiced in Michigan and we often attached conditions to a variance. Now I practice in Illinois and I've yet to see a variance without conditions.

    Not sure on the time limit thing, though. I always think of variances without a time limit. What does the Michigan Zoning Enabling act say?

  10. #10
    Cyburbian The One's avatar
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    Well.....

    Quote Originally posted by Bim View post
    I can't remember a variance that didn't have at least one condition attached to it. It might be as simple as, "Except as otherwise modified by this Permit, all material representations of the Applicant in the submittal package and in public hearing, shall be binding." Usually any conditions clarify what's being approved so that all parties understand it.

    Our code: "In approving an application, the BoA may impose such requirements and conditions as it deems necessary to enforce compliance with these Regulations, or for the protection of adjoining and adjacent properties..."

    Also,

    "All Zoning Variances expire 3 years from the date of granting if no Building Permit has been issued to establish the development authorized by the Zoning Variance; or, if the development does not require a Building Permit, if it has not been established, is not ongoing, or is not in operation. Permitted time frames do not change with successive owners."
    Are you operating in a home rule County or City? Very few cities in Colorado remain statutory entities. This could explain some of the language you quote. If you are in a statutory County in Colorado (all but 5 now? counting City and County of Denver and Broomfield right?) I would read the "conditions necessary" section of your code as allowing a modification of the requested variance to avoid a conflict with another regulation or as a result of concern from a neighbor.

    A good example would be someone asking for a variance of 2 feet from a required 5 foot side setback in a residential zone and the resulting 3 foot separation between the new home and property line won't allow adequate access to service an electrical panel....or adequate egress, or adequate drainage or whatever under some other code. Maybe there is a shared and platted eight foot drainage easement running along the property line and the BOA doesn't want to allow an encroachment for obvious reasons so they modify the requested 2 foot variance to a 1 foot variance and approve the request for a 1 foot variance. If you call this modification a "condition", then this kind of condition may be allowed because you are keeping the approval limited to less than what was advertised and asked for by the applicant. This kind of condition would be supported by the text you provided. A condition requiring the removal of a home or otherwise permanent structure after some arbitrary amount of time would be problematic to enforce. If the request meets the criteria for approval of a variance now, why does it have to go away at all? This sounds like a special use/conditional use not a variance.
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  11. #11
    Quote Originally posted by kalimotxo View post
    That ordinance doesn't say anything about variances. Unless things are different in Indiana, all of the flexible use mechanisms listed in this ordinance would be consistent with the zoning code, whereas a variance would not.

    A variance should have something to do with the "permanent" circumstances of the property, not some temporal circumstance. Once granted, it becomes part of the zoning code. As TO said, the granting of a variance should be a simple up or down response. Any conditions applied would be a misuse of the method and potentially illegal.
    Good catch
    But here's the rest of the story:
    IC 36-7-4-918.4
    Board of zoning appeals; variance of use
    Sec. 918.4. ADVISORY.METRO. A board of zoning appeals shall approve or deny variances of use from the terms of the zoning ordinance. The board may impose reasonable conditions as a part of its approval. A variance may be approved under this section only upon a determination in writing that:
    (1) the approval will not be injurious to the public health, safety, morals, and general welfare of the community;
    (2) the use and value of the area adjacent to the property included in the variance will not be affected in a substantially adverse manner;
    (3) the need for the variance arises from some condition peculiar to the property involved;
    (4) the strict application of the terms of the zoning ordinance will constitute an unnecessary hardship if applied to the property for which the variance is sought; and
    (5) the approval does not interfere substantially with the

    comprehensive plan adopted under the 500 series of this chapter.
    As added by P.L.357-1983, SEC.13.
    On pitching to Stan Musial:
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  12. #12
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    Thanks to everyone for their responses,

    I can't speak on conditions imposed on variances in states other than Michigan, but it all sounds a bit complicated in Colorado.

    I finally found my copy of 'Michigan Zoning, Planning, and Land Use' and found an answer to my question. According to chapter 7.7 of MZPLU, "The ZEA specifically authorizes a ZBA to impose conditions on a variance grant. However, the conditions must relate, in some fashion, to the request and must otherwise meet the standards of the ZEA and the local ordinance"

    As far as the time limit part of my question goes, it gets a bit trickier. Several court cases have dealt with the issue, with the penultimate case deciding that "Conditions that served the legitimate zoning purposes" can be upheld. In that case, the ZBA granted a variance to expand a nonconforming residence but only on the condition that the property owners used the residence as a home on a temporary basis and not as a rental unit in the future. The court of appeals hald that the conditions converned a legitimate zoning purpose, and were not so restrictive as to constitute a forced dedication or confiscation of land.

  13. #13
    Cyburbian
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    Quote Originally posted by SWMPlanner View post
    Are there limits to the types of conditions the ZBA can attach to a variance request? Can there be a time frame for a variance, such as allowing a fence, but only for a period of ten years (just an example)?
    Here are relevant sections of the Michigan Zoning Enabling Act:

    125.3606 Section 604 (7)
    If there are practical difficulties for nonuse variances as provided in subsection (8) or unnecessary hardship for use variances as provided in subsection (9) in the way of carrying out the strict letter of the zoning ordinance, the zoning board of appeals may grant a variance in accordance with this section, so that the spirit of the zoning ordinance is observed, public safety secured, and substantial justice done. The ordinance shall establish procedures for the review and standards for approval of all types of variances. The zoning board of appeals may impose conditions as otherwise allowed under this act. (emphasis added)
    So yes, you can impose conditions. But I don't think that was your first question. The sticky point above is "what is otherwise allowed under the act?" It's not quite clearly spelled out, but I think you can reasonably refer to the other mentions of conditions in the Act, such as conditional rezoning or conditions attached to a Special Use Permit.

    Section 504 (4) of the Act states that conditions imposed to a Special Use Permit or PUD shall meet all of the following requirements:
    a) Be designed to protect natural resources, the health, safety, and welfare, as well as the social and economic well-being, or those who will use the land use or activity under consideration, residents and landowners immediately adjacent to the proposed land use or activity, and the community as a whole.
    b) Be related to the valid exercise of the police power and purposes whish are affected by the proposed use or activity.
    c) Be necessary to meet the intent and purpose of the zoning requirements, be related to the standards established in the zoning ordinance for the land use or activity under consideration, and be necessary to insure compliance with those standards.
    So. Back to your fence example. Let's say that a municipality has approved a gravel mining operation as a Special Use on parcel A, but imposed limits within the SUP that they can only mine gravel there for 10 years, after which the site will be finished and restored to an acceptable state.

    The owner on parcel B comes in and wants to build a 10-foot high fence to help screen his view of the big nasty gravel pit. However, the ordinance limits fences to 6-feet high. Why, when considering the conditions I referenced above, wouldn't the ZBA be able to consider granting a variance with a condition attached that the 10-foot high fence has to come down in 10 years after the gravel pit has ceased operation?

    Obviously, you would want to be very careful in your approval motions, and specifically reference what you are doing and why, but in how I read the Act, I think it's a fair interpretation.

  14. #14
    Cyburbian The One's avatar
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    Ahh......

    Quote Originally posted by Gedunker View post
    Good catch
    But here's the rest of the story:
    IC 36-7-4-918.4
    Board of zoning appeals; variance of use
    Sec. 918.4. ADVISORY.METRO. A board of zoning appeals shall approve or deny variances of use from the terms of the zoning ordinance. The board may impose reasonable conditions as a part of its approval. A variance may be approved under this section only upon a determination in writing that:
    (1) the approval will not be injurious to the public health, safety, morals, and general welfare of the community;
    (2) the use and value of the area adjacent to the property included in the variance will not be affected in a substantially adverse manner;
    (3) the need for the variance arises from some condition peculiar to the property involved;
    (4) the strict application of the terms of the zoning ordinance will constitute an unnecessary hardship if applied to the property for which the variance is sought; and
    (5) the approval does not interfere substantially with the

    comprehensive plan adopted under the 500 series of this chapter.
    As added by P.L.357-1983, SEC.13.
    Exactly how is a "Variance of Use" NOT a special use or conditional use in other places? The name itself presupposes a "USE." I guess I shouldn't be surprised by this kind of language, I've seen this sort of bipolar language in many other places We were bared from trying to use the non-compliance with the Comprehensive Plan as a finding of fact against granting a "true" variance in Colorado. (Some Court Case)

    Planned Developments are a completely different animal in most cases. Many minor amendments could be done through staff with density and use issues being decided by the governing board or council in many cases because it was tantamount to an amendment to the zoning at a certain point.
    Last edited by The One; 06 Nov 2009 at 5:44 PM. Reason: Just doing my part to debunk RJ
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  15. #15
    Cyburbian kalimotxo's avatar
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    Quote Originally posted by The One View post
    Exactly how is a "Variance of Use" NOT a special use or conditional use in other places?
    Wouldn't the difference be in this language: "A board of zoning appeals shall approve or deny variances of use from the terms of the zoning ordinance." ?

    In other words, conditional and special uses are explicitly permitted by the zoning ordinance, whereas a use variance involves a use that doesn't conform to the ordinance. I guess I'm not seeing the "bipolar language" you speak of.
    Process and dismissal. Shelter and location. Everybody wants somewhere.

  16. #16
    Cyburbian The One's avatar
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    Hmm.....

    Quote Originally posted by kalimotxo View post
    Wouldn't the difference be in this language: "A board of zoning appeals shall approve or deny variances of use from the terms of the zoning ordinance." ?

    In other words, conditional and special uses are explicitly permitted by the zoning ordinance, whereas a use variance involves a use that doesn't conform to the ordinance. I guess I'm not seeing the "bipolar language" you speak of.
    "A board of zoning appeals shall approve or deny variances of use from the terms of the zoning ordinance."

    That's funny because I see this sentence as being counterintuitive...but only because I'm so used to seeing the term variance and special use/conditional use as two completely different beasts The difference being the use of the word use. If they just got rid of the words "of use" from the above statement, I wouldn't have an issue with the language It seems to me that because of the syntax of that sentence, it could be read as to allow use reviews and variances from the terms of the zoning ordinance to take place conditionally within the broader scope of the statute.

    No doubt kalimotxo and I will go on living in peace regardless of syntax
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  17. #17
    Cyburbian Emeritus Chet's avatar
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    I think this is a state-by-state issue. In Wisconsin, once a variance is granted, it runs in perpetuity. It can't expire. (most) of our local ZBAs are cautious for that reason.

  18. #18
    NIMBY asshatterer Plus Richmond Jake's avatar
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    Variance conditions: absolutely, provided the conditions imposed have a reasonable relationship to the impact caused by the issuance and relief granted by the variance.
    Time frame: the variance runs with the land provided the approved variance is exercised in a timely manner.



    As long as the issue of use variances has surfaced: I've never worked where they were allowed. IMHO, that's bad planning policy, so just suck it up and change the comp plan land use designation and zoning to permit the use.

  19. #19
    Cyburbian
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    Quote Originally posted by The One View post
    Are you operating in a home rule County or City? Very few cities in Colorado remain statutory entities. This could explain some of the language you quote. If you are in a statutory County in Colorado (all but 5 now? counting City and County of Denver and Broomfield right?) I would read the "conditions necessary" section of your code as allowing a modification of the requested variance to avoid a conflict with another regulation or as a result of concern from a neighbor.

    A good example would be someone asking for a variance of 2 feet from a required 5 foot side setback in a residential zone and the resulting 3 foot separation between the new home and property line won't allow adequate access to service an electrical panel....or adequate egress, or adequate drainage or whatever under some other code. Maybe there is a shared and platted eight foot drainage easement running along the property line and the BOA doesn't want to allow an encroachment for obvious reasons so they modify the requested 2 foot variance to a 1 foot variance and approve the request for a 1 foot variance. If you call this modification a "condition", then this kind of condition may be allowed because you are keeping the approval limited to less than what was advertised and asked for by the applicant. This kind of condition would be supported by the text you provided. A condition requiring the removal of a home or otherwise permanent structure after some arbitrary amount of time would be problematic to enforce. If the request meets the criteria for approval of a variance now, why does it have to go away at all? This sounds like a special use/conditional use not a variance.
    Hey [B]TO[B]. Sorry I didn't get back here sooner. I decided not to work this weekend. Imagine that! Yes, we are a statutory county (Pikes Peak area) as are most Colorado counties. I don't really know about most towns and cities but I do know of several that remain statutory. Your read of the quotes is exactly correct and your example is a good one. I would call such a modification a "condition" simply because it is not the same as what was initially applied for.

    However, I can't imagine a circumstance that you provide (removing a home or permanent structure) in which that might be required. I think a denial of the variance request would be more appropriate in such a case. In fact, it occurs to me that that might be the crux of the issue in this thread: we recommend denial of more variance requests than we recommend approval.

    As for time limits, all of our development permits are time limited (except rezoning). If the applicant doesn't get on with their approval then perhaps they didn't need it in the first place. We are still dealing with 10 and 20 year old unconsummated approvals, one of which was an unconditioned variance for a garage. The property was sold a couple of times and we had to approve the home that was eventually applied for, much to the consternation of the adjacent property owner.

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