Also known as: zoning variance · variance
Written by attorneys — see sources below.
A special administrative decision that allows particular properties to fall out of compliance with zoning rules. The decision permits uses or structures that the ordinance would otherwise prohibit when the owner demonstrates hardship unique to the parcel.
Zeke Zola sought a variance to add a third story to his home in a two-story residential zone. The board denied the request after finding no unique hardship. On appeal Zeke argued the denial rested on an evidentiary flaw that did not affect his substantial rights under the applicable standard.
Zara Zuberi owned a church camp closed by a county flood-zone ordinance. After the ban was lifted she sought compensation for the period of total deprivation. The court treated the interim restriction as a variance denial that required case-specific fairness analysis rather than automatic per se treatment.
In 1957, the First English Evangelical Lutheran Church purchased a 21-acre parcel of land in a canyon along the banks of Mill Creek in the Angeles National Forest. The Church operated a campground known as Lutherglen on the property, which included a dining hall, two bunkhouses, a caretaker's lodge, an outdoor chapel, and a footbridge across the creek. In July 1977, a forest fire denuded approximately 3,860 acres of the watershed area upstream from Lutherglen. On February 9 and 10, 1978, a storm dropped eleven inches of rain in the watershed, causing Mill Creek to overflow its banks, flood Lutherglen, and destroy its buildings. In January 1979, the County of Los Angeles adopted Interim Ordinance No. 11,855, which provided that a person shall not construct, reconstruct, place or enlarge any building or structure within the outer boundary lines of the interim flood protection area located in Mill Creek Canyon. The ordinance was adopted because the County determined it was required for the immediate preservation of the public health and safety, and it was extended several times. A little more than a month after the ordinance was adopted, the Church filed a complaint in Los Angeles County Superior Court alleging that Ordinance No. 11,855 denied the Church all use of Lutherglen and seeking damages for loss of use under each count. The defendants moved to strike the portions of the complaint alleging that the ordinance denied all use of Lutherglen. The Superior Court granted the motion to strike. The California Court of Appeal affirmed, and the California Supreme Court denied review. The Church appealed to the United States Supreme Court, which noted probable jurisdiction.
View caseZara Zhang applied for a variance to post a political sign larger than the city code allowed. The board refused. She challenged the denial as viewpoint discrimination within an unprotected category of speech, arguing the ordinance singled out certain messages while permitting others of equal size.
In 1990, the City of Ladue, Missouri, a suburb of St. Louis with a population of almost 9,000 and an area of about 8.5 square miles of which only 3 percent is zoned for commercial or industrial use, maintained an ordinance that prohibited homeowners from displaying any signs on their property except residence identification signs, for sale signs, and signs warning of safety hazards. The ordinance permitted commercial establishments, churches, and nonprofit organizations to erect signs for churches, religious institutions, and schools as well as commercial signs in commercially zoned districts that were not allowed at residences. Margaret P. Gilleo owns one of the 57 single-family homes in the Willow Hill subdivision of Ladue. On December 8, 1990, she placed on her front lawn a 24- by 36-inch sign printed with the words "Say No to War in the Persian Gulf, Call Congress Now." After that sign disappeared, Gilleo put up another but it was knocked to the ground. When Gilleo reported these incidents to the police, they advised her that such signs were prohibited in Ladue. The city council denied her petition for a variance. Gilleo then filed this action under 42 U.S.C. § 1983 against the City, the mayor, and members of the city council. The District Court issued a preliminary injunction against enforcement of the ordinance. Gilleo then placed an 8.5- by 11-inch sign in the second story window of her home stating "For Peace in the Gulf." The Ladue City Council responded to the injunction by repealing its ordinance and enacting a replacement. The new ordinance contained a general prohibition of signs and defined that term broadly. The new ordinance prohibited all signs except those that fall within one of ten exemptions. Gilleo amended her complaint to challenge the new ordinance. The District Court held the ordinance unconstitutional, and the Court of Appeals affirmed. The Supreme Court granted the City of Ladue's petition for certiorari.
View caseZola Zanders owned beachfront land rendered unusable by a new coastal setback rule. She requested a variance to build a home. The agency denied relief, claiming the regulation advanced legitimate planning goals without eliminating all economic use of the parcel.
In 1986, petitioner David H. Lucas purchased two residential lots on the Isle of Palms in Charleston County, South Carolina, for $975,000. He intended to construct single-family homes on the parcels, which at the time were zoned for such use and required no building permit for development. No portion of the lots qualified as a critical area under then-existing coastal zone legislation. Subsequently, in 1988, the South Carolina Legislature enacted the Beachfront Management Act. The legislation established a baseline and prohibited construction of occupable improvements seaward of a line drawn 20 feet landward of that baseline, directly affecting Lucas's parcels by barring any permanent habitable structures. Lucas filed an action in the Court of Common Pleas alleging that the Act's restrictions effected a taking of his property without just compensation. Following a bench trial, the court determined that the prohibition rendered the lots valueless and ordered the state to pay just compensation in the amount of $1,232,387.50. The Supreme Court of South Carolina reversed the trial court's judgment. It accepted the legislature's findings that new construction threatened public resources and concluded that a regulation designed to prevent serious public harm could not constitute a taking. The United States Supreme Court granted certiorari to review the South Carolina Supreme Court's decision.
View caseZion Zhao sought a height variance for an office building. The city granted it only if Zhao recorded a public walkway easement across the site. Zhao sued, claiming the condition lacked an essential nexus to any impact caused by the extra stories.
Petitioner Florence Dolan owns a plumbing and electric supply store located on a 1.67-acre parcel of land in the business district of the city of Tigard, Oregon. The store is on a parcel that includes a 9,700-square-foot building, and Fanno Creek flows through the southwestern corner of the lot within the 100-year floodplain. In the early 1970's, the city developed a comprehensive plan for managing surface water drainage in the Fanno Basin serving the area where the property is located. The comprehensive plan also contained provisions for a pedestrian and bicycle pathway system throughout the city, one of which was to follow along Fanno Creek. In 1988, petitioner applied for a permit to expand her store and pave the parking lot. The city planning commission granted the permit but required petitioner to dedicate a portion of her property for the construction of a public greenway along Fanno Creek and an additional 15-foot strip of land adjacent to the greenway for a pedestrian and bicycle pathway. The dedication required encompasses approximately 7,000 square feet, or roughly 10% of the property. Petitioner requested a variance from the city's dedication requirements. The planning commission denied the variance, and the city council affirmed the denial. Petitioner then filed suit in Oregon state court claiming an uncompensated taking. The Oregon trial court upheld the city's requirements. The Oregon Court of Appeals affirmed, as did the Oregon Supreme Court. The United States Supreme Court granted certiorari. The question presented was what standard of review applies to a claim that a city's exaction of a dedication of private property as a condition of a building permit constitutes an uncompensated taking of property in violation of the Fifth Amendment.
View caseZion Zavala wanted to live with her grandsons in a single-family zone that limited occupancy to nuclear families. The city denied the variance. She challenged the ordinance as an unconstitutional restriction on the fundamental right to family living arrangements.
In early 1973, Mrs. Inez Moore received a notice of violation from the city of East Cleveland. The notice stated that her grandson John Moore, Jr., was an illegal occupant of her home. It directed her to comply with the housing ordinance. Mrs. Moore lived in her East Cleveland home together with her son Dale Moore, Sr., and her two grandsons Dale Moore, Jr., and John Moore, Jr. John came to live with her after his mother's death when he was less than one year old. When she failed to remove John from the home, the city filed a criminal charge against her. Mrs. Moore moved to dismiss the charge. She claimed that the ordinance was constitutionally invalid on its face. Her motion was overruled. Upon conviction she was sentenced to five days in jail and a $25 fine. The East Cleveland ordinance limited occupancy of a dwelling unit to members of a single family. The ordinance defined family to include only a husband or wife of the nominal head of the household, unmarried children of the head or spouse provided they have no children residing with them, a parent of the head or spouse, or not more than one dependent child of the head or spouse along with that child's spouse and dependent children. The Ohio Court of Appeals affirmed the conviction after giving full consideration to her constitutional claims. The Ohio Supreme Court denied review of the case. The United States Supreme Court noted probable jurisdiction of her appeal.
View caseA condition on a variance is a taking unless it bears an essential nexus to impacts created by the proposed development. The easement must directly mitigate harms that would justify denying the variance outright. When the condition serves a preexisting public plan rather than project-specific effects, the nexus is absent and compensation is required.
Supporting sources
No. When the government has already imposed a concrete condition on a permit or variance, the claim is ripe. Courts do not require owners to pursue futile administrative steps that the ordinance does not provide.
Supporting sources
A variance allows noncompliance based on unique hardship to the parcel. A special exception is a use the ordinance itself permits when stated conditions are met. The board has no discretion to deny a qualifying special exception but retains discretion over variances.