Every county, city or municipality has planning and zoning ordinances in place, and applicants proposing projects before planning or zoning boards must adhere to these regulations. Although the actual laws and requirements vary according to the local form of governing body, applicants may submit hardship variances to prove that application of the law results in an inability to use or subdivide the property, thus causing them financial or other forms of hardship.
Planning and Zoning Boards
Applicants must determine whether a variance is needed for a planning board or a zoning board of adjustment. In some localities, these functions are combined in one board. The planning board makes decisions on the actual zoning of various areas of a municipality and hears residential and subdivision applications. The zoning board, as the board of adjustment, hears applications for proposals not permitted in a particular zone, and "adjusts" the zoning, if appropriate, on a case-by-case basis.
Hardship Variances
In general, the applicant must prove that granting a hardship variance will not harm the public interest, or that certain conditions do not allow the property to meet the planning or zoning ordinances. The applicant's health or other personal factors does not constitute a reason for granting the variance. The applicant must prove that special circumstances exist in a particular situation that does not apply to other properties in the same zoning area. Granting a hardship variance cannot bestow privileges denied to other properties or landowners in the same zoning class.
Procedure
The applicant must fill out and submit the application for a hardship variance with the appropriate board, citing all reasons for seeking the waiver. Generally, the applicant must pay a fee when submitting the application. A hearing is then scheduled before the board in which the applicant presents the case, and the board decides whether or not to grant the hardship variance. For all but the simplest hardship variance requests, legal representation at the hearing is advisable.
Public Hearing
The hearing before the appropriate board is held in public, and notice is generally given to landowners within a certain distance of the applicant's property. The applicant may hire professionals, in addition to an attorney, to make the case, including engineers, planners or traffic experts, depending on the situation. Nearby residents or commercial real estate owners or tenants may also testify at the hearing against or in favor of the application for the hardship variance. The board's decision may be approval or denial, or approval with certain conditions. Applicants have the right to appeal a board's decision in court.
