By Jones Osborn II

The existence of rules creates the need for exceptions. A variance is an exception to the rules contained in the zoning code. Because the zoning code is rigid and cannot take into consideration the specific attributes of each and every parcel of real property, variances are available to do justice in cases where the strict application of the rules would be unfair or inappropriate.

Variances are normally granted by the Board of Adjustment. However, in some of the larger cites variances are granted by the zoning administrator, with appeals being decided by the Board of Adjustment.

Use Variances. The typical municipal or county zoning ordinance contains thousands of rules, both broad and specific, restricting what can be done with real property. Some of these rules limit the use of the property, depending on the zoning category. For example, some property is zoned for residential uses, other property is zoned for commercial uses, and so on. Exceptions to rules governing the use of the property are referred to as "use variances."

Area Variances. Other parts of the zoning code regulate such things as setbacks, heights, minimum lot sizes, parking requirements, and so on. Exceptions to these rules are referred to as "area variances."

There is a difference of opinion as to whether relief from a density limitation requires a "use variance" or an "area variance." On the one hand, density limitations would appear quite similar to such things as setbacks, height limitations, and lot coverage limitations, all of which are clearly area variances. On the other hand, increasing density is almost the same as changing the zoning to a higher zoning category, because one of the main differences between zoning categories is density.

The distinction between use variances and area variances is important, because Arizona law provides that the Board of Adjustment may grant area variances, but is prohibited from granting use variances.

Requirements For A Variance. Under Arizona law, a variance may be granted where the strict application of the zoning ordinance will deprive the property of the privileges enjoyed by other property with the same zoning because of "special circumstances." These "special circumstances" include such things as the size, shape, topography, or location of the property or its surroundings.

As an example, a variance might be granted reducing the side yard setback if a lot is unusually narrow. This would be a typical area variance.

Self-Imposed Hardship. Variances cannot be granted if the "special condition" is self-imposed. For example, if a property owner sells off part of his lot, he cannot later get a variance from the side yard setback on grounds that the lot is too narrow, because he created the problem himself by selling off part of his lot. However, if the lot is too narrow because the city condemned part of it to widen the street, a variance would be available.

Specific Jurisdictions. Each jurisdiction has its own particular requirements for obtaining a variance, although they all generally follow the criteria described above. In Phoenix, for example, the property owner must meet the following four requirements:

1. There must be special circumstances or conditions applying to the property which do not apply to other properties in the zoning district.
2. The special circumstances must not have been created by the owner.
3. The variance must be necessary for the preservation and enjoyment of substantial property rights.
4. The variance will not be materially detrimental to the neighborhood or to the public welfare in general.

The specific requirements in other jurisdictions can be determined by checking the applicable zoning code.

Conclusion. If there is something special or unusual about your property which makes it difficult to comply with the existing zoning, you may wish to consider applying for a variance. However, variances are not available to change the use of the property or in cases where the problem was created by the property owner.