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What is a Variance?

A variance is a waiver or modification of zoning regulations made necessary because some unique aspect of a particular parcel makes application of the regulation burdensome or unfair. Variances may be granted to adjust such zoning standards as setbacks or height limitations. The Utah Code authorizes local governments to grant variances (See UTAH CODE ANN. §§ 10-9a-702 and 17-27a-702).

How Do I Apply for a Variance?

The property owner must apply for a variance, and has the responsibility to prove that a variance ought to be granted. The application will be heard by the local government’s "appeal authority," which may be a board of adjustment or an appointed hearing officer. The appeal authority may impose conditions to mitigate any negative effects of a variance. A variance may be granted if all of the following five standards are met:

1. Literal enforcement of the land use ordinance would cause an unreasonable hardship for the applicant that is not necessary to carry out the general purpose of the ordinance.
2. There are special circumstances attached to the property that do not generally apply to other properties in the same district.
3. Granting the variance is essential to the enjoyment of a substantial property right possessed by other property in the same zone.
4. The variance will not substantially affect the general plan and will not be contrary to the public interest.
5. The spirit of the zoning ordinance is observed and substantial justice is done.

All five criteria must be found in favor of the variance in order for it to be valid. See Wells v. Salt Lake City Board of Adjustment, 936 P.2d 1102 (Utah Ct. App. 1997).   A "hardship" cannot be solely economic, and cannot be created by the property owner. The "special circumstances" also cannot be economic or self-imposed, and must be unique to the property, not something that all properties in the area share. A variance may not be granted to allow a prohibited use, or alter a health or safety regulation (such as a building or fire code). Finally, a variance should not be granted simply because a property owner disagrees with a regulation and doesn’t want to comply with the requirement.

What if I Don’t Get a Variance?

A decision granting or denying a variance may be appealed to the District Court. Any person affected by the decision may appeal.

A property owner may also propose a change in the zoning ordinance itself. This approach may be appropriate when a particular use is prohibited, or if several property owners are experiencing the same hardship.

These guidelines are provided by the Office of the Property Rights Ombudsman in an effort to provide better understanding of constitutional private property protections and the land use regulation process. They are not meant to constitute legal advice. They simplify and broadly generalize complex issues of law. Questions should always be directed to your attorney for specific advice. Suggestions and comments are always welcome.