Variances: The zoning escape hatch

One of the first questions to ask in considering a proposed development must be: “What do the zoning regulations allow?” Generally speaking, zoning regulations establish building envelops on your property through the imposition of setbacks, height restrictions, and other dimensional limitations, while prescribing the allowed uses of the property by defining “permitted” and “conditional” uses. If a proposed project violates the dimensional requirements or is not an allowed use under the regulations, a landowner must typically secure a “variance” to proceed with the proposed development. 24 V.S.A. § 4469(a); see also In re Ray Reilly Tire Mart, 141 Vt. 330, 332 (1982) (recognizing that Vermont law authorizes both use variances and dimensional variances).

Variances are not frequently granted. “Variances, by their very nature, contravene the goal of zoning. They are ‘individual exceptions to generally applicable rules of zoning, the purpose of which is to bring about the orderly physical development of the community.’” In re Mutschler, 2006 VT 43, ¶ 7. Variances act as “an escape hatch from the literal terms of an ordinance which, if strictly applied, would deny a property owner all beneficial use of his land and thus amount to confiscation.” In re Maurice Memorials, 142 Vt. 532, 535 (1983). Securing a variance is therefore a difficult task. A landowner must demonstrate satisfaction of five separate statutory criteria. If just one criterion is unsatisfied, the variance must be denied. In re Dunnett, 172 Vt. 196, 200 (2001).

Briefly, a landowner must demonstrate the following to obtain a variance:

  1. that “unique physical conditions” (such as lot shape, or peculiar topographical conditions) create an “unnecessary hardship” for the landowner;
  2. that there is “no possibility” that the property can be developed without a variance, which is “necessary to enable the reasonable use of the property”;
  3. that the landowner did not create the unnecessary hardship;
  4. that a variance would “not alter the essential character of the neighborhood” or impair development on adjoining lots; and
  5. that the variance is the minimum necessary to afford relief and is the “least deviation possible” from the zoning regulations.

24 V.S.A. § 4469(a). While each requirement presents a potential pitfall to a proposed development, the second criterion is frequently fatal to a landowner’s efforts. The Court must deny a variance “if any reasonable use can be made of the property which is in strict conformity with the zoning regulations.” In re DeRoy Variance Applications, No. 14-1-09 Vtec, slip op. at 4–9 (Vt. Envtl. Ct. Feb. 16, 2010) (Durkin, J.). Thus, if a landowner currently makes use of his or her property, but seeks a variance to add a second structure or ancillary use, the variance should be denied. Id. A variance must similarly be denied if the project is not tailored as much as possible to minimize the conflict with the zoning regulations. A two-foot setback encroachment will not be sustained if a one-foot encroachment is viable. Id.

Notwithstanding the obvious difficulty in satisfying the variance standards, there are ways a landowner can pursue a project that exceeds the dimensional limitations or is not listed in the zoning regulations as a permitted or conditional use. Creative legal solutions exist, and opposition can be minimized through project planning and outreach. Before submitting variance applications, landowners should consult counsel and consider all of their options. A initial denial can foreclose the possibility of pursuing the project in the future. See In re Carrier, 155 Vt. 152, 157 (1990) (describing the circumstances under which a zoning board may not consider a successive application).