Question: When Is A Variance Not A Variance? Answer: When Everybody Is Doing It.
Posted on November 13, 2007
Filed Under Pittsburgh Legal Matters, Real Estate Law
You make an application for a building permit and the zoning officer turns you down. He cites a section of the municipal zoning ordinance which specifically prohibits what you want to do. He says you can apply to the zoning hearing board for a variance. Should you?
Ordinarily, a variance is granted when the ordinance imposes a hardship on the property owner - but not always. Sometimes building practices and styles have changed while the ordinance is never updated.
One local municipality’s zoning prohibited internal illumination of business signs. The objective was to have lights shining onto the sign, rather than from the sign toward adjoining properties. But over the years, variances were frequently being granted because the sign location made it impractical to mount a spotlight that would properly illuminate the sign. At the same time, sign technology improved and backlit signs became more aesthetically pleasing and easier on the eyes. By now, the overwhelming majority of signs in that municipality are internally lit. Nevertheless, a variance must still be obtained to get a building permit for a backlit sign.
If you are thinking about seeking a zoning variance, do an informal study of properties in your area. Note the address of every property nearby that appears to set a precedent for your proposed construction. If you wish, you can go to the zoning office and ask to look at the building permit files . Choose several of the most recent examples of the type of construction you wish to do. The inspector will tell you whether the owners needed a variance and what criteria were used in granting it.
Zoning appeals can be complicated and may involve legal principles. Unfortunately, this process may not always be user-friendly. This is why most landowners in zoning hearings are represented by lawyers. The board expects those appearing before it to be familiar with the ordinance and the applicable state law. Consulting a lawyer familiar with zoning, land development and construction law is always a good idea when contemplating an appeal.
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