A variance in real estate is a deviation from current zoning requirements. You need one because your property does not conform to existing zoning laws in your area. Dealing with this can be a long and expensive process. That said, the two types are:
- Area – the lot dimensions or topography does not conform
- Use – restrictions create a hardship as to the way the owner can use the property
Most variances do not expire but run with the land, but a few (especially use) do. If you have questions about the zoning of your property it should be in the public record with your township’s zoning department.
Why Do I Need a Variance in Real Estate?
You need a variance if you want to make changes to your property that violate zoning laws. Your project may be outside these restrictions, and you don’t even realize it. Some common issues include:
- Adding or expanding a driveway
- Building an addition to your home
- Building a room over your garage
- Adding a pool in your backyard
- Buying a shed for your backyard
All of these may violate some local zoning laws. The best thing to do is to check your town’s zoning ordinances before you make any changes to your property. It may surprise you what you can and can’t do to your own home.1
A non-conforming structure once was within zoning laws, but now is not. This issue is common, and a couple of examples are:
- Local regulations change
- A prior owner got a variance for an addition or improvement
Typically, old houses have code violations. Old wiring, lead paint, asbestos siding, underground oil tanks are just a few things that may have been acceptable when the house was built but not now. When the owner sells the house, they must bring the house up to code or get variances.
Another example is a house that is on a highway. When it was built the house was in a residential neighborhood, but the zoning changed to commercial.
A setback refers to the distance a structure is from the property line, and you need a variance if that building is too close. These violations can cause serious problems. Sheds, pools, driveways, and home additions all commonly go over setback limits.
Go to your town’s planning board and find out what the setback limit is in your area before you make an addition to your home or even buy a shed to put in the backyard. It is much harder to get a variance after the fact than to plan well in the beginning
Difference Between Area and Use
Towns grant area variances for an odd land configuration, while use variances authorize the owner to use the property for something not normally permitted.
- Area – Usually for an odd-shaped lot that goes over a setback limit. Another example is a sloping lot that goes over a building height restriction.
- Use – Authorizes a land use not normally permitted. It is like a special use permit.
In either case, the lot must contain special conditions that make hardship too difficult to comply with normal ordinances.
How do you get a zoning variance in Real Estate?
How to get a zoning variance can be a long and expensive process. If you prepare properly you improve your chances of navigating the process successfully.
- Take a step back and see if you can revise your plans so that you don’t need one.
- Learn what your town’s zoning requirements.
- Decide if you need an area or a use variance.
- Get a survey.
- Prepare architectural plans.
- File your application with the appropriate authorities.
- Notify neighbors about your proposed changes.
You should do everything you can to revise your plans to comply with local regulations. If your plans really can’t comply with local zoning laws, then you should prepare carefully for to present your case to your township zoning authorities.3
Justify Zoning Variance in Real Estate
In order to justify the zoning variance, you must show hardship. Don’t confuse your personal circumstance with a characteristic of the property. What do we mean by the hardship of the property? Let’s examine some arguments that that historically are successful.
- A particular physical characteristic of the property, such as shape, brings a specific hardship to the owner when the town enforces a strict reading of the zoning laws.
- The condition of your property is unique from other lots in your area and makes it necessary for a variance.
- You do not base application solely on a desire to make more money.
- No one with an interest in the property made the hardship.
- If the township grants the variance it will not harm any specific property owners in the area or damage the neighborhood or other specific properties in the area.
- The proposition will not cause a hazard, endanger public health, diminish property value, increase traffic, create a nuisance, or increase public expenditures.
Each local area has its own requirements. Meet with officials in your area for guidance on what you should submit. If your application is simple and you know the area well, you may be able to complete and submit it yourself. On the other hand, if it is complex you should consider hiring an attorney.4
Do Variances Expire?
Most variances don’t expire, but a few do. Once the township grants an area variance and the structure is built, it’s unreasonable to expire the ruling. There are, however, two common expirations that you need to consider:
- Most of the time the town includes a window of time to complete a project, such as adding a deck, pool, or bedroom. If it’s not completed in that timeframe, then the variance expires.
- Many use variances expire, such as a dentist runs his business out of his home. When he retires then the house returns to strictly residential use.
If you sell your house consult your agent and provide them with all your documentation. If you are buying a house, these issues should come up during the title search if there is a problem.5
Property Variance in Real Estate Cost
How much property variance costs depends on how complicated the issue is. Application fees usually run about a couple of hundred dollars, but that is the least of your expenses. Often you need:
This sounds expensive because it is. Even for a simple application, you can expect to pay at least $1,000. More complicated projects run well into the thousands. Beyond you laying out money, the process takes a lot of time and planning.6
Find Property Variance in Real Estate
Variances should be easy to find because they are a public record. Your township should have it on file with their zoning department. For a transaction:
- The seller should disclose any in the listing.
- The title search should find any zoning issues.
Properly obtained area variances should run with the land and not be a problem. Use variances may end with the sale, and if you want to use the property for the same purpose you may have to submit a new application.