Most people, at some point in their lives, will make a visit to their town’s Zoning Board of Appeals. The ZBA’s job is to decide cases in which a citizen requests that the town’s zoning rules not be applied to their particular situation. When relief is granted, the applicant is said to have received a variance.

Zoning regulations have been in place in most town’s since the 1950s. Zoning regulations are laws which regulate development in order to promote the health, safety and welfare of the town. For example, most towns have zones which require the lot area to be a certain size in order to serve as a building lot.


If you owned a lot that was too small for the zone in which it is located, you could request a variance from the local ZBA. Usually, an applicant would seek to convince the ZBA that their proposal would not adversely affect their neighbors or town and that the proposed variance is not greatly different from other situations in the area around the property.


Additionally, the applicant must prove hardship. This has proven to be an elusive concept and the courts have spent much time trying to specifically define what is meant by hardship. It is often defined by what it is not. For instance, it cannot be self-created and the hardship cannot be financial. A hardship is usually defined as something which arises from the application of the zoning regulations to circumstances beyond the control of the applicant.


If you find this definition unsatisfying, then you are in the majority. Land use attorneys and ZBAs are repeatedly frustrated by the concept and with good reason. Before a variance can be granted, a hardship must be proven and trying to prove what you do not clearly understand is like trying to hit a moving target.


Those who have land which is grandfathered can avoid the problem altogether. This is a situation where the configuration of the land predates zoning. For instance, if a lot was laid out prior to the enactment of zoning in the town and the lot area is smaller than that currently required by zoning, the lot is called non-conforming.


If certain other requirements are met, the lot could be built on without a variance. Those with non-conforming lots can avoid the variance application altogether and will not have to deal with the hardship problem.

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