Land Use & Zoning FAQs: Is Obtaining a Variance a Big Deal?
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Land Use & Zoning FAQs: Is Obtaining a Variance a Big Deal?

Posted February 11, 2014 at 1:37 PM

Question:  I am anxious for new construction to begin on my home but I just learned from my builder that I am going to need a variance because the house is one (1’) foot too close to the side yard property line.  Is getting the variance going to be a big deal?

Answer:  Quite possibly “yes” — getting a variance can be a “big deal”.  When the Montgomery County Department of Permitting Services reviews a building permit application, it reviews the plans for new construction to determine whether all development standards are satisfied, including yard requirements.   Every zone has different development standards which are listed in the Zoning Ordinance.   These development standards include minimum front, rear, and side yard requirements, among others.  If the setback from the street or from adjoining properties is less than the minimum setback for the zone in which the property is located, a variance from the strict application of the Zoning Ordinance is necessary.

Variances are granted by the Montgomery County Board of Appeals.  This involves a formal application to the Board and a public hearing.   As the applicant, you have a heavy burden of proof.  First, you must prove that there are exceptional conditions peculiar to your property (perhaps an unusual shape) that make it uniquely different from other properties and that, by virtue of its unique characteristics, the strict application of the regulations would result in “peculiar or unusual practical difficulties” or “exceptional or undue hardship” upon you as the property owner.  You must then prove that the variance you are requesting is the minimum variance that is necessary to overcome the exception conditions that make the variance necessary, that it can be granted without impairment to the master plan, and that it will not be detrimental to your neighbors’ use and enjoyment of their properties.

The Board of Appeals is very strict in its application of the law.  Even if your neighbors are perfectly fine with your plans, you need the extra bedroom space for your growing family, or the interior floor plan simply works best if the new family room extends off one particular side of the house, those reasons, alone, are not sufficient justification for the Board to grant a variance.   A carefully constructed argument that focuses on the statutory provisions is essential to win your case.

Miller, Miller & Canby has represented land owners and developers for over 65 years. Contact an MM&C zoning attorney if your property requires a variance.  For more information on the Land Use & Zoning practice at Miller, Miller & Canby, click here.