Property owners or project proponents may be lulled into complacency when their local planning department tells them, "Don't worry about that zoning code requirement. We will just give you a variance." However, this statement actually can be more dangerous than comforting. While a variance may be easy to attain if a project enjoys political support, it can be difficult to defend if challenged in court.
The requirements for variances under California law are very strict. As a result, variance approvals are often overturned in litigation due to insufficient findings or a lack of relevant evidence to support the findings. A project opponent may seize upon the project proponent's reliance on a variance as a weakness to be exploited in the opponent's efforts to overturn the project. Therefore, project proponents--as well as engineers, planners, and lawyers--must 1) be mindful of the strict requirements for variances and their associated risks, 2) carefully craft variance findings to meet the applicable legal standards, and 3) consider alternatives to a variance that are more defensible if challenged.
A variance is a safety valve preventing a property from becoming unusable if the zoning code were strictly applied. It protects against an unconstitutional taking and allows the owner to enjoy the benefits afforded to other properties in the applicable zone.1 One typical use of a variance is to provide relief from design or development standards--such as height, density, setback, floor area ratio, parking, or other requirements--if those standards would prevent a property owner from using the property at issue.
Some jurisdictions may grant a variance to allow a land use that would otherwise be prohibited, such as a commercial use in a residential zone. This type of variance is referred to as a use variance. Charter cities2 can approve these variances if permitted by their charter and zoning code.3 In contrast, state law prohibits a general law city or county from granting use variances.4
Over the past four decades, case law addressing variances has evolved considerably. Prior to the mid-1960s, courts generally deferred to agencies' decisions and routinely upheld variances. Indeed, as of 1966, no reported case had ever reversed a variance grant.5 However, this all changed with the California Supreme Court's landmark decisions in Broadway Laguna Homeowners Association v. Board of Permit Appeals6 and Topanga Association for a Scenic Community v. County of Los Angeles.7
In these decisions, the supreme court expressed its concern that if variances were routinely granted without satisfying the legal prerequisites, inferior administrative boards, such as planning commissions, could undermine the legislative role of a city council or board of supervisors by essentially rewriting the zoning code on an ad hoc basis.8 Therefore, the court announced new, more stringent standards for variances to ensure that variances are the exception rather than the rule. Departing from the deferential treatment applied in earlier cases, the court stated that judicial review of variances could no longer be "perfunctory or mechanically superficial."9 Instead, the court required agencies to adopt written findings, supported by substantial evidence in the record, that demonstrate compliance with each of the statutory criteria for a variance.
State law requires specific findings for granting a variance. For general law cities and counties, the State Planning and Zoning Law10 mandates that a variance may be granted only "when, because of special circumstances applicable to the property, including size, shape, topography, location or surroundings, the strict application of the zoning ordinance deprives such property of privileges enjoyed by other property in the vicinity and under identical zoning classification."11 Charter cities may adopt their own standards for variances;12 however, most jurisdictions have adopted requirements that mirror state law.13 Other typical requirements are that the variance be consistent with the purpose and intent of the zoning code, consistent with the general plan, and not injurious to the public or surrounding properties.14
Generally, the findings for a variance must meet a three-prong test. Applicants must show that 1) they will suffer practical difficulties and unnecessary hardships in the absence of the variance, 2) these hardships result from special circumstances relating to the property that are not shared by other properties in the area, and 3) the variance is necessary to bring the applicants into parity with other property owners in the same zone and vicinity.
The first finding, the hardship prong, generally is evaluated based on economics and whether the property can be put to "effective use" without the variance.15 A variance is not intended to be used for the purposes of convenience or to increase the value of a property. If a property can be put to effective use, consistent with its existing zoning, the fact that a variance would make the property more valuable or increase the income of the owner is immaterial.16
The Second District Court of Appeal addressed the hardship prong in Stolman v. City of Los Angeles. The variance applicant in Stolman operated a gas station in Santa Monica Canyon.17 The property was zoned for single-family uses only, but the gas station--which had been in operation since 1925--was grandfathered as a legal nonconforming use. The applicant began detailing cars, and the city cited the applicant for illegally operating a car wash. In response, the applicant requested a variance for the detailing services, which the city approved.18
Nevertheless, the court overturned the variance based on a lack of hardship justifying the variance. The court viewed the key issue as whether the car-detailing operation was either so crucial that the property owner would "face dire financial hardship" without the variance, or the owner sought to provide additional services simply to make the gas station more profitable. Holding that the evidence in the record was insufficient to support a finding of financial hardship, the court noted that although the applicant represented that he made a profit of eight cents per gallon of gasoline, he did not state how many gallons were sold or whether the profit was net or gross. Moreover, the applicant did not provide any information from which to determine whether the profit was so low as to amount to "unnecessary hardship." To the contrary, more than one person testified that the applicant sought the variance "not just to survive, but [to] earn even more money."19
The Stolman case exemplifies the strict approach most courts have taken with respect to hardships, highlighting the need for the applicant to document hardships with evidence in the record. The Stolman court suggested that this evidence include detailed financial documentation, creating concern for applicants who do not want to publicly divulge sensitive financial information. However, in contrast to Stolman, the court in Committee to Save the Hollywoodland Specific Plan v. City of Los Angeles held last year that applicants do not need to address hardships solely in economic terms but can take into account other factors, such as safety hazards.20 The court did so in ruling on a specific plan exception, which is similar to a variance. Thus, courts have differed over the factors and level of hardship that must be present in upholding a variance or plan exception, depending on the facts and equities of a particular case.
Some property owners have attempted to create a hardship to justify a variance, but courts have roundly condemned this practice.21 In one case, a property owner deliberately sold a portion of its land to create a claimed "hardship" that allegedly justified a front-yard tennis court prohibited by the zoning code.22 Not surprisingly, the court upheld the city's denial of the variance.23 Similarly, in another case, a court held the developer's use of "attractive architectural features" and voluntary adoption of stricter building standards were self-imposed hardships that did not justify a variance from floor-area-ratio requirements.24 Self-imposed hardships also include circumstances in which property owners purchase property in anticipation of obtaining a variance for a use forbidden at the time the owners bought the property.25 Hardships created by the previous owner of a property also may be considered self-imposed and thus are insufficient for a variance.26
The "special circumstances" finding required for a variance--the second prong of variance analysis--involves distinguishing the property from other properties in the zone. Classic special circumstances are unusual physical characteristics of the property, such as size, shape, topography, location, or surroundings.27 For example, courts have found special circumstances when a lot was irregularly shaped and graded, had no real backyard, and faced a winding street.28 These special circumstances warranted the granting of a variance from building setback and fence height requirements.29 Similarly, a variance from off-street parking requirements was appropriate because of the special circumstances involving a parcel partially submerged by the San Francisco Bay. To meet the parking requirements, the owner would have needed to fill the submerged area and demolish an existing building on the parcel.30 Special circumstances also can include existing historic structures and landscaping.31
The particular characteristics of the expected occupants or users of a building can be a special circumstance. For example, special circumstances supported a reduction in parking for a neighborhood synagogue, to which most regular attendees walk rather than drive.32 Another court found that reduction in parking for an apartment building was supported by the fact that most prospective residents would not own cars.33 Close proximity to other parking facilities can also be a special circumstance supporting a parking variance.34
Special circumstances do not necessarily need to be physical. Overlapping regulations that create a disparate impact can be grounds for a variance.35 In Craik v. County of Santa Cruz, a Federal Emergency Management Act (FEMA) regulation prohibited the owner of a beachfront parcel from using the ground floor as living space.36 The local zoning code also imposed various height, setback, and floor-area-ratio limits that further constrained development of the parcel.37 The court found that although the FEMA and related zoning regulations applied in the abstract to all owners in the applicable zone, in reality the regulations only affected a few vacant parcels because most of the other properties in the zone were already developed.38 The court concluded that this disparity was a special circumstance that could support a variance.39
Finally, in order to qualify as a special circumstance, there must be a "logical relationship" between the condition identified and the variance requested.40 This means that the unusual condition must cause the hardship. For example, in Broadway Laguna, the applicant presented evidence the property had unusual topsoil conditions; however, he was requesting a variance from floor-area-ratio requirements, and he failed to show any link between the topsoil and the need for additional floor area ratio. Therefore, the court concluded a variance was improper.41 In another case, a property was closer to the freeway than other similarly regulated properties, but the findings failed to provide a rationale for why the property's proximity to the freeway justified a height variance.42
The third finding establishes that the variance is necessary to bring the property owner into parity with other properties in the same zone and vicinity. Conversely, a variance cannot grant the applicant a special privilege.43 Thus, the particular characteristics of a property are not by themselves sufficient to support the grant of a variance.44 The applicant must show that these characteristics differ from other similarly situated properties.45 For example, in Topanga, the staff report described the property's "rugged features" but did not conclude that the property was any different from neighboring land.46
Therefore, agencies must examine the characteristics of similarly situated properties in the same zone and geographic area.47 For example, a yard variance to allow a 4,000-square-foot residence might not be justified if other homes in the neighborhood are generally half that size. In one case dealing with a variance for a hotel, the court upheld a variance because the agency had compared the hotel with a competitor hotel in the same zone and concluded that the variance was necessary to create parity between them.48
Additionally, in Stolman, part of the court's reason for overturning the variance allowing detailing operations at a gas station was because the similarly situated properties relied upon by the city to approve its variance findings were not in the same zone or even the same city.49 The closest property was in Eagle Rock, over 19 miles from the gas station, which was located in Santa Monica Canyon.50 The court found that the city's reliance on these other properties was "not only a reach but [was] an irrational stretch."51 With Stolman and other case law as a guide, counsel should ensure that variance findings provide sufficient detail regarding similarly situated properties in the same zone and located as close as possible to the subject property.
Many agencies permit or even require the applicant to prepare an initial draft of the agency's written findings to support the variance. Even when the agency drafts its own findings, it is essential that the applicant review them to ensure the variance findings are tailored to the applicable legal requirements.
One common problem with variance findings is that an applicant or planning staff will often focus on project benefits in order to "sell" the project to the decision makers and the public, ignoring the relevant legal requirements. However, courts have been clear that project design, amenities, benefits to the community, and the superiority of the proposed project design to ones developed in conformity with zoning regulations are irrelevant when considering whether to grant a variance.52 As one court explained, the agency cannot use a variance to balance one code provision against another and "earn immunity from one code provision merely by overcompliance with others."53 Variance findings should demonstrate that the agency based its approval on the relevant legal requirements and did not simply grant a variance because it favored the particular project.
Variance findings should be as detailed as possible, providing specific facts 1) demonstrating the hardship--preferably the economic hardship, 2) describing the unusual circumstances and showing that those circumstances are different from other properties, and 3) showing that the unusual circumstances cause the hardship. Furthermore, the findings should provide details about many properties in the same zone and vicinity, as close as possible to the property, to show that the variance is necessary to bring the property into parity with others similarly situated.
Also, it is essential that the administrative record contain evidence in support of those findings. This evidence can be in the form of photographs, view simulations, maps, technical reports from experts, and other documentation. Counsel should submit the evidence to the agency as part of the administrative proceedings relating to the variance. The law prohibits extra-record evidence from being submitted after the variance has been challenged in court.54
Alternatives to Variances
Because variances are one of the most difficult entitlements to defend in court, it is important to consider alternatives that are more legally defensible. For example, an applicant can request a zone change or a zoning code amendment. A zone change constitutes a legislative approval, even if it affects only one single parcel, and under state law is afforded more deference than an agency's adjudicative decisions.55 Additionally, a zone change does not require explicit findings,56 is entitled to a strong presumption of correctness, and can only be overturned "if it has no reasonable relation to the public welfare."57 However, although a zone change is easier to defend in court, the drawback is the approval process is more time consuming. A zone change takes longer because a public hearing must be held before the planning commission and legislative body of the agency (such as the city council or board of supervisors) prior to approval, unlike a variance, which can be approved by a planning commission or a hearing officer.58 Furthermore, some agencies may be reluctant to process zone changes without an elected official sponsoring the amendment.
"Variance-light" procedures are another alternative adopted by many jurisdictions. These allow minor adjustments and modifications of development standards but do not require the same strict findings as those needed for a variance. For example, the City of Los Angeles allows a zoning administrator to approve adjustments and minor modifications in yard, area, building line, and height requirements, sometimes even without a public hearing if the matter is not controversial.59 Likewise, the County of Los Angeles has a parking permit procedure that allows the planning director to reduce the amount of required parking spaces if certain requirements are met.60 The requisite findings for these adjustments are similar but less strict than for a variance.
Nevertheless, it is presently unclear whether a court would be more deferential regarding these approvals or would apply the same standards for unnecessary hardships and special circumstances otherwise applicable to variances. One of the only reported cases that has addressed a variance-light procedure (in that case, a specific plan exception) generally applied the same hardship and special circumstances standards that apply to variances.61 Thus, an applicant should always ensure that adequate written findings address each requirement of the applicable code and the record contains evidence supporting these findings.
Other alternatives may be available for relief from otherwise applicable restrictions. Depending on the jurisdiction, these alternatives may be included in overlay zones or other zoning provisions. Furthermore, the recently strengthened density bonus law may provide relief from certain requirements for residential projects that incorporate affordable housing.62 This relief involves permitting additional density beyond code mandates as well as other concessions and incentives, such as a reduction in setbacks and parking requirements. These incentives should be considered as an alternative to a variance.
Relying on a variance is always a matter of calculated risk. A variance can speed the approval of a project initially but can dramatically slow down the process if the variance is challenged and overturned by a court. With this risk in mind, an applicant should gauge potential opposition before applying for a variance. If a variance is opposed, the applicant should consider changing course and pursuing an alternative entitlement strategy. In any event, the applicant should not blindly rely on planning staff or other government officials to ensure the record is adequate. Considering variance alternatives and bullet-proofing variance findings can make the difference in preventing a project from being overturned in court and incurring years of costly delays.