Variances from the provisions of a zoning ordinance are perhaps the best known land use planning technique from the standpoint of the general public. They are, also, to both the general public and the bar, the most mis-understood zoning technique utilized today.
The Tennessee statute which governs the issuance of variances is Tenn. Code Ann. § 13-7-207(3). It makes plain that the only reason to grant a variance is because there is some exceptional physical feature of the property which justifies a relaxation of the zoning regulations applicable to that property. The idea is to demonstrate that the applicant's property is burdened by an exceptional feature not common to other properties in the surrounding vicinity.
Let's take a look at a short outline of the statutory requirements: The best place to start is the statute. Tenn.Code Ann. § 13-7-207(3) gives the Board of Appeals the power to grant variances. The following outline is a quick look at the complicated nature of obtaining a variance here in Tennessee. The board has the power to:
1. Authorize 2. upon an appeal 3. a variance 4. where by reason of exceptional a. narrowness b. shallowness c. shape (the time of the enactment of the zoning regulations) d. topographic conditions, or e. other extraordinary and exceptional situation or condition 5. the strict application of the ordinance would 6. result in a. peculiar and exceptional practical difficulties or b. exceptional or undue hardship upon 7. the owner 8. so as to relieve such difficulties or hardship; 9. provided that such relief may be granted [negative criteria] a. without substantial detriment to the public good b. without substantially impairing i. the intent and purpose of the zone plan ii. and zoning ordinance.
Item #6 is the so-called hardship clause. Notice that, contrary to the thinking of many, the applicant need not only demonstrate a hardship, but a hardship caused by some exceptional feature of the property itself. Something like a steep topographic break, a sink-hole, a small stream running at a unusual location, or something of the like would probably do. These things are, however, the exception and not the rule, so that not every application for a variance should be granted.
The Metropolitan Zoning Ordinance (MetZo) has these requirements for variances:
§ 17.40.370 Review standards.
In accordance with Tennessee Code Annotated Section 13-7-207, the board shall not grant a variance without an affirmative finding of fact on each of the following standards based on evidence presented by the applicant.
A. Physical Characteristics of the Property. The exceptional narrowness, shallowness or shape of a specific piece of property, exceptional topographic condition, or other extraordinary and exceptional condition of such property would result in peculiar and exceptional practical difficulties to, or exceptional or undue hardship upon the owner of such property upon the strict application of any regulation enacted by the ordinance codified in this title.
B. Unique Characteristics. The specific conditions cited are unique to the subject property and generally not prevalent to other properties in the general area.
C. Hardship Not Self-Imposed. The alleged difficulty or hardship has not been created by the previous actions of any person having an interest in the property after the effective date of the ordinance codified in this title.
D. Financial Gain Not Only Basis. Financial gain is not the sole basis for granting the variance.
E. No Injury to Neighboring Property. The granting of the variance will not be injurious to other property or improvements in the area, impair an adequate supply of light and air to adjacent property, or substantially diminish or impair property values within the area.
F. No Harm to Public Welfare. The granting of the variance will not be detrimental to the public welfare and will not substantially impair the intent and purpose of this zoning code.
G. Integrity of Master Development Plan. The granting of the variance will not compromise the design integrity or functional operation of activities or facilities within an approved planned unit development. (Ord. 96-555 §§ 10.8(E), 1997)An applicant for a variance from the Metro Board of Zoning Appeals, or for that matter, any local board of zoning appeals, must make sure that all the conditions for a variance, both state and local, are met. There is a strong legal argument that the local zoning ordinance may neither add to nor subtract from the legal requirements set by the state enabling legislation. But this esoteric legal argument, while probably correct, would most likely fall on the deaf ears of any local board (and its attorney), and rather than risk a denial, it is best to simply show how all conditions, state and local, are met, rather than argue over this arcane point of law.
Be aware also, that if all the properties in the vicinity suffer the same diability, then a variance is not really appropriate. If many properties are affected, then a zone change should be considered so that everyone similarly situated would get the same relief. If a variance is granted to only one of the affected property owners, then s/he has obtained a special privilege to use his/her property in a way no one else in the same community can, even though they all suffer from the same hardship. This obviously has some unfair elements to it.
Another important consideration is that the variance may not be detrimental to the public interest. The applicant has the burden of proving this "negative criterion." Proving a negative is always difficult to do; it is hard sometimes even to know where to begin.
There are certain things which generally do not support the issuance of a variance. For example, the fact that it will cost the owner more money to develop the property consistent with the zoning law is not a legal basis upon which to grant a variance. It may be considered if the Board of Zoning Appeals considers that the factual predicate of a unique physical condition of the property has been met. Another basis not generally accepted on its own, is the fact that the property will be better looking or more aesthetically pleasing in some way as a result of the development. It may be considered, but it is not sufficient on its own. Personal hardships, such as the need to have the applicant's mother live on the property is not a good reason to relax the provisions of the ordinance. The existence of non-conforming uses or the proximity of another zoning district where the variance might not be needed is, likewise, immaterial.
Perhaps the best example of an appropriately granted variance is in the case Jacksonian Foundation v Walgreens and the Metro Board of Zoning Appeals (Davidson County Docket 98C-1755). In that case, the unusual shallowness of property restricted severely the size of the building envelope. As a result, the Zoning Board granted the variance and its conclusion was upheld on appeal.
The most important case on variances in Tennessee is McClurkan v. Metro Board of Zoning Appeals, 565 SW 2d 495 (Tenn. Ct. App. 1977).