When you’re in the business of criticizing conventional land-use regulations, there’s a callous reply that crops up from time to time, especially among planners: “Yes, well, a developer can always apply for a variance.” This should not be accepted as a serious defense. Here’s why.
In planning, a variance refers to a permitted variation from the standard land-use regulations applicable to a site. These come in two forms: area variances, which allow a property owner to bypass rules about the space a building may occupy and how it must relate to the lot it sits on (such as setbacks or minimum lot dimensions), and use variances, which allow for a land use that isn’t otherwise permitted (such as a daycare in a residential neighborhood). Variances are given out on a discretionary basis, completely up to either planning staff or planning commissions.
Variances have a valuable role to play in the planning ecosystem. As originally intended, they help property owners in unusual circumstances get out of onerous (but normally reasonable) requirements. The classic example is letting a property owner who has a massive slope on the back half of her lot get out of front setback rules, so she can build her home right along the street. Small front setbacks generally make sense, but in this case, because of the lot’s steep topography, forcing the property owner to comply with even a small front setback would mean that she cannot build a home on her property. So you issue a variance.
The trouble is that our planning system increasingly forces more and more property owners in normal circumstances to acquire variances as they bump up against unreasonable rules. Let’s call this “variance dependence.”
The first major issue with variance dependence is that sometimes it’s the rules that are the problem, not the applicant. Let’s work through a typical example: Imagine a vacant lot on an urban street lined with apartments on small lots. The lot was abandoned and demolished in the 1970s. In the 1980s, as part of a zoning overhaul, the city applied a parking requirement of one parking spot per residential unit to that area of the city. In 2018, a small local developer is interested in acquiring this vacant lot and rebuilding an apartment that fits with the existing neighborhood. But there’s a dealbreaker: the out-of-date parking requirements suck up so much land, that the traditional development pattern—the one that already exists in the neighborhood—is functionally illegal.
What’s the appropriate planning response here? All too often, the actual response is, “Apply for a variance.” Indeed, in this case, most reasonable planners and planning commissions would be happy to approve these parking variances. But that doesn’t address the root problem, which is the bad rule. If a rule is consistently requiring bad development patterns or suppressing good development, the onus isn’t on the developer to find a way around that rule. Rather, the onus is on planners and policymakers to change that bad rule. Planning is about foreseeing development trends and setting out guidelines that nudge development in a socially positive direction. Expecting every single redeveloper to apply for a variance is the antithesis of planning.
A second, related problem with variance dependence is that variances aren’t easy to get. In most cities, even a small variance will cost thousands of dollars in permitting, legal, and consulting fees. The process of securing a variance will also take a lot time, sometimes as much as two years, which can derail a development project altogether. Worst of all, after having spent all this time and money, there’s no guarantee that the applicant will even get the variance. A planning commissioner might be in a bad mood, or a salty neighbor might show up, and all that work will have been for nothing. This is why small development gurus generally discourage small or new developers from pursuing variances altogether.
The downstream results of this variance dependence for your town or city can be disastrous. Besides killing projects or making them worse, this system also changes who can build. The complexity, risk, and cost of securing a variance is often too much for most small, local developers. The same applies to small local businesses and nonprofits, who might like to expand or move, but don’t have the sophistication or capital to deal with the variance process. In this way, variance dependence disempowers those best positioned to make positive change in their communities. In their stead, major developers, chain stores, and land-use attorneys who can afford to navigate the variance process come in to fill the void. So much for the public interest.
The emergence of variance dependence should be recognized as a crisis among planners. Beyond holding back desirable new development, this growing dependence on ad hoc exceptions and exemptions ultimately serves to undermine faith in city planning. So take stock: If certain rules are constantly producing variance requests, take a serious look at whether they are still appropriate. Better yet, take a good, hard, top-to-bottom look at your zoning code and ask this question about every rule. And for those variances which can’t or shouldn’t be addressed with a rule change, find ways to make the process easier, either by reducing permitting fees, providing more in-house consultation for applications, and/or empowering city staff to approve applications that clearly meet reasonable standards without going through a full public hearing. From one planner to another, we can do better than just callously forwarding the variance application form.
(Cover photo: Wikimedia Commons)