Variance

What Is a Variance?

A variance is a formal waiver granted by a local zoning board of adjustment or county commission that permits a property owner to build or develop in a way that violates the strict dimensional rules of the zoning ordinance. It is a request for relief from the rules, not a request to change the rules.

Variances are typically sought for dimensional requirements, such as setbacks (building too close to the property line), lot coverage, parking quotas, or height restrictions.

The Florida "Hardship" Standard

In Florida land use law, a variance cannot be granted simply because it would save the owner money or make the project more profitable. The applicant must prove an unnecessary hardship based on specific legal criteria:

• Unique physical characteristics — The hardship must be caused by the unique physical shape, topography, or environmental features of the land itself (e.g., a pie-shaped lot, steep slope, or protected wetland taking up half the parcel).
• Not self-created — The hardship cannot be the result of the applicant's own actions (e.g., building a house too big for the lot and then asking for a setback variance for the pool).
• Deprivation of reasonable use — Strict application of the zoning code must deprive the owner of the reasonable, beneficial use of the property.
• Minimum variance necessary — The requested relief must be the absolute minimum necessary to alleviate the hardship.
• Public interest — The variance cannot alter the essential character of the neighborhood or threaten public health and safety.

Use Variances vs. Area Variances

• Area (Dimensional) Variance — Allows deviation from physical rules (setbacks, height, size). This is the standard variance allowed in Florida.
• Use Variance — Allows a property to be used for a purpose prohibited by the zoning code (e.g., putting a commercial store in a strictly residential zone). Many Florida municipalities expressly prohibit use variances, requiring a formal rezoning application instead.

The Application Process

Obtaining a variance is a public, quasi-judicial process. The owner submits an application, pays a fee, and presents evidence at a public hearing before a zoning board. Neighbors within a certain radius must be notified and are given the opportunity to object. If denied, the applicant can appeal to the circuit court.

Related Terms

• Zoning — The regulatory code the variance modifies
• Easement — Property right separate from zoning rules
• Building Code — Cannot generally be varied for structural safety
• Encroachment — An illegal intrusion that sometimes triggers a variance request

Barnes Walker Land Use Law

Barnes Walker's land use attorneys prepare variance applications, gather expert testimony, and represent property owners before zoning boards throughout Southwest Florida. Request a legal inquiry for assistance.

Reviewed by the attorneys at Barnes Walker, Goethe, Shea & Robinson, PLLC