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Green Code debate is about variances. What are they?

If there's one word that's at the core of the debate over the city's new Green Code, it's "variance."

So what is a variance?

A variance is an exception to the zoning law, permitting a property owner to legally build something that wouldn't normally be allowed.

What can you get a variance for?

According to guidance from the state Division of Local Government Services, there are two kinds of variances: a "use" variance and an "area" variance.

The first allows a property owner to use land for something that is otherwise not permitted in that zoning district. For example, a use variance is needed to build an apartment complex in a manufacturing zone.

An area variance allows construction in a part of a property that would otherwise be restricted or prohibited. That deals with height, width, building setbacks and other similar factors.

How do you get a variance? 

State guidelines say that, for a use variance, a property owner must show they can't earn a reasonable return on their initial investment if they are limited in what they can build. They must show the circumstances affecting them are unique or at least very rare. And they must show the change will not "alter the essential character of the neighborhood."

For an area variance, the guidelines say, the ZBA must consider if the variance would result in "an undesirable change" in the neighborhood or "a detriment to nearby properties." It must also look at whether the variance would harm the physical or environmental conditions. And it must consider if the variance is "substantial," and if the desired benefit can be achieved in another way "which will be feasible for the applicant to pursue" without a variance.

In both cases, the board must decide if the property owner created their own hardship or difficulty, the state guidelines say.

What must a landowner prove?

The bar is much higher for a use variance. State law requires that the property owner must meet each of four standards; failure to prove even one of them means an automatic denial.

By contrast, for an area variance, a property owner has to show that the benefit he or she receives from the variance would outweigh "any burden to health, safety and welfare" for the community. So while the ZBA has to consider five factors in these cases, it does not have to find in favor of the property owner on every one of them before approving a variance, according to the state guidelines.

"There's kind of a misunderstanding as to what the Green Code is designed to do and what it's capable of achieving," said land-use attorney Adam Walters of Phillips Lytle LLP. "There is no question there is a community interest in making sure we have good development. But that needs to be balanced with the rights of property owners."

Are all variances the same?

A variance request could appear "substantial" in size – such as a building length that is nearly three times what is specified in the code –but it may not be substantial in its impact on the neighborhood's "health, safety and welfare," attorneys said. A mathematical analysis, while it has been used in some cases, is not required by law.

Similarly, a "self-created difficulty" could exist, but "it does not, in and of itself, act as a bar to the grant of an area variance," according to a report by the Division of Local Government Services.

And some development critics sought to distinguish "major" or "extreme" variances that have been granted to adevelopers from "minor" ones they find acceptable. But there's no such distinction in the law.

"There is no minor variance or major variance. There is just a variance," said Brendan Mehaffy, executive director of the city's Office of Strategic Planning. "People can seek variances and they are legally entitled to variances in some cases."

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