Distinguishing Variances and Special Exceptions
By: Zachary H. Brown
Clark, Campbell, Lancaster & Munson, P.A.
There are many avenues that property owners could travel to get around certain restrictions that local governments impose upon property throughout their jurisdiction. Sometimes local governments will restrict, for example, how high buildings can be built, or how property can be used. Such restrictions play an important role in how local governments plan and zone our communities. The most common tools that allow property owners to get around these restrictions are variances and special exceptions.
The primary difference between a variance and a special exception is that a variance grants a property owner the ability to use his or her property in a manner that is completely against local regulations, while a special exception is a circumstance that local governments specifically recognize before drafting a law, and will make provisions that recognize exceptions in the regulation itself. Each tool comes with its own benefits and drawbacks, but after a brief explanation they may be slightly easier to understand for property owners seeking to develop their property.
A variance is granted only when a property owner shows an undue hardship created by unique circumstances that the property owner did not create. The law is very clear that if the hardship is created by the property owner, a variance should not be granted. For example, is a hardship self-created if you buy a piece of property expecting to put a gas station on it, but local zoning laws prohibit gas stations in that zone? Florida courts have held in that situation, the hardship was self-created because that person knew of the zoning laws before buying the property, and thus created the hardship for himself. In essence, ignorance of local laws does not create undue hardships for property owners.
Typically, variances can fall into two categories – use variances and area variances. Use variances allow for property owners to use their property in a way not allowed by law, such as using your property in a zoning district that prohibits certain uses. An area variance allows property to be developed in a way that violates some dimensional requirement imposed by local regulations. This is most commonly found in height restrictions or setback requirements in local land development codes, where those restrictions limit development in such a way that development of the property is considered impossible.
Special exceptions are used by local governments when a particular use of the land is potentially problematic, but can be allowed if subjected to heightened development standards. These are also frequently referred to as special use permits or conditional use permits. Common examples of special exceptions are adding religious buildings or schools to local neighborhoods where residential property is the primary use. Local governments will grant these requests, but likely only by requiring certain “conditions” be met prior to approval of the use. There are a number of different conditions local governments can impose, but a few of them include landscaping features, parking upgrades, or right-of-way conveyances.
These are just a few common tools that are available for those property owners seeking to develop their property. As always, the best course of action is to retain a local attorney to assist with this process.
Zach Brown is an attorney with the law firm Clark, Campbell, Lancaster & Munson, P.A. in Lakeland. Questions can be submitted to firstname.lastname@example.org.