What Is A Variance?
The two general categories of development variances are associated either with discretionary permitting (e.g., zoning permits, subdivisions) or ministerial permitting (e.g., building permits, fire sprinkler permits). Both categories have similar protocols but different rationales:
- Discretionary Permit Variance
- provides for relaxed regulations, so long as
- the diminishment is consistent with the intent of prescribed standards and is not detrimental to public welfare or contrary to adopted plans and policies.
- Ministerial Permit Variance
- provides for alternative regulations, so long as
- the substitute designs, methods, and materials are equivalent to (or more stringent than) the prescribed standards.
Variances typically have threshold requirements, such as local topographic, climatic, and geologic anomalies (e,g., urban wild-fire zone, seismic hazard zone, high-wind zone) or “unnecessary hardship” (e.g., deprivation of privileges allowed on similarly zoned properties).
Ministerial Permit Variances differ in one important aspect from Discretionary Permit Variances – MPVs cannot lessen quality, strength, durability, effectiveness, fire resistance, or safety regardless of the difficulty. The sole avenue for relief is qualifying for a different code (e.g., reduced structural standards in Historical Building Code for a local Landmark building).
How Are Variances Categorized ?
Many jurisdictions parse Discretionary Permit Variances into two categories – major and minor. Major variances generally involve significant neighborhood impacts, such as over-concentration, incompatible uses, and overpowering size and are typically adjudicated in public meetings with prior notification to surrounding property owners. Minor variances have smaller impacts, and many jurisdictions delegate approval (or denial) to a Planning manager.
All determinations are appealable within a limited time (and fee) – for DPVs by the permit applicant, neighbors, and occasionally other affected parties and for MPVs by the permit applicant.
Do Variances Have Limits ?
A variance is a deviation from a specific regulation in a code. The deviation cannot be so far-afield that it violates the expressed basis of the controlling code. For example:
- Zoning regulations implement the requirements of a jurisdiction’s General Plan, and a Zoning variance that violates the zoned options for the property cannot be approved unless a companion process is used to amend the General Plan and change the zone.
- The Subdivision Map Act requires a Subdivision Improvement Agreement and bonds for constructing public infrastructure as condition for approving a Final Map, and this statutory regulation cannot be circumvented unless a companion process is applied used to amend the Tentative Map and change the infrastructure to privately maintained. A subsequent dedication of the infrastructure to the jurisdiction would necessitate another amendment of the Tentative Map.
- While the Health and Safety Code requires a hand washing sink in commercial food preparation areas, the Plumbing Code does not, and the local Health Department’s regulation cannot be circumvented by granting a Plumbing Code variance. The same circumstances apply in many other instances, such as the Fire Marshal waiving requirements of the Building Code.