More on Variances

A couple of days ago I mentioned a new book, Zoning Rules! The Economics of Land Use Regulation, by William Fischel, which I have been reading over the last week or so. It is quite an interesting book and comes at land use planning regulations from the perspective of economic utility rather than a technical legal perspective as to whether the regulations are administered and enforced an appropriate manner.

One of the areas that I’ve always been interested in has to do with zoning variances. The original Standard State Zoning Enabling Act had a fairly loosey-goosey variance provision, which allowed the zoning board to grant variances for almost any reason. When the public zoning enabling statutes were adopted here in Tennessee in 1935, Alfred Bettman, the author of those statutory provisions, inserted a much stricter requirement in order to successfully apply for a variance. As he said in 1935,

The test adopted to govern [zoning board] discretion was rather vague, elusive, and elastic clause known as the practical difficulty and unnecessary hardship clause, which provides, in a most generous way, that the board may vary the requirements of the zoning regulations where strict application would produce practical difficulty or unnecessary hardship.

Model Planning Laws, Bassett, Williams, Bettman & Whitten, Harvard Univ Press (1935) at 64. As an example, here's the text of the Wisconsin County provision as of 2005:

To authorize upon appeal in specific cases variances from the terms of the ordinance that will not be contrary to the public interest, where, owing to special conditions, a literal enforcement of the provisions of the ordinance will result in unnecessary hardship, and so that the spirit of the ordinance shall be observed and substantial justice done.

WIS. STAT. § 59.694(7)(c) (2005-2006). This is drawn straight from the Standard State Zoning Enabling Act. See Alan Madry, "Judging Ziervogel: The Twisted Path of Recent Zoning Variance Decisions in Wisconsin," Marquette Law Review 91:485-534 (2007). As the Madry article and many others have pointed out, this formulation of the test can be fairly elusive in actual application.

Bettman criticizes the “elastic clause” and points out that a

Serious consequence of the indefiniteness of the hardship clause is the advantage taken of it by many boards of appeals, so that, in practice in many places, the cumulative effect of the allowances of variances and exceptions represents a more serious impairment of the integrity of the zone plan than results from court decisions or councilmanic spot zoning.

It should also be pointed out, that the very same elasticity had allowed for the buying and selling of variances in New York City at about the same time in the 20th century. S I. Toll: Zoned American (1969) at 208-210.

Fischel, in Zoning Rules!, is critical of legal conclusions that variances are granted in situations where they are inappropriate. Citing a number of law review articles reach the same conclusion Fischel argures that frequently in person review by members of the zoning board and neighborhood considerations, including lack of opposition by adjacent neighbors, influence the board to grant appropriate relief. Fischel was a member of the Hanover, New Hampshire zoning board, and certainly his practical experience is worthy of note.

However, perhaps the situation is more complicated. Although the straitjacket zoning variance provisions which exist here in Tennessee may go too far, extremely lax zoning provisions may encourage zoning boards not only to grant too many variances but in fact grant variances as though dispensing candy, even going so far as to base those decisions on factors unrelated to board hearings. I’m talking about mayoral and councilmanic influences and money getting paid under the table in the form of bribes. Trying to balance those two competing considerations is the goal: to prevent zoning boards from reacting to external influences, which I believe happens with a great degree of frequency, and at the same time allowing the developer some flexibility where warranted.

Furthermore, using neighborhood opposition as a gauge as to whether or not a variance is appropriate is certainly and totally invalid. Some neighborhoods are just more active; some neighbors are just less neighborly. So if you live in one neighborhood with a more activist homeowners Association, you might get no relief where another property owner with the same issues, might get approved. From the standpoint of a land use lawyer, this certainly sounds like an arbitrary process.

I certainly believe that the Tennessee version is too strict; but there are also many states where the legislation would seem to be quite lax as in the Wisconsin version above.

Once again, this is quite an interesting book. It is well worth reading if you’re interested in this area, whether from a legal, planning, developmental, or economic perspective. It’s available on Amazon.