Written by attorney Robert R Jewell | Jan 11, 2011

How to Obtain a Variance for Your Property in Connecticut

ZONING REGULATIONS There are many rules that apply to property use, including "zoning regulations." Zoning regulations are a body of rules enacted by a town that regulate how a property can be used and they can be sweeping, including rules that limit the maximum size of structures or buildings and the activities can be conducted thereon. Zoning regulations are enacted by local governments under the constitutional "police powers" to protect the health, safety and welfare of its citizens. Most, if not all, towns in Connecticut have chosen to enact zoning regulations and, while the concept of grandfathering applies, when a town enacts zoning regulations, they apply to all properties within that town. Since our country was founded on the concept of "fairness," the same law that allows towns to regulate land use also requires that they must also create a body that allows property owners to appeal from their application. In Connecticut, that body is called the "Zoning Board of Appeals" and every town that enacts zoning regulations must have one. ZONING BOARD OF APPEALS The Zoning Board of Appeals has the power to grant permission to use property in such a way that it would otherwise violate the zoning regulations. A common example would be setback regulations. Setback regulations set a minimum distance that a building or structure may be placed from a property line. The purpose of these regulations is to protect neighboring property owners from structures too close to their property line. This is typically justified for safety reasons (fire can easily spread from structure to structure), but also for privacy and aesthetic reasons. If you intend to build a structure on your property, you may require a permit and as part of that process, you must demonstrate that your proposed structure meets all of the zoning regulations. If, for example, there is a minimum setback of twenty-five feet in your town or zone, then you cannot, under those regulations, construct that structure any closer to the property line-- unless, of course, you obtain a variance. VARIANCES In essence, a "variance" is permission from a Zoning Board of Appeals to do something that violates the zoning regulations. In Connecticut, it is very difficult to obtain a variance because the legal requirements are very strict. The law states that you must prove that the strict enforcement of the zoning regulations creates a practical difficulty or "unusual hardship." The "hardship" must arise from the zoning regulations themselves, not your own personal situation, and it must not be self created. If you are able to clear the "harship hurdle" then you must also show that your proposed use does not run afoul of the town's "comprehensive zoning scheme." The hardhsip hurdle is the hardest to clear. A classic hardship is topography. If you have a lot that is very narrow, say 50 feet wide, and the lot was legally created before the enactment of setback regulations, then applying a 25 foot setback would be a hardship- because the zoning rules, as applied to your lot, would prevent you from building anything on it. If you created that lot after setbacks were enacted, however, that would not be a valid hardship, because you created this difficulty yourself and you cannot create your own hardship and then ask for relief from it. A surveyor's error, for example, is also considered "self-ctreated." Another classic hardship is topography. If your lot was very steep and unbuildable except within the setbacks, this topography could constitue a valid hardship. Many other fact patterns can create a cognizable hardship, so even though there are general rules, each case must be examined on its own merits. The second prong of the variance requirement is that your use cannot violate the comprehensive zoning plan. This typically means that your use must not constutute a threat to public health or saftey or devalue neighboring properties. If, for example, your setback was for a wood-burning furnace building or similar noxious use, your neighbor could object on the grounds that such a use so close to his property could affect his health and devalue his property, which arguments would likely be valid. With setbacks, in particular the objections of neighbors, especially the neighbor most affected by the proposal, can be fatal to a variance application. In zoning appeals, the burden is upon the property owner to prove his or her case. Strict compliance with these legal requirements is almost impossible, so many Zoning Boards of Appeal have softened the burden based on the facts and circumstances of each case. Since each town maintains their own Board, it may be much more difficult to obtain a variance in one town than it is in another. In no case, however, is a variance ever a "slam dunk." If anyone, be it a seller, an attorney or a real estate broker ever suggests such a thing, you would be right to be skeptical.

Additional resources provided by the author

Section 8 of The Connecticut General Statutes and Volume 9 of the Connecticut Practice Book provide the primary and most reliable secondary source for all land use issues, including the law of variances. Enjoy!

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