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Variance

Definition

1) An officially granted exception to a zoning ordinance.  Such exceptions may be granted on a case-by-case basis for some persuasive reason shown.

2) A difference between two statements or other pieces of evidence that usually would be expected to indicate the same thing. 

Illustrative caselaw

See, e.g. Williamson County Regional Planning Comm'n v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985) (in zoning) and Kotteakos v. United States, 328 U.S. 750 (1946) (between indictment and proof).

See also

Definition from Nolo’s Plain-English Law Dictionary

1) An exception to a zoning ordinance, usually granted by a local government. For example, if you own an oddly shaped lot that could not accommodate a house in accordance with your city's setback requirement, you could apply at the appropriate office (usually the zoning or planning department) for a variance allowing you to build closer to a boundary line. 2) In criminal cases, a discrepancy between what is alleged in the charges and what the prosecution produces as proof. If the judge or jury has nevertheless convicted the defendant, an appellate court may find that the discrepancy is a "fatal variance," requiring reversal. 3) In civil cases, the disparity between the plaintiff's claims (or allegations) and the proof that the plaintiff has produced. Modern pleading rules allow plaintiffs to amend their claims even during trial, to conform with the evidence they produce.

Definition provided by Nolo’s Plain-English Law Dictionary.

August 19, 2010, 5:26 pm

 

The owner of a small deli wishes to open another location on the other side of town.  After signing a lease for the new property, the owner learns that the neighborhood in which he plans to build was recently zoned for residential use only. 

The new zoning ordinance took effect just last month, and several coffee shops in the neighborhood were "grandfathered in" and permitted to continue operations. 

The deli owner applies for a variance.  The variance application argues that the deli would not produce significant amounts of noise and would not alter the aesthetic appeal of the neighborhood.  The application also points to the coffee shops in the area, which are owned by national chains, and urges the city zoning board to support local business. 

After some consideration, the zoning board issues a variance and grants a zoning permit for the new deli.

"[B]ecause petitioner's property lies within the Central Business District, the CDC already required that petitioner leave 15% of it as open space and the undeveloped floodplain would have nearly satisfied that requirement.  But the city demanded more - it not only wanted petitioner not to build in the floodplain, but it also wanted petitioner's property along Fanno Creek for its greenway system."

"Petitioner requested variances from the CDC standards.  Variances are granted only where it can be shown that, owing to special circumstances related to a specific piece of the land, the literal interpretation of the applicable zoning provisions would cause 'an undue or unnecessary hardship' unless the variance is granted."

Dolan v. City of Tigard, 512 U.S. 374, 380, 393 (1994) (citation omitted).