(Dec. 4, 2020) When it comes to restrictions that local governments impose on property, there are avenues such as a variance or a special exception that owners can pursue to request changes, but the two are very different.
A variance is permission granted to use a specific piece of property in a more flexible manner than allowed by the ordinance.
A special exception is a specific, permitted land use that is allowed when clearly defined criteria and conditions contained in the ordinance are met.
In other words, if you are requesting a variance, you are actually asking the local government office to grant the ability to use the property in a manner that is completely against local regulations.
Whereas, if requesting a special exception, you are utilizing an allowance that is already specifically recognized in the property’s existing regulations.
Variances are granted when a property owner shows an undue hardship created by unique circumstances. But, the circumstances cannot be created by the owner and the law is very clear to state that if the hardship is created by the property owner, a variance should not be granted.
Typically variances can fall into two categories—use variances and area variances.
Use variances allow property owners to use their property in a way not allowed by law; whereas, an area variance allows property to be developed in a way that violates some spatial requirement imposed by local government regulations, such as setbacks or height restrictions.
Special exceptions are used when a particular use of land is problematic, but can be allowed, and are frequently referred to as special use permits or conditional use permits.
One example is allowing a school to be built in a local neighborhood where residential property is the primary use.
Local governments will usually grant these requests, but apply certain “conditions” to be met prior to the approval of the special exception use. Some of the conditions that are customary are landscaping, parking upgrades and right of way improvements.
– Lauren Bunting is an Associate Broker with Atlantic Shores Sotheby’s International Realty in Ocean City.