Variance

Key Takeaways

• A variance lets one property depart from one zoning standard, such as a setback or a height limit, without changing the property's zoning classification.
• Under RCW 35A.63.110 a Washington code city may grant a variance only if it is not a grant of special privilege inconsistent with the limits placed on other properties in the same vicinity and zone.
• Washington's test turns on special circumstances of size, shape, topography, location, or surroundings, not on the owner's budget or preferences.
• A variance is not a rezone. Rezoning changes the classification of the land, and a variance leaves the classification alone.

What It Means

A variance is permission from local government to build or keep something a zoning rule would otherwise forbid. Zoning sets standards for an entire district: how far a building must sit from the property line, how tall it may stand, how much of the lot it may cover. A variance excuses one parcel from one of those standards. It does not rewrite the rule for the neighborhood, and it does not move the property into a different zone or change the Comprehensive Plan behind it.

Students often picture a variance as a favor handed to a persuasive applicant. It is closer to the opposite. A variance is a correction for a lot that cannot make reasonable use of its own zoning because of something about the land itself: a pie-shaped parcel on a curve, a steep slope, a stream buffer that swallows the buildable area. The owner applies to a board of adjustment or a hearing examiner, and the board applies a written test rather than weighing sympathy. If the property could comply and the owner simply prefers not to, the answer is no.

How It Works in Washington

Washington puts the test in statute, and it is not a loose hardship test. Under RCW 35A.63.110, which governs boards of adjustment in code cities, no application for a variance may be granted unless the board makes three findings. First, that the variance will not constitute a grant of special privilege inconsistent with the limitation upon uses of other properties in the vicinity and zone. Second, that the variance is necessary because of special circumstances relating to the size, shape, topography, location, or surroundings of the subject property, to provide it with use rights and privileges permitted to other properties in the vicinity and in the zone. Third, that granting it will not be materially detrimental to the public welfare or injurious to the property or improvements in the vicinity and zone.

Counties run the same play under a different section. RCW 36.70.810 gives a county board of adjustment authority to hear and decide applications for variances from the terms of the zoning ordinance, again with conditions that keep the outcome from becoming a special privilege inconsistent with neighboring properties. Read the two together and the theme is level ground rather than relief. A variance restores to an awkward lot the privileges the ordinance already gives its neighbors. Compare Rezoning, which changes the classification itself, and see our guide to Washington boundary and fencing rules for how line-related standards play out day to day.

Example

Owen Marsh owns a 6,200 square foot lot on Birch Street in Olympia, zoned single family with a 25 foot front setback. The street curves, so the lot is shaped like a wedge, and a 25 foot setback leaves a buildable area only 19 feet deep. That is too shallow for the 1,450 square foot house the code otherwise allows. Owen applies to the board of adjustment for a variance reducing the front Setback to 15 feet. He shows that eight of the nine other lots on the block are rectangular and build at 25 feet without trouble, that the wedge shape comes from the street geometry rather than anything he did, and that a 15 foot setback would still sit farther back than the two homes on the corner. The board grants the variance. The zoning on Owen's lot does not change, the 25 foot standard for Birch Street does not change, and only his parcel gets the 15 foot number.

Common Mistakes and Exam Traps

• A variance and a rezone are different remedies. A variance excuses one property from one standard, and a rezone changes the zoning classification of the land.
• Variances, conditional uses, nonconforming uses, and rezoning are four separate exceptions to zoning. Only the variance relaxes a standard for a property that cannot reasonably comply with it.
• Washington's statutory test asks about special circumstances of size, shape, topography, location, or surroundings. An answer resting on the owner's cost, financing, or expected profit is the wrong answer.