Section 6.15 Variances

• Library: Local Government Deskbook (2017 Ed.)

E. (§6.15) Variances

A variance is a form of quasi-judicial relief from the strict or literal application of a zoning regulation to a particular property. Rosedale-Skinker Improvement Ass’n v. Bd. of Adjustment of City of St. Louis, 425 S.W.2d 929 (Mo. banc 1968). The purpose of a variance is to provide a means, under limited circumstances, for a property owner to make some beneficial use of the land, despite the limits imposed by the ordinance. 2 Patricia E. Salkin, American Law of Zoning § 13:1 (5^th ed. 2017). The power to grant variances is expressly set forth in the enabling statutes, §§ 64.120, 64.281, 64.660, 64.870, and 89.090, RSMo 2016. Under these statutes, a board of adjustment is established; after public hearing, the board may relieve the property owner from strict compliance upon a showing of “practical difficulties or unnecessary hardship” (§§ 64.120, 64.281, and 89.090) or “peculiar and exceptional difficulties . . . or exceptional and demonstrable undue hardship” (§§ 64.660 and 64.870) as long as the public safety and welfare are not thereby jeopardized.

There are two types of variances: “area variances” and “use variances.” “Area variances” involve deviation from height, bulk, and area regulations, such as setback, frontage, and parking requirements. These types of variances have long been established in Missouri. In more recent times, these variances have come to be known as “nonuse variances.” State ex rel. Klawuhn v. Bd. of Zoning Adjustment of City of St. Joseph, Mo., 952 S.W.2d 725 (Mo. App. W.D. 1997). “Use variances” allow for a use of land that is prohibited by the zoning regulations. See Baumer v. City of Jennings, 247 S.W.3d 105 (Mo. App. E.D. 2008); Slate v. Boone Cnty. Bd. of Adjustment, 810 S.W.2d 361 (Mo. App. W.D. 1991). Obtaining a use variance requires a greater showing of hardship than obtaining an area or nonuse variance. Baumer, 247 S.W.3d at 107; Matthew v. Smith, 707 S.W.2d 411 (Mo. banc 1986). Like nonconforming uses, variances run with the land and are not personal to the current owner. 2 American Law of Zoning § 13:1.

Factors for a zoning board to consider in determining whether sufficient practical difficulties exist to permit issuance of a variance from a zoning ordinance include:

(1) how substantial the requested variance is;

(2) whether the variance will result in a substantial change to the character of the neighborhood or create a substantial detriment to adjoining properties;

(3) whether the difficulty can be obviated by some method, feasible for the applicant to pursue, other than a variance; and

(4) whether, in light of the manner in which the difficulty arose and considering all relevant factors, the interests of justice will be served by granting the variance.

Highlands Homes Ass’n v. Bd. of Adjustment, 306 S.W.3d 561, 566 (Mo. App. W.D. 2009) (quoting State ex rel. Branum v. Bd. of Zoning Adjustment of City of Kansas City, Mo., 85 S.W.3d 35, 39 (Mo. App. W.D. 2002)).

The power of review granted to the board of adjustment is limited. The board has no power to amend the zoning regulations, but only to...