What Exactly is a Zoning Hardship?
In the context of zoning matters, a hardship is a very narrowly defined thing that is not so casually conjured and not so willfully validated. It would seem that if you need a hardship (and you do if you are seeking a variance from the zoning regulation) you could just craft one, if you are so clever. But not so fast! Technically speaking, a hardship cannot be crafted or spun. It cannot be manufactured. Basically, it must arise from the subject property. This is where a firm grasp on the definition of hardship as it relates to zoning matters can be elusive. It is crucial to grasp, though, as you may be called upon to defend it throughout the course of the variance process (depending on the rigor of the municipality).
A hardship is an unusual irregularity in your property (not your personal circumstances) that makes it uniquely difficult for you to comply fully with the zoning regulations; the hardship must not be general to other parcels in your zoning district.
In a general sense, we normally understand hardship to be a burden that one bears. A burden that, if not some kind of permanent malady (like a chronic disease), can only be relieved by an act of justice or at the mercy of others, or managed by a strength of perseverance brought out of oneself.
Some very real hardships are the suffering that stems from abuse, or the brunt of discrimination, or the death of a parent at a young age. At the other end of the spectrum, some would say that living a modern life in a small house during a time of ever larger typical houses is a hardship. But while these may constitute real hardship to various degrees in one sense, they are utterly irrelevant to hardship in the context of zoning law.
The hardship that is contemplated in zoning law is as different from the hardships and real woes of our personal lives as the sacred is different from the secular.
Yet many folks who are seeking a zoning variance do not really understand the disparity between these two very different underpinnings of the concept “hardship”, and they carry that secular understanding of hardship into their ZBA hearings, where they lay a thick story of woe, believing the thicker they can lay it, the better their chances of success will be.
Keep reading to find a “test” below of a real (by my analogy, “sacred”) zoning hardship .
Who Deems a Hardship to be Valid, Ultimately?
A hardship will be deemed valid or not by your municipality’s Zoning Board of Appeals, and notwithstanding an appeal of that decision, the ZBA is thereby vested with the ultimate authority. However, a hardship has the potential, essentially, to be evaluated many times through the course of a zoning variance application process. It’s ultimate validation may even extend beyond the ZBA, and depends on how far an application for a variance is pursued by you or your opponent(s) through the full availability of the process.
You First
A hardship is first evaluated by you with your project team, if you’ve hired one. Often a “best shot” at a hardship is identified, and the evaluation that occurs is more an analysis of the merit in seeking a variance and the risk to you if it is denied. Usually the risks are the fruitlessness of time and money spent, which can become substantial, but also sometimes there are risks to damaging relationships with neighbors.
The Zoning Officer
If you move forward, the hardship would then be evaluated by the zoning officer who receives your variance application. He or she should have a good grasp of what makes a hardship valid and should act as gatekeeper to the ZBA, dismissing frivolous hardships at the point of variance application. But this is rare in my experience. Then again, one could argue that the applicant has the right to be heard by the ZBA regardless of the zoning officer’s determination of frivolity underlying the application. Nevertheless, the professional knowledge and experience of the zoning officer should give you a view into the “sacred” of hardship as it relates to zoning law. Ask for his or her opinion if it isn’t made known to you outright.
The Neighbors
Not to be dismissed as inconsequential, your neighbors will be alerted to the filing of your application and may decide to evaluate your hardship and turn out to the ZBA hearing as opposition if they feel there is no hardship, or that it is bogus. A strong argument from a neighbor, especially one that points out the bogus or absence of a hardship, is sure to sink your application. In that light, their deeming of no validity may impose some strong gravity to the outcome of your application.
The Zoning Board of Appeals
The duty of the Zoning Board of Appeals, hearing all testimony, is to make a finding on the hardship and render a decision as to the variance application. You may have been to a ZBA Hearing before and watched your ZBA receive a presentation, mull it over in its executive session and then render an approval without making any finding as to the hardship of the application (or the lack of a hardship, as the case may be). I’ve seen this happen many times, and in fact my clients have benefited in instances where the Board does not look for the hardship and the variance is granted simply because the request was compelling in a “secular” way and no one was there to object.
Appellate Court Judge (if it comes to that…)
However, if your neighbor indeed turned out to object, and if the decision of the ZBA was favorable to you regardless to the gravity of the neighbor’s opposition, the neighbor may elect to appeal the decision. At that point, the hardship will be evaluated ultimately in the appellate court system by judge(s) steeped with experience in zoning law. Where a ZBA that is composed of laypersons may be casual with their treatment of hardship, a judge will not be.
Each of these hardship evaluations along the way carry the potential to impact the outcome of a variance application. Taken all the way through an appeal, a judge will render the ultimate validation, so it is best to be absolutely confident with the validity of your hardship if you are going through all that effort.
The Test of a Real (Zoning) Hardship
You can feel confident that a hardship is in the realm of the real (in a “sacred” way) if you can affirm all the relevant bullet points that follow:
- The hardship is born out of a quality or condition that is inherent in the physicality of the land parcel (topography, lot shape, etc.).
- The hardship is imposed only by conditions that are outside the property owner’s control.
- While the granting of a variance may improve personal circumstances ultimately, the hardship itself is not generated by any personal circumstance.
- The hardship is unusual and different in kind from that affecting other parcels in the same zoning district. In other words, it is unique to the subject parcel and not generally present in the overall district.
- The hardship is not based on financial considerations of the property owner. If a financial consideration is present, it is because the hardship is depriving the owner of the land’s value in an egregious way, either completely or almost completely.
- The hardship is not “manufactured” (an example would be something like subdividing a parcel and then seeking variances for the resulting parcels, asserting the act of subdivision as the basis of the hardship).
If you are researching the definition of hardship, then you were probably already aware that to succeed in your quest for a zoning variance, your ask must be born from a valid hardship. A valid hardship is not so easy to come by, as discussed above. Many variances are granted every day, and many of those granted succeed without any finding of hardship. So you may wonder, “Why all the fuss with hardship?”
Because results will vary. Because every ZBA is different (and each one changes periodically). Because while it’s meant to be an objective process, politics sometimes enters. Because past successes are not a guarantee of future results. I invite you to subscribe to the view that any endeavor worth doing, like seeking a variance, is worth doing to the best of one’s forthright ability. A studied and thoughtful approach will lead in the direction of success (or in the least it will preclude an easy defeat), while a willy-nilly throw-it-against-the-wall approach will narrow one’s opportunities for success, comparatively.
Proceed with a thinly crafted hardship at your own peril!
Are there elements to a valid hardship that are not captured here? Please leave a comment sharing what you know! Stories of zoning hardships that either floated or sank are also encouraged! Thanks for reading this and for contributing with comments! Please consider subscribing to this blog for notification of future articles related to the process and activities of Building On Land.