Many communities in Ohio have Boards of Zoning Appeals (“BZAs”) to address issues such as variances, special permits and conditional uses. In Ohio, variances can take one of two forms as either an area variance or a use variance. An area variance is often a variance from size requirements such as minimum lot dimensions or minimum setback requirements. Use variances allow for a use which is not generally allowed within that particular zoning district. Use variances are disallowed by many local zoning codes.
Under Ohio law, area variances serve as “escape valves”‘ to allow for flexibility from the strict application of zoning code requirements. For example, if a property owner wants to expand his deck to allow for easier wheelchair access to his home, but doing so will bring the deck a foot closer to the rear property line than is required for setback, that property owner may request a variance from the strict adherence to the zoning code requirements.
Typically, a property owner files an application and the local BZA will hear the application and make a determination. The standard for the granting of an area variance is whether the property owner can establish that a practical difficulty exists if the variance is not granted. To address area variances, the BZA will likely rely on decision standards set forth in the local zoning code. Often these standards come from an Ohio Supreme Court case, Duncan v. Middlefield (1986), 23 Ohio St.3d 83, which set forth the following standards for considering an area variance:
1. whether the property in question will yield a reasonable return or whether there can be any beneficial use of the property without the variance;
2. whether the variance is substantial;
3. whether the essential character of the neighborhood would be substantially altered or whether adjoining properties would suffer substantial detriment as a result of the variance;
4. whether the variance would adversely affect the delivery of governmental services (e.g., water, sewer, garbage);
5. whether the property owner purchased the property with knowledge of the zoning restrictions;
6. whether the property owner’s predicament feasibly can be obviated through some method other than a variance; and
7. whether the spirit and intent behind the zoning requirement would be observed and substantial justice done by granting a variance.
BZAs can consider other standards as well, but Duncan sets forth some guidelines. The state of the law in Ohio regarding area variances in townships is unclear at this time. Depending on where a property is located, the practical difficulty standard may not be applied and a property owner may have to meet a higher burden in order to be granted an area variance.
The standard for granting a use variance is the unnecessary hardship standard, which means that the property owner is deprived of all reasonable uses of the property. This standard has not been set forth as clearly by the courts of Ohio and BZAs have varying decision standards to use to determine if an unnecessary hardship exists.
Appeals of a BZA decision regarding variances can be taken to the county court of common pleas in accordance with Ohio Revised Code 2506, et seq. The court will review the decision made by the BZA to determine if the decision by the BZA was unconstitutional, illegal, arbitrary, capricious, unreasonable, or unsupported by the preponderance of substantial, reliable, and probative evidence.
The variance process differs greatly throughout the state of Ohio determining on what city, township or county zoning may apply. Often, consultation with a land use attorney is well-advised when pursuing a variance or when appealing a decision of a BZA.
