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Getting down in the weeds with variances

(originally published June 7, 2017)

Preamble -- The following is wonky, highly-detailed stuff that excites and inspires land use planners, but to normal people it is a crashing bore, chock-full of administrative lawyerese about a subject that is typically not well-understood by the public. And because the business of getting a variance is confusing stuff for the public, the process of granting a variance is wide open to abuse and deception in some places. Like Sacramento County's UnCity, for example. Which means this material, however dull and boring, is relevant to our community. So here it is:

In the world of local land use planning, many ways exist to implement a general plan.  Historically, the most traditional method is zoning, also known as zoning regulation.  In the world of zoning, a few tools exist to grant what is known as "administrative zoning relief" from seemingly strict regulatory schemes.  Among these tools is the variance, which is permitted under California law (CA Government Code Section 65906).  Variances are limited waivers from zoning ordinance property development standards, such as building setbacks, lot size, floor area ratios, and off-street parking.  A parcel’s lot size, shape or topographic features could create a development hardship that would deprive the property of development privileges enjoyed by other property in the vicinity with identical zoning.  This is when variances come into play.  A parcel’s shape or topography figures greatly in the consideration of criteria for approving or denying a variance.  Variances are to be used in unusual individual circumstances, and are not at all to be regarded routine in any way.  In other words, they are exceptions, rather than the rule. 

Decision making bodies, whether a Planning Commission, or Board of Supervisors, must make findings before approving a variance.  Findings are ‘legally relevant subconclusions that bridge the analytical gap between raw evidence and ultimate decision.’  (See Topanga Assn for a Scenic Community v. Board of Supervisors [1974] 11 Cal.3d 506).  The adopted findings must describe the special circumstances that physically differentiate the project site from neighboring properties.  With this in mind, the mere existence of economic hardships have nothing to do with the property or the decision on the variance application. 

Variances must be based on whether subsequent findings ‘bridge the analytical gap between raw evidence and ultimate decision.’  Variances must be supported by ‘substantial evidence in the record.’ (See Topanga Assn for a Scenic Community v. Board of Supervisors [1974] 11 Cal.3d 506)  If a variance decision results in a court challenge, the court will examine all public correspondence, including testimony, staff reports, e-mail transmission, and recordings of meetings—all of which constitute the public record.  This means, though, that if citizens wish to make a point and have their information noted for the record, their information must be presented before or during the public hearing, not later.  Courts will not consider information submitted after the fact.

A few other considerations:

  • Personal animosity or ill will toward the applicant or opponents to the variance are not valid considerations to use by a decision-making body.  By the same token, the applicant’s friendships within or contributions to the community are not valid considerations, either.  Applications must be considered on their own merits and cannot be used to grant a special privilege.
  • Variances are subject to the same procedural due process that apply to another other legislative or administrative act.  That is, open public hearings must be conducted, in accordance with the Ralph M. Brown Open Meeting Act (CA Government Code Section 54950 et seq).  The public agency must issue public hearing notices in a timely fashion and to all property owners within 300 feet of the project site.  Further, an incomplete or misleading hearing notice is tantamount to no notice at all (see Drum v. Fresno County Dept. of Public Works [1983] 144 Cal.App.3rd 777).  
  • The decision making body must also make findings required under the California Environmental Quality Act (CA Public Resources Code Section 21000 et seq).
May contain: interior design, indoors, room, theater, auditorium, hall, and lighting
The Orinda Theater, a CA historic building that was spared from demolition by Friends of the Orinda Theater v. County of Contra Costa [1986] 182 Cal.App.3d 1145, a case wherein, among other things, the Court rejected a variance that had been, "granted primarily to deal with desirable project design, amenities, benefits to the community, and the alleged superiority of the proposed Project design to ones developed in conformity with zoning regulations." Fast forward to today and the theater remains a local civic treasure, enhanced by a scaled-down commercial retail, restaurant and coffee shop "people place" project. {Photo credit: SFGate, 01/17/2003}
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