There is perhaps no area of land use law where practice departs more from legal doctrine than the realm of zoning variances. According to the legal doctrine, variances are to be granted sparingly, providing a “safety valve” that alleviates unique hardships encountered by a property owner. In practice, variances are granted at high rates—often around ninety percent of applications are approved—and, in some jurisdictions, in high volumes. In such cases, variances effectively serve as a rezoning, enabling jurisdictions to permit otherwise prohibited uses and allow growth and development to occur without addressing needed zoning reforms. By allowing neighbors the opportunity to weigh in on the smallest of changes, with little attention to the relevant legal doctrine, they also create significant uncertainty, delay, and cost for property owners. This problem is particularly acute in the City of Boston, where the city grants thousands of variances each year. In this symposium contribution, we share the results of an empirical study of variance decisions in Boston. We compare Boston to three neighboring jurisdictions: Cambridge, Brookline, and Somerville. We find that variances in Boston are, consistent with prior studies elsewhere, granted at a very high rate. Looking at the substance of these decisions, we find that little attention is given to the legal requirements for a variance. Instead, decisions are shaped by a desire to help individual applicants, a willingness to permit development consistent with the neighborhood, and the policy preferences of board members. This study suggests a number of lessons for reformers. Variance decisions shed light on particularly onerous elements of local zoning, revealing targets for reform. The process itself highlights how local residents understand zoning and their expectations regarding their own role in land use decision-making. In jurisdictions that rely heavily on variances to permit new development, reformers will need to grapple with how they might substitute the voice residents currently exercise through the variance process.
John J. Infranca and Ronnie M. Farr
Variances: A Canary in the Coal Mine for Zoning Reform?,
50 Pepp. L. Rev.
Available at: https://digitalcommons.pepperdine.edu/plr/vol50/iss3/1