Variance vs. Special Exception

Two ways to get around a zoning rule

Zoning tells owners what they may build and how they may use the land. When a property owner cannot follow the code as written, the board of appeals can grant relief in more than one form. Two of those forms, the variance and the special exception, look similar on the surface but rest on completely different logic. Mixing them up is one of the most common errors on the exam.

What a variance is

A variance is permission to depart from a zoning requirement because of a hardship that is unique to the property. The classic example is a lot that is oddly shaped, too narrow, or sits on a steep slope, so strict compliance with a setback or height rule would be nearly impossible to meet. The owner must show the hardship grows out of the land itself, not out of their own circumstances, because a hardship shared by the whole neighborhood is not enough. Variances can be for area (setbacks, height, lot coverage) or for use, and use variances are the harder to obtain. Some states do not allow use variances at all, so check the jurisdiction when a question makes that relevant.

What a special exception is

A special exception, also called a conditional use permit, is different in kind. Here the zoning ordinance already lists the use as permitted in that district, but only if certain conditions are met. A church in a residential zone, a daycare in a commercial zone, or a hospital in a light industrial zone are common examples. The board is not bending the code, it is applying a rule the code already wrote. The deciding factor is the public interest and whether the proposed use fits the comprehensive plan, not whether the owner suffers hardship.

The same idea, three labels

It helps to line these up with a third category, the nonconforming use. A nonconforming use was legal when it began and was later grandfathered in when the zoning changed, so the owner never had to ask for relief. It is not a variance and not a special exception, and it can be lost through abandonment or sometimes when the property is conveyed. Keep the three apart: nonconforming means it was legal before, variance means hardship now, and special exception means the ordinance already allows it with conditions.

An example

A homeowner wants a taller fence than the code allows and argues it is needed for privacy and security. That is a request to relax a development standard because of the owner's situation and the lot, which points to a variance. Now change the fact pattern: a church wants to build a small sanctuary in a residential district. The ordinance names places of worship as a conditional use, so the request is a special exception, decided on the public interest rather than hardship. Same board, same hearing, opposite standard.

How this appears on the exam

Find the trigger word. If the scenario mentions hardship, an odd lot, or relief from a setback or height rule, choose the variance. If it mentions a use the ordinance already permits with conditions, or asks what the key consideration is, choose the special exception and answer public interest. Distractors love to plant hardship in a special exception question, and public interest in a variance question, so read which question you are actually being asked.