Applying for a variance in Maricopa County, Arizona

If you have real estate clients in Arizona, particularly in Maricopa County, there may come a time when a real estate developer, homeowner, or investor needs to get a "variance."

What is a variance?

A variance is basically a deviation from the existing zoning ordinance.  A zoning ordinance is basically a law that sets forth certain real estate development standards that are designed to be in the best interest of the community and to promote responsible development.  A common requirement of the zoning ordinance is "setback rquirements."  For example, in Arizona a common zoning designation is "R-43" (residential).  In R-43 zoning you will typically find residential zoning setback of 40 feet on the front and rear of the property and 30 feet and 20 feet on the interior and street.  These are the zoning laws you are required to follow.

Now, let's say you have recently purchased a vacant lot in Maricopa County, Arizona (ex. in Phoenix, Scottsdale, Gilbert, Paradise Valley, Peoria, Glendale, Goodyear, Avondale, Buckeye, Chandler, etc.) and let's say you have a proposed single family residence project that you want to develop.  You are normally required to adhere to the zoning ordinance and follow the setback requirements.  If you don't you could be cited for a violation of the zoning ordinance.  By applying for a "variance" you are basically asking the board of adjustments for a deviation to the R-43 zoning setback requirements and you have to make the case why you should be granted the variance.  This is where a good real estate zoning lawyer (or "land use lawyer" as we are sometimes called) comes into play and can help you apply for the variance and make the case to the board of adjustments.

What is the four factor test the board of adjustment will look to in determing whether to granting a variance to the zoning statute in Maricopa County?  

As you will learn when you go to apply for a variance in Arizona, there is a burden on the homeowner, developer or real estate investor to prove in order to be granted a variance from the zoning statute.  In general here is the FOUR PART TEST the board of adjustments will look at:

1.  You must show there is a peculiar condition to the property (like a substandard lot, or your property has hills in areas where other properties are flat, smaller lots than the others, etc.).  

2.  You must show that application of the specific regulation of the zoning ordinance to the property at issues results in an "undue hardship" (you cannot simply argue that the CC&R's or an easement for example causes the hardship, it must be application of the zoning ordinance).

3.  You must show that the hardship set forth in #2 or condition of the lot was not self-created by the owner.

4.  You must prove that granting the variance will not harm or upset the general intent and purposes of the zoning statute.

These are not necessarily easy items to prove and requires a fact-specific inquiry into your particular lot and the circumstances that apply to your property.

Where can I find a link to the variance application in Maricopa County Arizona?

Here is a link to the variance application in Maricopa County.  If you have specific questions, or want to hire a zoning lawyer in Arizona we can help you or your real estate clients.  I am a member of the North Mountain village planning committee in Arizona and familiar with Arizona real estate zoning and land use issues.

In some cases you may not be able to secure a variance, and you may have to seek rezoning of the property.  Rezoning is a process that starts at the Village, goes to planning and zoning and ultimately ends up in front of the City council for approval.  This will be the subject of future blog posts.