Variance

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Variance

The discrepancy between what a party to a lawsuit alleges will be proved in pleadings and what the party actually proves at trial.

In Zoning law, an official permit to use property in a manner that departs from the way in which other property in the same locality can be used.

The term variance is used both in litigation and in zoning law. In both instances it has the general meaning of a difference or divergence.

A party to a civil lawsuit or a prosecutor in a criminal trial must prove the allegations set forth in a complaint, indictment, or information. If there is a substantial difference or discrepancy between the allegations and the proof offered in support, a variance exists. For example, if the crime of Robbery is alleged and the crime of Burglary is proved instead, the failure of proof on the robbery charge constitutes a variance that will lead to the dismissal of the case.

Most U.S. communities have zoning laws that control and direct the development of property within their borders according to its present and potential uses. Typically, a community is divided into zoning districts based on the type of use permitted: residential, commercial, and industrial. Additional restrictions may limit population density and building height within these districts. A variance is an exception to one or more of the zoning restrictions on a piece of property.

A variance is different from a nonconforming use, which permits existing structures and uses to continue when zoning is first instituted. Once a zoning plan has been established, a property owner who wishes to diverge from it must seek a variance from the municipal government. The variance will be granted when "unnecessary hardship" would result to the landowner if it were denied. Although other forms of administrative relief from zoning restrictions are available, such as rezoning the area, variances are most frequently used.

There are two types of variances: area variances and use variances. An area variance is usually not controversial because it is generally granted due to some odd configuration of the lot or some peculiar natural condition that prevents normal construction in compliance with zoning restrictions. For example, if the odd shape of a lot prevents a house from being set back the minimum number of feet from the street, the municipality will usually relax the requirement.

Use variances are more controversial because they attempt a change in the permitted use. For example, if a lot is zoned single-family residential, a person who wishes to build a multi-family dwelling must obtain a variance. Residents of an area will generally object to applications for variances that seek to change the character of their neighborhood. Although the municipality may heed these objections, it will likely grant the variance if it believes unnecessary hardship would result without the variance. If, however, the owner seeking a variance for a multifamily dwelling bought the property with notice of the current zoning restrictions, the variance will probably be denied. Applicants for a variance cannot argue hardship based on actions they commit that result in self-induced hardship.If many use variances are sought in a particular area on the basis of unique or peculiar circumstances, it may be a sign that the entire neighborhood needs to be rezoned rather than forcing property owners to seek variances in a piecemeal fashion. Properly used, variances provide a remedy for hardships affecting a single lot or a relatively small area.

Cross-references

Land-Use Control; Setback.

variance

n. 1) an exception to a zoning ordinance, authorized by the appropriate governmental body such as a planning commission, zoning board, county commissioners, or city council. Example: the zoning ordinance requires that no residences can be built within 10 feet of a property's back line, but due to the odd shape of May Matheson's property, she needs to build her dream house within five feet of the property line at one point. The local zoning board listens to her plea, finds that the neighbors do not object, and grants her a variance to build closer to the back line. 2) a difference between what the prosecution has charged and what it has proved against a criminal defendant. 3) a difference between what is alleged in a civil complaint and what is proved. A substantial variance may be fatal to the prosecution's case against the accused or fatal to a plaintiff's (the person who filed the suit) lawsuit. In each case the judge can dismiss the case as a matter of law, without sending the factual issues to the jury. In criminal cases the test of a fatal variance is somewhat stricter than in a civil lawsuit, since a minor difference between the charge and the proof may mislead the defendant and deny him/her "due process." (See: dismissal, proof)

VARIANCE, pleading, evidence. A disagreement or difference between two parts of the same legal proceeding, which ought to agree together. Variances are between the writ and the declaration, and between the declaration and the evidence.
     2.-1. When the variance is a matter of substance, as if the writ sounds in contract, and the other in tort, and e converso, or if the writ demands one thing or subject, and the declaration another, advantage may be taken of it, even in arrest of judgment; for it is the writ which gives authority to the court to proceed in any given suit, and, therefore, the court can have no authority to hear and determine a cause substantially different from that in the writ. Hob. 279; Cro. Eliz. 722. But if the variance is in matter of mere form, as in time or place, when that circumstance is immaterial, advantage can only be taken of it by plea in abatement. Yelv. 120; Latch. 173; Bac. Ab. Abatement, I; Gould, Pl. c. 5, Sec. 98 1 Chit. Pl. 438.
     3.-2. A variance by disagreement in some particular point or points only between the allegation and the evidence, when upon a material point, is as fatal to the party on whom the proof lies, as a total failure of evidence. For example; the plaintiff declared in covenant for not repairing, pursuant to the covenant in a lease, and stated the covenant, as a covenant to "repair when and as need should require;" and issue was joined on a traverse of the deed alleged. The plaintiff at the trial produced the deed in proof, and it appeared that the covenant was to "repair when and as need should require, and at farthest after notice:" the latter words having been omitted in the declaration. This was held to be a variance, because the additional words were material, and qualified the effect of the contract. 7 Taunt. 385. But a variance in mere form or in matter quite immaterial, will not be regarded. Str. 690. Vide 1 Vin. Ab. 41; 12 Vin. Ab. 63; 21 Vin. Ab. 538 Com. Dig. Abatement, G 8, H 7; Id.; Amendment, D 7, 8, V 3: Bail, R 7; Obligation, B 4; Pleader, C 14, 15, L 24, 30; Record, C, D, F; Phil. Ev. Index, 11. t. Stark. Ev. Index, h.t., Roscoe's Ev. Index, h.t.; 18 E. C. L. R. 139, 149, 153 1 Dougl. 194; 2 Salk. 659; Harr. Dig. h.t. Chit. Pl. Index, h.t.; United States Dig. Pleading II, d and e; Bouv. Inst. Index: h.t.

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