Hello,

Thanks for this interesting question. A variance “runs with the land”. However, underlying each variance is a set of facts, unique physical features, and a proposal to build something that come together to create a practical difficulty in order to grant a non-use variance. A blanket variance on a vacant parcel that never expires and applies to any building in the future, is typically not done and would not be a best practice.

Under no circumstance would an individual or person receive a variance – and then be able to apply that variance to any property going forward. Variances are granted to a person/landowner for a specific property under specific conditions based on criteria established by the courts and the ordinance.

If a variance comes before a ZBA for development on a vacant parcel—the variance could (and should) be crafted to be specific to that proposal. For example, “A 10 foot variance from the required 20 foot rear yard setback for placement of a 24’ x 48’ dwelling with 12’ X 14’ deck as described in the site plan.” Specificity in the motion to approve the variance would be strongly preferred to a blanket variance such as “A 10-foot variance from the required 20-foot rear yard setback”. Vague variance approvals could be problematic if it applied to any/all future development on the lot, particularly if variances never expire within the jurisdiction.

A zoning ordinance will establish if/when a variance expires in a situation where the owner does not use the permit, meaning no substantial construction occurred to establish a vested right. Some ordinances say variances never expire—others say 1 year, some are 3 years, etc. If a landowner was granted a variance, then built according to the variance, that variance would stay with the property regardless of subsequent owners of the property. 

Best Regards, Mary Reilly AICP

Hi George,

The situation becomes more difficult when the ordinance provides no guidance on the expiration of a variance that was never acted upon.  I see two options:

1) Look at past practice related to the expiration of permits, generally.  Has the township routinely enforced that zoning permits expire after 1 year (or other amount of time) if no substantial construction was done?  And has this included variances in the past?  If variances have been included in that-- then stick with that practice.  Past practice and consistent interpretation of the ordinance can be persuasive in court.   If the answer is "I don't know/we are not sure" or "no, we don't close out/cancel permits very consistently" then, 

2) Contact your municipal attorney and do what they recommend.  

Best Regards,

Mary