How Do You Prove Hardship?

When a property owner applies for a variation (a deviation from a zoning requirement), they must demonstrate that they face a particular hardship that makes it impossible or excessively burdensome to comply with the strict letter of the law.

Informally, “hardship” refers to the criteria for reviewing variation applications. When requesting a variation, one of the biggest challenges is demonstrating that the hardship is not self-created. This means that property owners seeking a variation cannot intentionally create the conditions that would then qualify them for relief. The hardship must be inherent, pre-existing, and not a result of the property owner’s actions. Understandably, the purpose of the hardship requirement is to ensure that the process is fair and objective and to minimize abuse or manipulation. However, many applicants struggle to demonstrate that the hardship is not self-created, especially when they are proposing new development or changes to the existing site.

Depending on where the property is located, typically, the Planning and Zoning Commission or the Zoning Board of Appeals will hear the application and either make a recommendation or in some circumstances, make the final decision. Although there are different factors for consideration, most often, the criteria include the following, among others:

1. The property in question cannot yield a reasonable return if permitted to be used only under the conditions allowed by the regulations in that zone;
2.  The plight of the owner is due to unique circumstances;
3. The variation, if granted, will not alter the essential character of the locality. 

Since laws and regulations vary from one jurisdiction to another, it’s important to review the applicable ordinance to understand the specific variation standard that is to be applied. For example, the Village of Wheeling, Illinois sets forth requirements or standards for seeking a variance on its website. While some municipalities include the criteria on the website or in the zoning application, others do not.

Proving that the criteria for granting a variation are met requires a careful review of the site, its conditions, and constraints. It also requires effective advocacy before the governing body. If you have questions about the variation application process, we’d love to hear from you. Feel free to reach us at 224-955-7095. 

Disclaimer: This content is for informational purposes only. It is not considered legal advice on any subject matter. The information provided here does not create, and receipt of it does not constitute an attorney-client relationship. You should not act upon this information without seeking advice from an attorney licensed in your own state or country.