Burden of Proof Criteria

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Criteria for a Use Variance

In a Use Variance, the Board considers the evidence according to the following:

1. The applicant bears the burden to demonstrate an unnecessary hardship which is defined in the three-prong test below:

  • The land in question cannot yield a reasonable return if used only for a purpose allowed in that zone;
  • The owners plight is due to unique circumstances and not to general neighborhood considerations;
  • The granting of a variance would not alter the essential character of the locality.

2. The applicant must prove that relief is necessary because of the unique character of the property.

3. The variance may not destroy the preservation of the Comprehensive Plan.

4. Granting the variance will result in substantial justice.

Criteria for a Non-Use Variance

In a Non-Use Variance, the applicant must show that, as a practical matter, the property cannot be used for a permitted use without coming into conflict with certain restrictions of the Zoning Code. More specifically, the evidence must answer the following:

1. How substantial is the variation in relation to the requirement?

2. What is the effect, if the variance is allowed, of the increased population density thus produced on available government facilities?

3. Will a substantial change be produced in the character of the neighborhood, or will a substantial detriment to adjoining properties be created?

4. Can the difficulty be remedied by some method, feasible for the applicant to pursue, other than a variance?

5. In view of the manner in which the difficulty arose and considering all of the above factors, will the interests of justice be served by allowing the variance? 

Additional Criteria

In presenting any application for a variance, the burden of proof shall rest with the applicant to prove that the harm complained of is not self inflicted.