Long-standing variances don’t necessarily green-light new projects

Question & Answer

Q: My wife and I want to put a roof over our existing deck, and then make the existing deck a little bigger.

Do we need a building permit?

A: Yes, permits are required for this.

Q: Why? We received an Area Variance back in the 1990’s to build the deck at about 20 feet off the side property line.

The new part will still be 20 feet off the side line and putting the roof on will not make it closer either.

And besides, we were told the Variance is good forever and does not expire, so why do we need a permit?

A: It is true that once an Area Variance is granted by the Board of Appeals it is good forever, unless it was conditioned otherwise in the approval.

This is commonly called “running with the deed or land.”

The approval of an Area Variance does not substitute the need of the building permit. The approval of the Variance allows the Code Officer to issue a permit for something that was otherwise prohibited, thus the term “Variance.”

Q: Okay, so we need to get a building permit for the roof over this deck. What material or information do you need to issue us the permit?

A: First, let’s find the original Area Variance approval to see what kinds of conditions were imposed, if any.

Q: We don’t have the actual Variance, we just remember getting it. Does the Code Office have the original records?

A: Yes, we should have it here. Our records are pretty good back into the early 1970’s.

If we can’t find the original application, we should have a copy of the minutes of the meeting… Ahhhhh-yes, here it is!

An application was made, and the Public Hearing was held regarding the construction of a 12-ft. by 20-ft. deck having a side line setback of 10 feet instead of the required 25 feet.

That sums up the original request of the applicant.

Q: That’s funny, the ZBA approved our deck at 20 feet off our side property line, not 10 feet. Why is that?

A: For whatever reason, the ZBA approved a lesser request than what was applied for.

Q: Can they do that?

A: Of course. The ZBA can impose reasonable conditions or they can approve a lesser request they believe appropriate for that particular situation.

Not all applications are the same, not all situations are the same therefore decisions are not automatically the same either.

Q: Again, all we want right now is to put a roof over the existing deck, and since the ZBA approved the deck it’s okay to put the roof over it, right?

A: Sorry, it’s not okay. The Variance was approved as it is, which is just a deck without a roof.

Q: Although the footprint is a little bigger, we are not getting any closer to the property line. Why can’t we build what we want and just keep it 20 feet off the side line like the ZBA has already approved?

A: The Variance was approved for exactly what was discussed and approved at the Public Hearing-an open deck, not a roofed deck, in that location and that size. Nothing larger or different.

Any Area Variance granted specifically only allows what was approved and does not apply to any other structures, buildings or anything else along the property line.

Q: So are you telling us we cannot put this roof over the deck?

A: That’s basically correct. The Code Office cannot issue you the building permit because what you are asking for is prohibited.

Q: Do we have any options or alternatives?

A: You can always apply for another Area Variance.

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Often misunderstood is how a previously approved Area Variance, granted by the Zoning Board of Appeals (ZBA), is applied to the rest of the property.

The simple answer is, it doesn’t apply to the rest of the property.

The approval is very specific to the request and does not allow anything else on the property to be the same as what was approved. That would be a separate variance.