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State change to variance test could ease separation rules; council told staff will update code
Summary
Staff told the council a new state law replaces the high 'no economic return' variance standard with a lower 'practical difficulties' test for numerical limitations, which could make it easier for the Board of Adjustment to grant exceptions to separation and setback rules.
City legal staff told the City Council a recently passed state legislative change alters the standard for zoning variances that involve numerical limitations — such as separation distances, setbacks, lot and building sizes — and described how the change may affect local decisions.
"The change that the state passed this most recent session ... changes the standard under which a variance can be granted," Gary Guidelock, assistant city attorney, told the council. Under the prior test, property owners had to show the zoning left "no possibility of any economic return" — a high bar that courts had reinforced, he said. The new law adopts a "practical difficulties" test for variances from numerical limits, which Guidelock said is an easier threshold to meet.
Why it matters: Staff and councilors said the practical difficulties test will give the Board of Adjustment more discretion to grant relief when a strict separation or numerical requirement would otherwise block a proposed use that appears reasonable to the board. Staff noted the board need not grant variances automatically; the new test only lowers the legal hurdle.
Staff described practical effects: in past cases the board sometimes wanted to permit uses but could not meet the stricter hardship test; with the practical difficulties standard, the board could be more likely to approve narrowly tailored relief for separation distances or setbacks. Council members said the change will help resolve many site‑specific, historical quirks in an older city.
"Practical difficulty is much, much lighter than hardship," one council member said, welcoming the change and noting it will help residents with small, atypical lots. Staff said they will review the local zoning code (chapter 134) to align local variance procedures and definitions with the state law and bring amendments to Planning & Zoning and then the council.
What's next: Staff said the change requires local code edits to match the new state standard. Draft amendments will be brought to the Planning & Zoning Commission and ultimately back to council as part of a batch of zoning updates.
Ending: The council signaled support for the staff review and asked staff to prepare code revisions that reflect the state’s new variance test and explain how it will affect conditional‑use and separation requirements in specific zoning districts.
