Training clarifies legal tests for variances, practical versus unnecessary hardship

Porter County planning officials were given guidance on the legal standards they must apply when reviewing variance requests, including the distinction between use variances and development‑standards variances.

Presenter K.K. Gerhard Fritz told the group that state law requires variances to be decided against a set of objective criteria and emphasized that a use variance requires satisfaction of five statutory factors. She summarized the guiding standard by asking rhetorically, “Is it whether somebody's nice, whether they're handsome, whether they bake good cookies, or what is it? Well, here's what Indiana law tells us.”

Fritz outlined the five factors used for a use variance: protection of public health, safety and welfare; effect on adjacent properties; whether the property is peculiar compared with others (a unique physical condition); whether denying relief would cause an unnecessary hardship; and consistency with the comprehensive plan. She said applicants must meet all applicable criteria and that “it's gotta be all off or nothing.”

She contrasted the high bar for a use variance with the lower practical‑difficulties standard used for development‑standards variances (signs, setbacks, parking), where the inquiry asks whether following the ordinance causes practical difficulties in using the property rather than an “unnecessary hardship.” Fritz clarified that courts have repeatedly held that economic loss or financial difficulty alone does not satisfy the unnecessary‑hardship test.

Fritz advised boards to make written findings of fact that explicitly address each criterion if they approve or deny a variance, and noted that repeated grants of the same variance can signal that the ordinance should be amended. She also cautioned officials about informal compromise solutions that leave open ambiguous conditions, saying such compromises can lead to litigation if they are not carefully written.

The presenter recommended that staff reports clearly state whether the application meets each legal criterion, so commissioners and BZA members can make decisions that will withstand judicial review.