Posted On: January 27, 2013 by The Snyderman Law Firm

Variances and the New Castle County Board of Adjustment

I've been asked to help a Delaware homeowner appeal from the New Castle County Board of Adjustment's decision denying his application for a variance. Although an attorney was not required when he submitted his application or when he appeared at the public hearing to present his application to the Board, his chances of success would have been greatly enhanced had he been represented by counsel.

In New Castle County, the zoning laws can be found it what's known as the Unified Development Code (or UDC).

When you apply for a variance, you are asking for permission to use your property in a way that is either prohibited or restricted under the zoning law. In Delaware, there are two kinds of variances. One is a "use" variance. The other is an "area" variance. A use variance allows a property to be used in a way that is completely prohibited. For example, you may wish to seek permission to use a former residential mansion site for commercial office space.

On the other hand, an area variance allows you to use your property in a way that complies with the zoning restrictions, but you are alllowed to deviate from building restrictions such as setback requirements or height restrictions.

If you apply for a use variance, you must show "unnecessary hardship." The test for an area variance is "exceptional practical difficulty." In my next article, I'll discuss the differences between these two tests.