Variance permits

Variance permits are used to allow a project to deviate from an SMP’s dimensional standards (e.g., setback, height, or lot coverage requirements). A variance proposal must meet variance criteria found in state rule and be consistent with other environment and use requirements.

• Variances can only be granted where there are "extraordinary or unique circumstances relating to the property such that the strict implementation of the master program will impose unnecessary hardships on the applicant or thwart the policies of the SMA...".
• Applicants should not assume they have a right to a variance. It is a special exception from the regulations for which a justifiable need and extraordinary circumstances must be demonstrated. It is intended to assure fair treatment of someone with special property circumstances (not personal circumstances) and not to grant special privilege.
• The burden of proof is on the applicant.
• Local governments cannot use a variance to approve a use prohibited by the SMA or a local SMP.
• Local planners must consider the cumulative effects over time of granting additional permits for like actions in a given shoreline area.
• A variance may be required even if the proposed use is otherwise exempt.
• Local government staff must prepare a written analysis of how proposal complies with variance criteria.
• County-approved variances are sent to Ecology at the end of the local appeal period. Ecology must either approve, deny or condition every variance within 30 days of receiving a complete permit application.

Ecology encourages local governments to contact shoreline permit review staff early in the process of approving a conditional use permit if difficulties are anticipated.

In the ten-year period from 1993 - 2002, local governments issued 2,626 conditional use and variance permits, of which 101 were denied by Ecology.

Variance criteria

Under state rules found in WAC 173-27-170, upland developments (developments that are landward of the OHWM and wetlands regulated by the SMA) may be granted variances if the applicant demonstrates all of the following:

1. That the strict application of the bulk, dimensional or performance standards set forth in the applicable master program precludes, or significantly interferes with, reasonable use of the property;
2. That the hardship described in (a) of this subsection is specifically related to the property, and is the result of unique conditions such as irregular lot shape, size, or natural features and the application of the master program, and not, for example, from deed restrictions or the applicant's own actions. The most common variances are for residential setbacks (e.g. for a house, deck, or stairs to be located closer to the water than normally allowed). The types of circumstances that typically justify granting the variance include: that the lot was legally created prior adoption of the SMP; or a common setback line was established prior to adoption of the SMP; or the slope of the lot requires placing the building closer to have the least overall shoreline impact.
3. That the design of the project is compatible with other authorized uses within the area and with uses planned for the area under the comprehensive plan and shoreline master program and will not cause adverse impacts to the shoreline environment;
4. That the variance will not constitute a grant of special privilege not enjoyed by the other properties in the area;
5. That the variance requested is the minimum necessary to afford relief; and
6. That the public interest will suffer no substantial detrimental effect.

The criteria for allowing variances for developments proposed below the OHWM or in wetlands is the same, but stricter. In addition to demonstrating the criteria described in (b) through (f), above, applicants must also show:

• That the strict application of the bulk, dimensional or performance standards set forth in the applicable master program precludes all reasonable use of the property;
• That the public rights of navigation and use of the shorelines will not be adversely affected.

Variances must also meet criteria in WAC 173-27-140 which apply to all development.

The "unnecessary hardship" of the criteria recognizes all regulations may cause some degree of hardship and discomfort in their application. Variances should only be granted where the specific facts of the case indicate that the hardship is unnecessary when considering the purposes (policy basis) for which the specific standards were originally adopted.

Note that the shoreline jurisdiction area is not a setback requirement from which a variance can be issued. If a use is prohibited within a shoreline environment designation but allowed by the applicable zoning regulations, a variance cannot be used to reduce the 200 foot setback necessary to place the use where it is outside of SMA jurisdiction.

For all variance applications, consideration shall be given under the variance permit review process to the cumulative impact over time of granting additional permits for like actions in the area. In other words, if comparable developments were granted variances in the area where similar circumstances exist, the total of the developments must also be consistent with the SMA and must not produce substantial adverse effects to the shoreline environment.

For example, a variance for the size and length of a dock on a narrow slough for one site may not have a substantial adverse effect by itself but a series of such docks could make navigation on the slough very difficult. The initial variance request then could be denied based on future cumulative impact. The State Supreme Court addressed the regulation of cumulative impacts in Hayes v. Yount, 87 Wn.2d 280, 287-88, 552 P.2d 1038 (1976).

If a significant number of variances are granted from the same provisions of the master program in similar circumstances it may be time to consider amending the master program.