The variance: when your lot does not meet its district

It is Chapter 6.3 of Joint Regulation No. 9473. It defines the two kinds of variance, who considers them, on what criteria and under what conditions. Those who consider them are the Adjudicative Board, OGPe and the autonomous municipalities with hierarchy I to III to which that power has been delegated through the Transfer Agreement.

Every variance must be requested in writing by the property’s owner or an authorised representative, stating the grounds, basis and reasons supporting the request. For a use variance, the Adjudicative Board or the autonomous municipality with hierarchy I to III may consider it where it is shown that none of the uses permitted in the zoning district is feasible physically or economically. For a construction, subdivision or other variance, the applicant is someone who wants to keep using the property for the permitted use but needs to be excused from one of the district’s requirements to ensure that use is viable.

• Requesting the variance in writing, by the owner or an authorised representative, stating the grounds, basis and reasons supporting the request.Verified against the official source
• For a use variance, showing that none of the uses permitted in the district is viable economically or physically, and that the property is particularly affected by rules that are unnecessarily burdensome.Verified against the official source
• That the reasons for requesting the use variance be unique to the structure and not a generalised feature of the district, and not have been caused by the owner.Verified against the official source
• For a construction variance, that the variance’s magnitude be the minimum needed to ensure the permitted use is viable and that no other alternatives are viable to solve the problem presented.Verified against the official source
• Requesting comments from the Planning Board’s Hydrogeology Unit in areas prone to flooding or landslides.Verified against the official source

Information pending verification.

1. 1

   Step 1: The two variances, and why they are not the same

   A use variance is a permit to devote a property to a use prohibited by the zoning district’s restrictions, granted only by exception to avoid harm to a property where it is shown that, owing to extraordinary circumstances, strict application of those rules would amount to a taking of the property. A construction, subdivision or other variance is not aimed at altering the permitted use: it dispenses the owner from complying with one or more of the requirements the regulation sets for the zone or district where the property sits. Whoever asks for the second wants to keep using the property for the permitted use, but needs to be excused from a requirement so that use is viable.

2. 2

   Step 2: The warning the regulation writes itself

   It is worth reading in full before investing in an application: "Given the nature of the public interest in urban planning, variances are not favoured. They must be granted where extraordinary circumstances concur and to avoid harm to the property." And it goes on: the Adjudicative Board, OGPe and the autonomous municipalities with hierarchy I to III to which the power has been delegated "must never apply the requirements for approving variances laxly because that undermines the public policy of orderly development latent in planning legislation". This is not boilerplate: it is the standard your file will be read against.

3. 3

   Step 3: What must be proven for a use variance

   The regulation lists what is taken into account. First: the owner must show that none of the uses permitted in the district is viable on the property economically or physically, and must prove the property is particularly affected by the rules, which are unnecessarily burdensome. Second, and this is where many applications fall: the reasons for requesting the variance must be unique to the structure and not a generalised feature of the district where it sits, and must not have been caused by the owner. Third, a public hearing may be held. Fourth, OGPe or the municipality may exempt the hearing at the petitioner’s duly justified request.

4. 4

   Step 4: And what else is looked at

   The same list continues with criteria that look outside the property. The cost of adapting the property to the permitted uses and the benefit that would result once adapted. That the use for which the variance is requested be compatible with the purposes of the district and of the neighbourhood or community where it sits. And that the requested variance not adversely affect, among others, the availability of infrastructure, the context where it sits, the neighbourhood environment, the safety and tranquillity of neighbours; that the proposed use benefit the neighbourhood; and that the use be permitted by the regulation’s School Zones chapter.

5. 5

   Step 5: The five cases the Board does not delegate

   The Adjudicative Board may delegate to OGPe’s Auxiliary Secretary the evaluation and adjudication of any use variance, but only where the case does not fall into five situations: that it not involve the sale of alcoholic drinks; that it not generate dust, noise and atmospheric emissions; that it not handle, use or sell explosives; weapons sales; and that it not be located on specially protected rustic land. If your project touches any of those five, the decision does not go down to the Auxiliary Secretary.

6. 6

   Step 6: What must be proven for a construction variance

   Here the criteria are different. OGPe’s Auxiliary Secretary or the autonomous municipality with hierarchy I to III will authorise the construction, subdivision or other variance taking into account, among others: that the lot have a particular condition preventing compliance with the regulation’s provisions; that the lot have a special location or the particular use face a practical difficulty warranting special consideration; that the variance not harm neighbouring properties, the availability of infrastructure or the neighbourhood environment; that agricultural use, the land’s agricultural productivity and existing natural, historic or cultural resources not be affected; that, to vary density and intensity parameters, the proposed use be one contemplated in the district; and that the variance’s magnitude be the minimum needed to ensure the permitted use is viable and no other alternatives be viable.

7. 7

   Step 7: The four requirements that close the door

   The criteria section puts it in the negative: no construction, subdivision or other variance may be authorised, in whole or in part, unless the variance is necessary for the preservation and enjoyment of a property right and it is shown it will relieve a clearly demonstrable harm; that the authorisation will not adversely affect the enjoyment and value of nearby holdings in their present use and for any other future permitted use; that the petitioner is willing to accept the additional conditions and requirements imposed for the benefit or protection of the public interest; that comments be requested from the Planning Board’s Hydrogeology Unit in areas prone to flooding or landslides; and that the ecological integrity of the Agricultural or Natural Reserve or of Special Planning Areas not be affected, nor danger caused to existing natural, historic, cultural or agricultural resources.

8. 8

   Step 8: Public hearings: when yes and when discretionary

   For use variances, a public hearing may be held, and several variance requests may be considered in a single hearing; the filing requirements are those of the regulation’s public-hearing rule. OGPe or the municipality may exempt the hearing at the petitioner’s duly justified request. For construction, subdivision or other variances, holding a public hearing is discretionary. And in Special Planning Areas, OGPe’s Auxiliary Secretary or the municipality may hold administrative hearings; in that case the abutting owners of the parcel where the use is proposed must be notified, complying with the regulation’s sections on abutters and alternative notice.

9. 9

   Step 9: What a variance cannot do

   This is the sentence that saves wasted applications: the requested variance shall not have the effect of changing one district into another, since that constitutes a zoning change, which is the jurisdiction of the Planning Board or the autonomous municipality with hierarchy III to V, as applicable, and may be requested as such through the corresponding mechanism. If what you need is for your lot to stop being residential and become commercial, that is not a variance.

10. 10

    Step 10: Conditions, term, and what cannot be increased afterwards

    On authorising use variances, the deciding body will specify their nature and extent and set the conditions it judges necessary to ensure the criteria are met. The variances are subject to those conditions and to the regulation’s other provisions and any other applicable one. Breach of any of those conditions constitutes a violation of the regulation and may be sufficient ground for revoking the variance in all its parts. Every favourable decision on any variance has the term of the authorisation or permit under which it was considered. And one restriction worth keeping in mind from the design stage: once a use variance is granted, the density and intensity set in that authorisation may not be increased.

Before the Adjudicative Board, OGPe or the autonomous municipality with hierarchy I to III to which the power has been delegated through the Transfer Agreement, depending on the type of variance and the case. The Adjudicative Board may delegate use variances to OGPe’s Auxiliary Secretary except in the five situations the chapter excludes. Construction, subdivision and other variances are authorised by OGPe’s Auxiliary Secretary or the municipality with that hierarchy. The chapter publishes no forms, fees or decision deadlines, and this guide does not invent them.

• Asking for a variance to change the district: that is a zoning change, with a different forum and mechanism.
• Confusing the use variance with the construction variance: the criteria and the decider are not the same.
• Basing the request on a generalised feature of the district rather than a condition unique to the structure.
• Pleading a difficulty the owner created: the regulation expressly excludes it.
• Asking for more than needed: the variance’s magnitude must be the minimum to ensure the permitted use is viable.
• Taking the public hearing for granted: for use it is possible and waivable; for construction it is discretionary.
• Ignoring the conditions imposed when granting the variance: breaching them can revoke it in all its parts.
• Planning to increase density or intensity after a use variance, which the regulation prohibits.

These are the government pages this guide is based on.

• Oficina de Gerencia de Permisos (OGPe)

  OGPe

  docs.pr.gov

• Permit Management Office

  ogpe

  ogpe.pr.gov