The Use Variance: Zoning Savior or Annihilator?
Zoning Practice — November 2020
By Josh Whitehead, AICP
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Variances provide limited relief from the strict application of zoning standards. While the variance is as old as zoning itself, commentators remain divided on its merits. For some, it is a safety valve providing relief from unnecessary or excessive governmental intervention in the marketplace; for others, it is a “cheat” for scofflaws seeking to avoid playing by the rules. This division is especially true for use variances, which allow owners to establish or maintain a land use that is otherwise prohibited by the zoning code, resulting in a de facto rezoning.
This edition of Zoning Practice reviews the history of the use variance, with a special focus on how states and local communities have refined their approaches in response to key court decisions. And it highlights approval criteria and procedures that Memphis and Shelby County, Tennessee, and other communities use to curb use variance abuses.
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About the Author
Josh Whitehead, AICP
Josh Whitehead, the managing partner of Whitehead Law, is a sixth-generation Tennessean who has served in multiple roles in local government. While Planning Director at the City of Germantown, he helped author the SmartCode that spawned a rebirth of that city’s core. He subsequently served as assistant city attorney for the City of Memphis, where he ushered the adoption of the Unified Development Code, the first major re-write of its zoning code in nearly 30 years. Due to his work on that initiative, he was appointed as the head of the joint Memphis and Shelby County zoning department, a position he held for more than 11 years. During his tenure, he shepherded more than 2000 land use applications through the zoning entitlement processes as Memphis’ core experienced an unprecedented level of reinvestment.
Whitehead holds a master’s in community planning from the University of Cincinnati and a juris doctor from the University of Memphis. For the past decade, he has served as an adjunct professor at the University of Memphis’ law school, specializing in land use. Whitehead has been published in law review journals on issues related to housing and blight but is most active on a blog that features his take on Memphis’ design, history and architecture, cremedememph.com.