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St. Mary's Law Journal

Abstract

Texas zoning law follows the national standards in creating boards of adjustment. Unlike most states, Texas does not allow its boards of adjustment to grant so-called “use” variances. A variance is essentially a legal waiver from compliance with certain land-use regulations which is granted to a landowner by a government entity in certain limited cases. There are two general types of variances: the area variance and the use variance. Use variance permits the property in question to be used in a manner totally different than that allowed by the ordinance. Whereas the area variance only modifies or relaxes the degree of restrictions outlined in the ordinance. Texas policy for granting variances has an important impact on regulatory “takings” cases. When landowners have claimed application of regulations amounted to a regulatory taking, Texas courts have stated the landowner must first seek a variance before the claim will be ripe for adjudication. Since Texas boards of adjustment cannot grant use variances, one might argue takings claims should not be required to apply for them as a condition of ripeness. Regulatory takings claims are ripe only if the government entity has made a final decision applying the regulation to the property in question. For land regulation, denial of permit is not “final” until the property owner’s development plan is finally rejected and denied a variance. Federal courts treat this as a condition precedent, and some Texas courts have followed this lead, which has led to confusion on the issue. The confusion surrounding the power of Texas boards of adjustment to grant land-use relief needs to be resolved. Some solution, either legislative or judicially declare should emerge, so Texas municipalities can have the flexibility to grant use variances, when appropriate.

Publisher

St. Mary's University School of Law

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