Variances

What a variance actually is

A variance is board or architectural committee approval for one owner to build or maintain something that does not meet the standard everyone else is held to: a taller fence, a different roofing material, a closer setback. It applies to a specific request, not a category of requests, and it does not rewrite the standard itself.

What counts as a strong enough reason to grant one is set out in your own architectural guidelines or declaration, not a single legal test that applies everywhere. Read your governing documents before you rule on a request. Treat a variance as the exception you are documenting, not a workaround you are normalizing.

Why "exception" has to mean exception

A board's authority over individually owned property, including the standard a variance departs from, comes from a specific grant in the declaration or bylaws, not from the board's general sense that it is in charge. That matters here because a variance process run on a case by case feel, rather than consistent criteria, starts to look less like a narrow exception and more like the board quietly rewriting a standard it was never given open-ended authority to change.

"Consistent application of the guidelines" is what a court looks for before it will treat an association's design or use decisions as reasonable, along with deliberation and articulated reasons for the call.

Source: Restatement (Third) of Property: Servitudes, section 6.9, comment d, American Law Institute

The trap: inconsistent variances invite a selective enforcement problem

An association was "tolerating children residing in other units" while trying to enforce a no-children restriction against one family, and the restriction, enforced selectively rather than uniformly, could not be enforced against the family singled out.

Source: White Egret Condominium, Inc. v. Franklin, Supreme Court of Florida

The same exposure exists on the variance side. Grant a setback exception to one owner and deny an identical request from a neighbor with no documented reason for the difference, and you have handed the denied owner a selective enforcement argument, and possibly a waiver or estoppel argument too, depending on what the association said or did in between. A variance program with no written criteria can walk you into any of the three.

How to grant one without creating a problem

Before approving a variance, write down the specific fact that makes this request different: a lot's slope, an obstruction, a genuine hardship, not just that it seems reasonable. Apply that same reasoning the next time a similar request comes in, or be ready to explain in writing why this one is different. If the same request keeps coming up, that is a sign the underlying standard may need to go through your association's normal amendment process, see Changing existing rules, instead of being worked around one variance at a time.

And check first whether the request is actually a variance at all. A change needed because of a resident's disability is a reasonable accommodation under federal fair housing law, not a discretionary call the board can weigh against its preferences the way it weighs a fence height request.