Friday, April 4, 2008

“Waiver” vs. “Variance”: What is the difference?

Under the City and County of Honolulu’s Land Use Ordinance (“LUO”), a landowner can avail himself of a waiver or variance permit. Both entitlements provide a dispensation from existing limitations under the LUO, but the waiver process is very different from the variance process.


A waiver is a “minor” permit. Under LUO Sec. 21-2.130, the director of the Department of Planning and Permitting grants waivers after notice to adjacent property owners, and usually without a hearing unless one is requested by neighboring property owners upon a finding of “sufficient cause.” The director may grant a waiver from the strict application of the development or design standards of the LUO for a limited number of uses enumerated in the LUO. Two examples are (i) proposals for the creation of lots designated for landscaping purposes which do not meet minimum lot area or dimensions, and (ii) proposals to retrofit improvements when required by federal mandates like the Americans with Disabilities Act.


The director hears and determines petitions for varying the application of the zoning code to a specific parcel of land. The director may grant a variance, under the Charter Section 6-1517, if the director finds that application of the LUO will cause an “unnecessary hardship” to the landowner. At a duly noticed public hearing, based on evidence presented by the applicant, the applicant must show the following:

(1) the applicant would be deprived of the reasonable use of such land or building if the provisions of the zoning code were strictly applicable; (2) the request of the applicant is due to unique circumstances and not the general conditions in the neighborhood, so that the reasonableness of the neighborhood zoning is not drawn into question; and (3) the request, if approved, will not alter the essential character of the neighborhood nor be contrary to the intent and purpose of the zoning ordinance.

(Emphasis added.)

Hawaii courts have held that “reasonable use” is not the use most desired by the property owner, but the inability to make any reasonable use of the land without the variance. The “unique circumstances” prong has to do with whether specific attributes of the particular parcel are present that justify the request for a variance; i.e., an owner's unusual plans for a parcel do not, in themselves, generate “unique circumstances.” See, Korean Buddhist Dae Won Sa Temple of Hawaii, Inc. v. Zoning Board of Appeals of City and County of Honolulu, 87 Haw. 217 (1998).

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