A variance is a "flexibility" device that allows a local government to provide a property owner with relief from the normal application of a restriction in the zoning code, such as minimum lot or building size or set back requirements. And it also applies to relief from a sign code provision. In effect, a variance works like a special code section or exception, specifically enacted by the local government on behalf of a specific property, or property interest. And once granted, a variance "runs with the land." In other words, subsequent owners are entitled to the same "right to vary" as granted the original applicant.
A sign permit applicant should request a variance when special circumstances, unique to the property in question, would create practical difficulties or hardship if the applicable code section is enforced as written. A business owner should never hesitate to request a variance if strict adherence to the sign code would seriously compromise the visibility of the subject sign, and thus potentially harm the economic viability of the business. This situation can occur, for example, when a significant grade difference exists between the property and an adjacent street or highway from which the business is expected to draw significant vehicular traffic. In such cases, limitations on height, type or location may render the site virtually invisible to passing motorists.
In the event a code provision, if enforced, would seriously impede a sign's ability to communicate with passersby, and thereby destroy most of a site's economic utility, then a variance should be granted. If a variance is not granted in these or similar circumstances, the government must justify its restriction on protected speech by proving the restriction advances a substantial state interest that cannot be advanced in a manner less burdensome on speech.
When applying for a variance, the prudent business owner will consult a signs valuation expert to construct a cost-benefit analysis. The analysis should not only discuss the benefits of the proposed sign to the business and the costs to the business if not permitted, but also the benefits that will likely accrue for the community if the proposed sign is permitted.
In most cases, the benefits conferred on the community by a business able to maximize street visibility outweigh the costs to the community if the code is not strictly enforced as to the applicant. Generally, restrictive sign codes are enacted under the umbrella of "improving community aesthetics." Seldom do these codes take into consideration the benefits that flow from a local business that is economically viable because its sign catches the attention of mobile consumers who may have either a present or future need of the business's product or services. The benefits flowing from a successful business minimally include enhancement of local tax bases and employment opportunities. Additional benefits include preservation of a healthy business zone in lieu of deterioration when business fail and leave to locate further out. Blight and flight often lead to urban sprawl-something most communities would like to avoid.
The evident benefits of attractively designed and appropriately visible, legible and readable signs should outweigh the subjective aesthetic factor. Most of today's sign companies can craft a sign that reflects community standards while still effectively communicating to potential customers or clients.
