Also known as: variances
Written by attorneys · grounded in primary & secondary sources — see below
2 senses
A difference between the allegations in a charging instrument and the proof introduced at trial. Such a variance requires reversal only if it affects the defendant's substantial rights by depriving fair notice or creating double-jeopardy exposure.
A difference between the allegations in a charging instrument and the proof introduced at trial. Such a variance requires reversal only if it affects the defendant's substantial rights by depriving fair notice or creating double-jeopardy exposure.
Select any source to read its text and confirm it supports the definition.
Administrative relief from the literal terms of a zoning ordinance granted when strict enforcement would impose unnecessary hardship on a particular parcel because of its unique characteristics. The variance must not be contrary to the public welfare and must preserve the spirit of the comprehensive plan.
Select any source to read its text and confirm it supports the definition.
Administrative relief from the literal terms of a zoning ordinance granted when strict enforcement would impose unnecessary hardship on a particular parcel because of its unique characteristics. The variance must not be contrary to the public welfare and must preserve the spirit of the comprehensive plan.
Each sense below has its own examples, sources, and questions.
Prosecutors charged Vanessa Vega with theft on March 15. At trial the evidence showed the taking occurred on March 22. The defense moved to dismiss, arguing the date discrepancy misled preparation. The court denied the motion because the variance did not affect Vega's substantial rights. She had full notice of the transaction and suffered no prejudice in mounting her defense.
The indictment alleged one overarching conspiracy among several defendants. Trial evidence instead revealed multiple independent schemes sharing only a common middleman. The variance between the single-conspiracy charge and the proof of separate conspiracies did not affect substantial rights because each defendant received adequate notice and the jury instructions prevented spillover prejudice.
In a capital sentencing challenge, statistical evidence showed racial disparities in death-penalty outcomes. The model produced an r-squared value indicating it explained less than half the variance in sentencing decisions. The court treated the unexplained variance as fatal to the claim that race impermissibly influenced any particular verdict, because the model could not isolate the effect on the defendant's case.
Reversal is required only when the variance deprives the defendant of fair notice of the charges or exposes the defendant to double-jeopardy risk. Under Rule 52(a) any variance that does not affect substantial rights must be disregarded.
Supporting sources
No. A fatal variance misleads the defendant or risks double jeopardy but does not change the crime charged. A constructive amendment alters the essential elements so the defendant may be convicted of an offense the grand jury never approved.
Victoria Vernon owns a triangular corner lot whose shape prevents construction of a code-compliant garage. She applies for a variance from the side-yard setback. The zoning board finds the lot's unique configuration creates unnecessary hardship not shared by neighboring rectangular parcels and grants the variance subject to landscaping conditions that protect the neighborhood character.
Penn Central owns Grand Central Terminal, designated a landmark. Strict height limits prevent construction above the terminal. The company applies for a variance allowing additional floors to generate reasonable return. The landmarks commission denies the variance after finding the terminal already earns a reasonable return under existing restrictions, preserving the public interest in historic preservation.
A state statute banned contraceptive counseling for married couples. Challengers argued the law varied from constitutional concepts of liberty by intruding on marital privacy. The Court held that the statute's breadth created an impermissible variance with protected zones of personal autonomy, rendering the prohibition unconstitutional even though no explicit textual right addressed contraception.
The applicant must show that the zoning ordinance imposes unique hardship on the particular parcel because of its special characteristics and that the variance will not be contrary to the public welfare or the comprehensive plan.
Supporting sources
A variance grants relief from a literal restriction when hardship exists. A special exception permits a use expressly authorized by the ordinance only upon satisfaction of stated conditions. It is not a relaxation of the ordinance itself.
No. Most jurisdictions refuse a variance when the owner created the hardship, because the owner cannot claim the ordinance imposes unnecessary hardship that the owner brought upon the property.
…from constructing a 55-story office building above the terminal. Moreover, the law permits the owner of a landmark to obtain a variance if the landmark cannot earn a reasonable return on its investment. Appellants have not applied for such a variance. They have not shown that the terminal cannot earn a reasonable…