The Difficulty of Challenging a Variance

Challenging a variance in California can be very difficult.  In the recent case of Eskeland v. City of Del Mar, 224 Cal. App. 4th 936 (4th Dist. 2014), a property owner purchased a home with a pre-existing non-conforming structure. His front lawn was shorter than 20 feet, violating the city’s zoning ordinances. On top of that, he wanted to build a new house on the same, non-conforming footprint as the house he bought, because the steep elevation on one side of his property made it unfeasible to remodel in a way that did meet the zoning requirements. He applied for a variance, which was conditionally granted.  His neighbors tried to prevent him from going through with the remodel,  arguing that his plans were in violation of the city’s municipal codes. Earlier in the year, a court ruled that he could keep the house’s footprint as it was when he bought it, and build a new house on the footprint too. This case provides valuable guidance for California property owners regarding variances and non-conforming structures.


For one thing, if a property owner has the City Council’s approval for a variance, it will be very difficult for neighbors to successfully fight it. As the California Supreme Court has affirmed, administrative decisions are given a strong presumption of correctness, so successfully appealing such a decision to the courts will be difficult.

Furthermore, when an administrative board approves a non-conforming structure, those opposed to it will have the burden of showing an abuse of discretion on the part of the administrative body. This is a difficult burden to overcome, because it will require proving that the structure is objectively unworthy of being granted a variance.

Also, even if the neighbors were able to prove that the administrative board could have ruled another way which was just as reasonable or more reasonable, that is not enough to overcome the burden of proof.  The neighbors will have to prove that the administrative board’s finding was unreasonable given the circumstances.

Finally, it is important to understand that variances are granted based on a balancing test of feasibility and hardships. In this case, the city council determined that although it was technically feasible for the property owner to remodel in a way that met the zoning requirements by re-leveling the entire area, re-leveling would be an unreasonable hardship. In the end, this was one of the main reasons why the Court of Appeals denied the neighbor’s challenges to his plans.

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