Variances, Appeals & Legal Considerations (Hardship vs Financial Convenience, Takings Law)
Key Takeaways
- Under 44 CFR 60.6, variances from floodplain management standards may be granted only upon good and sufficient cause, exceptional hardship, and a showing that the variance will not result in increased flood heights, additional threats to public safety, extraordinary public expense, create nuisances, cause fraud on or victimization of the public, or conflict with existing local laws.
- FEMA guidance treats pure financial hardship or economic convenience—wanting a lower construction cost or higher marketable floor area—as generally insufficient by itself to justify a variance from elevation or floodproofing standards.
- Variances should be rare, tightly conditioned, and documented; improper variance practices can jeopardize a community’s NFIP standing and leave residual risk for occupants and neighboring properties.
- Floodplain regulations that substantially advance legitimate public safety purposes and leave economically viable use of land are generally defensible against regulatory takings claims, but communities should still follow fair procedures, maintain records, and coordinate with legal counsel on high-stakes appeals.
Variances, Appeals & Legal Considerations (Hardship vs Financial Convenience, Takings Law)
The Variance Problem in Floodplain Management
Elevation, floodproofing, floodway no-rise rules, and V-zone foundation standards exist because flood risk is shared: one noncompliant building can endanger occupants, force public rescue costs, and—especially in floodways—raise water surface elevations on others. When local boards grant easy variances, they reintroduce the very risk the NFIP partnership was designed to reduce. FEMA therefore expects variances to be exceptional, not routine zoning “flexibility.”
For the CFM exam, know both the regulatory text of 44 CFR 60.6 and the policy posture in FEMA guidance: financial inconvenience alone is not the hardship the program contemplates.
Federal Minimum Criteria for Variances (44 CFR 60.6)
Communities must review variance requests against criteria that include, in substance:
- Good and sufficient cause for the variance
- Exceptional hardship to the applicant
- A finding that the variance is the minimum necessary to afford relief
- A finding that the variance will not result in:
- Increased flood heights
- Additional threats to public safety
- Extraordinary public expense
- Creation of nuisances
- Fraud on or victimization of the public
- Conflict with existing local laws or ordinances
Additional considerations often appear in model ordinances and FEMA desk references: the parcel’s physical characteristics, whether the structure is historic, whether alternative locations exist on the site, and technical evaluations for floodway and coastal hazards.
Floodway and Coastal Caution
Variances in the regulatory floodway are especially sensitive. If a variance would allow encroachment that increases base flood elevations, it conflicts with the no-rise principle underlying 44 CFR 60.3(d). In V/VE zones, variances that authorize fill, solid walls that obstruct flow, or non-elevated residential space below the required elevation undermine coastal standards designed for wave and hydrodynamic forces. Boards should demand engineering analysis when geometry or hydraulics are in question.
Exceptional Hardship vs Financial Convenience
What FEMA Guidance Emphasizes
Exceptional hardship relates to the unique physical characteristics of the property and the landowner’s ability to make reasonable use of it under the ordinance—not to the owner’s balance sheet alone. Examples that may support careful variance analysis (still case-by-case, never automatic):
- A lot so small or constrained by multiple setbacks that strict application leaves no practicable compliant building envelope and the proposal still avoids increased flood risk to others
- Certain functionally dependent uses (for example, docking facilities that must be in or over water) where elevation to residential-style standards is not practicable—subject to specific ordinance language
- Some historic structure provisions that allow limited relief when compliance would destroy historic integrity, often with conditions and alternative mitigation
Examples that are typically insufficient standing alone:
- “Elevation will cost too much” or “dry floodproofing reduces leasable square footage”
- Desire for a basement recreation room below BFE
- Preference for a slab-on-grade aesthetic
- Claims that flood insurance is expensive (insurance cost is not a substitute for construction standards)
- Hardship created by the applicant’s own actions (for example, buying a nonconforming SFHA lot cheaply and then claiming inability to elevate)
Self-Created Hardship
Boards should examine whether the applicant created the difficulty by subdividing land into unbuildable SFHA lots, by starting construction without a permit, or by designing a building that ignores known BFE constraints. Self-created hardship weighs heavily against approval.
Procedural Fairness: Appeals and Hearings
Local ordinances usually designate a board of appeals, planning commission, or governing body to hear variance requests and appeals of administrative determinations (including SI/SD findings). Sound process includes:
| Element | Why it matters |
|---|---|
| Written application | Defines the relief requested and the standards at issue |
| Notice | Informs neighbors and the public of potential residual risk |
| Hearing on the record | Creates evidence for judicial review and FEMA community monitoring |
| Findings of fact | Links the decision to each 60.6 factor; boilerplate stamps are weak defense |
| Conditions | May require elevation as high as practicable, flood-resistant materials, engineered openings, prohibition of conversion of enclosures, etc. |
| Recordation | Some communities record variance notices so future buyers learn of residual risk |
Appeal of an SI/SD determination is often a valuation or cost dispute (competing appraisals, contractor estimates). That is different from a variance from elevation standards. Administrators should keep the two tracks clear: first decide whether the 50% threshold is met under the definition; only then, if someone seeks to rebuild without full compliance, evaluate whether a variance could lawfully be granted under 60.6 (often it cannot if it re-creates severe flood risk).
Conditions, Expiration, and Tracking
When a variance is granted, conditions should be precise and inspectable. Examples:
- Lowest floor no lower than a stated elevation still as high as practicable
- No habitable uses below BFE
- Flood damage-resistant materials below required elevation
- Installation and maintenance of openings
- Prohibition on future conversion of enclosures
- Submittal of an Elevation Certificate upon completion
Communities should log all variances for CRS documentation (if participating) and for NFIP community assistance visits. Patterns of frequent elevation variances are a red flag.
Takings Law: A Working Overview for Floodplain Managers
Applicants sometimes argue that denial of a variance or enforcement of elevation requirements is a regulatory taking requiring compensation under the Fifth Amendment (applied to states through the Fourteenth). Floodplain managers are not litigators, but they should understand the policy landscape:
Core Themes from U.S. Takings Doctrine (Simplified)
- Government may regulate land use to protect public health and safety; floodplain elevation and floodway rules pursue classic safety and welfare purposes.
- A regulation may be vulnerable if it denies all economically beneficial use of an entire parcel (a high bar; often other uses remain—elevated construction, open space, parking, agriculture, depending on facts).
- Courts also apply multi-factor analyses (character of the government action, economic impact, interference with distinct investment-backed expectations). Buyers of mapped SFHA land often have reduced expectations of unregulated slab-on-grade construction.
- Exactions and permit conditions should relate to the flood impacts of the development (rough proportionality / essential nexus concepts in land-use law).
Practical Risk Management
Communities reduce legal and NFIP risk by:
- Applying standards uniformly
- Offering pre-application meetings to identify compliant designs
- Documenting scientific and map bases (FIRM, FIS, BFE)
- Separating genuine lot-of-record hardships from cost complaints
- Coordinating early with the city/county attorney on controversial cases
- Avoiding ad hoc deals that look like preferential treatment
Liability Myths
Granting an unlawful variance does not transfer flood risk away from the community or the owner; it may increase future disaster costs and undermine NFIP eligibility. Conversely, consistent enforcement supported by the ordinance and federal criteria is the normal, expected function of police power—not an automatic taking.
Historic Structures and Other Special Cases
Many ordinances include limited flexibility for historic structures listed on official historic registers when compliance would destroy historic character. Even then, decision-makers should minimize residual risk (flood-resistant materials, utility protection, elevation of vulnerable equipment) and document why full elevation is not feasible. Special cases are still exceptions, not a second, looser code for older buildings generally.
Exam Traps
- Treating “costs too much to elevate” as automatically exceptional hardship
- Ignoring the “no increased flood heights / public safety” findings
- Confusing SI/SD appeals (facts about 50%) with variances (relief from standards)
- Assuming any board vote legalizes noncompliance for NFIP purposes without meeting 60.6
- Believing takings claims always succeed when elevation is required—generally false when viable elevated use remains
Variances sit at the intersection of engineering risk, administrative fairness, and constitutional property law. The CFM-level expectation is conservative use of variances, rigorous findings, and clear preference for mitigation and compliance over permanent residual risk.
Under 44 CFR 60.6 variance criteria, which applicant argument is generally considered insufficient by itself under FEMA floodplain management guidance?
A board of appeals is considering a variance to allow a new residential lowest floor two feet below the BFE in an AE zone. Which finding would most clearly conflict with minimum NFIP variance criteria?
Which statement best describes a sound approach to regulatory takings concerns when a community denies a variance and requires elevation of new construction in the SFHA?