Definition
VARIANCE has three distinct legal meanings, each operating in a separate doctrinal context.
1. Pleading and Evidence (Classical Meaning). A discrepancy between two instruments or procedural steps in the same proceeding that, by law, must agree. The most common forms are: (a) a mismatch between a plaintiff's pleaded allegations and the evidence offered at trial, and (b) a disagreement between the writ and the declaration as to the cause of action. A variance is fatal to the claim when the discrepancy is material — that is, when it goes to the substance of the cause of action rather than to form alone. A minor or immaterial variance, one that does not mislead or prejudice the opposing party, is generally disregarded.
2. Land Use and Zoning. An official government authorization permitting a property owner to deviate from an applicable zoning regulation. Variances are granted by a zoning board of appeals or equivalent administrative body when strict application of the zoning ordinance would cause unnecessary hardship to the property owner. This is the dominant modern usage in American legal practice and the meaning most researchers encounter in contemporary sources.
3. Criminal Pleading. A divergence between the offense charged in the indictment and the offense proved at trial. A material variance in criminal cases may require dismissal, acquittal, or a new trial on the ground that the defendant was not given adequate notice of the charges.
Common Language
Modern common usage (Wiktionary): A difference between what is expected and what is observed; deviation. Also, the state of differing or being in conflict. In statistics, the second central moment of a probability distribution.
Historical common usage (Webster's 1913): The quality or state of being variant; change of condition. Also, difference that produces dispute or controversy; disagreement; dissension; discord.
Editorial note: In ordinary English, variance connotes any divergence or disagreement — a broad, untechnical sense. In law, the word does real work: it identifies a specific structural defect in a pleading or proceeding, or a specific administrative permission. The zoning sense — an official permit to do what is ordinarily forbidden — runs nearly opposite to the common intuition of variance as mere difference or conflict. Researchers should not let the colloquial sense guide interpretation of either legal usage.
Common Confusion
Variance (zoning) vs. Exception vs. Special Use Permit. These three are frequently conflated. A variance permits deviation from an existing regulation due to hardship specific to the property. A special use permit (also called a conditional use permit) authorizes a use that the zoning code expressly contemplates in certain zones subject to conditions — no hardship showing is required. A nonconforming use exception protects pre-existing uses that the zoning scheme grandfathers rather than eliminates. Conflating these in historical sources may misrepresent whether a landowner had a right or merely a discretionary grant.
Variance (pleading) vs. Amendment. A variance is an involuntary defect exposed at trial; an amendment is a deliberate correction made to cure a pleading before or during litigation. Modern rules (e.g., Federal Rule of Civil Procedure 15) have dramatically reduced the practical consequences of variance by liberalizing amendment rights, a shift that older authorities do not reflect.
Recognized Forms
/SUBTYPES
In zoning law, two subtypes are formally recognized:
Use Variance. Permission to use property for a purpose not permitted in the applicable zoning district. Courts and commentators treat use variances as exceptional and subject to stricter scrutiny, because granting them effectively rezones the parcel.
Area Variance (also called Dimensional or Bulk Variance). Permission to deviate from a dimensional or physical regulation — setback requirements, lot coverage limits, building height, and the like — while remaining within the permitted use category. Area variances are more routinely granted and apply a less demanding hardship standard in most jurisdictions.
Why It Matters in Research
Research traps are different depending on which sense of variance is at issue.
For pleading variance: The classical doctrine developed at common law when rigid correspondence between writ, declaration, and proof was essential. Historical cases, particularly pre-code decisions, treat even minor discrepancies as potentially fatal. Modern researchers applying code pleading or federal notice pleading rules must resist importing that strictness. The Federal Rules of Civil Procedure and their state equivalents have substantially abolished the fatal variance doctrine; cases decided before those reforms often cannot be cited for propositions about modern practice without adjustment.
For criminal variance: The constitutional dimension — adequate notice under the Sixth Amendment and double jeopardy protections — persists in modern law, making pre-code criminal cases somewhat more transferable than civil cases. But the terminology in older sources is not always consistent, and "variance" is sometimes used interchangeably with "surplusage" or "defect in the indictment," requiring careful reading.
For zoning variance: This meaning was essentially unknown to the historical dictionaries below. Zoning as a legal institution did not emerge in the United States until the early twentieth century; the corpus of historical dictionary authority is therefore silent on the most common contemporary usage. Researchers working with pre-1920s sources will not find zoning variance doctrine at all. Post-1920s sources vary considerably by jurisdiction on the hardship standard, the use/area distinction, and the procedural requirements for board of appeals review. The Law Mind encyclopedia entry on zoning variances is the appropriate starting point for the substantive doctrine.
Corpus connections: Variance in pleading connects directly to res judicata and collateral estoppel research — whether a prior judgment bars a subsequent claim may turn on whether the cause of action in the later suit is the same as or different from the earlier one, a question that tracks variance analysis. Zoning variance research connects to takings and due process doctrine when variance denials are challenged as unconstitutional.
Historical Dictionary Support
The historical sources are in substantial agreement on the pleading sense. Black's (both editions) and Bouvier define variance as a discrepancy between two instruments or procedural steps that ought to agree, with illustrations centered on the writ-declaration-evidence chain of correspondence. Bouvier usefully distinguishes variance in substance (fatal, grounds for demurrer or arrest of judgment) from variance in form (tolerated), a distinction the court-focused Black's entries leave somewhat implicit.
Anderson's entry is anomalous. The excerpt associates variance with proof-sheets and probate in a way that appears to reflect editorial fragmentation in the source text rather than a coherent alternative definition. The core statement — "failure of proof to correspond with the allegation" and "a disagreement between the allegations and the proof in some matter which, in point of law, is essential" — is consistent with the other sources but arrived at through a garbled presentation. Researchers should treat Anderson's entry on this term with caution.
What all historical sources miss entirely: the zoning sense. The term's dominant contemporary meaning — the administrative land use authorization — is wholly absent. This is not an oversight; it is a chronological artifact. Researchers must supplement these sources with twentieth-century authorities for any zoning research.
Jurisdictional Note
The use variance / area variance distinction, and the hardship standards applied to each, vary considerably by state. Some jurisdictions apply a unified hardship test; others impose a near-prohibition on use variances. New York's treatment — imposing strict "unnecessary hardship" requirements for use variances and a more flexible "practical difficulties" standard for area variances — has been widely influential but is not universal. Researchers should identify the controlling state standard before applying any general authority.
Encyclopedia Cross-Reference
Zoning — Variances (Use Variance vs. Area Variance, Hardship Requirements), The Law Mind Property Law Encyclopedia (property_97)