The Variance – Only God Understands

The Variance – Only God Understands

Variance Definition • Created to conform with the 1926 Standard Planning and Zoning Enabling Act • It is “an authorization to depart from the strict terms of the district regulations” • Originally described as a safety valve • Intended by the framers of zoning to offer relief when the strict application of the district regulations would be unfair

Variance – Uniform Application? Variance techniques and applications are generally quite uniform throughout the United States and generally in other counties However, most do not follow the rules

Two Types of Variances • The Use Variance • The Area Variance

The Use Variance • Generally, applicable in only a few Eastern State of the U.S. • The use variance is essentially a “spot zoning” change that allows a use not contemplated by the ordinance in a particular district • Or, in some states (and jurisdictions) the variance is actually a special use permit and/or an exception

The Variance (Area Variance) • Is a specific instrument that allows a departure from the strict requirements of the area requirements in each zoning district • Reduction in setbacks and yards • Reduction in required minimum lot size • Increase in maximum bulk to lot ratio • The BZA normally has a limited power with respect to the variance – such as a 10% reduction or increase

Core Principle The area variance is not intended to grant a benefit to a landowner. It is intended to “equalize” the rights of similarly situated land owners. The variance is not intended to grant more rights The purpose of the variance is to equalize rights One owner has less rights

Standards For An Area Variance • The variance is a discretionary instrument. It is not bound to be issued and is quasi-judicial • A variance is an “extraordinary instrument” or sometimes called an instrument of last resort. Excessive requests for variances in an indication of poorly designed zoning districts

Standard #1 - Listed • The variance must be listed in the ordinance and clearly authorized in the zoning district • “The Board of Zoning Appeals is hereby authorized to issue such variances as may be required to yards, bulk, and front setbacks in the R-1 Zoning District to correct hardships but now more than 20% of the required distance.”

Standard #2 - Hardship • The variance may only be granted upon the showing of a hardship and the hardship must be corrected by the variance. It must be unique to the subject property • The hardship is usually defined as “economic” • Real and not anticipated • Typically based on a measurable loss • In property rights as compared to those • similarly situated

Hardship Example HARDSHIP UNIQUE No Hardship Not Unique Double frontage lot (corner lot with two front setbacks

Standard #3 – Property Values • The Issuance of the variance will not diminish the property rights/values of others Existing houses with proposed new accessory garage with 30% reduction of side yard line

Existing Home Existing Accessory Existing buildings already exceed the 35% bulk ratio Standard #4 – Lawful Situation • The variance may not be used to correct and unlawful situation The building addition was constructed with an invalid permit

Additional Example The height of this home exceeded the maximum allowed elevation and height limitation. The owner applied for a variance – it was denied because it cannot be used to correct an unlawful situation The owner had to lower the roof line 2’ He also installed a new type fresh air vent

Standard #5 – Spirit of the Ordinance • A variance shall not be issued if it is contrary to the spirit of the ordinance • Example – Both the community plan and the physical development ordinance make it clear that the existing arterials should be protected from addition curb cuts • A restaurant applies for a conditional use to allow a drive through service window. This would require an additional curb entrance. • Applicant request a variance from the single entrance rule. Entrances, parking areas, and internal roads are a proper subject for a variance SEE EXAMPLE ON FOLLOWING SLIDE

Example – Violation of Spirit x

The Classic Case – Otto v Steinhilber 1939 • Otto has property along an arterial road that has two zoning designation: residential and commercial • The commercial portion lies along the arterial road to a depth of 150 feet; the remainder is zoned residential • The only access to the residential portion on Otto’s lot is by crossing the commercial portion of the lot • Otto wanted to build a larger skating rink – a use that is permitted in the commercial district

Otto’s Layout 237 feet Residential Area Zoned residential 614’ Rink 495’ Zoned commercial 539 feet Merrick Road

The Controversy • Everything went fine until Otto announced that the new skating rink would be a building with a front of 240 feet and a length of 434 feet • About 600 owners protested that it would degrade their property values of the rink was allowed to penetrate into the residence district • However, the Board granted the variance under the following findings:

The Findings • The lot lies within two zoning districts • The only means of access to the residential portion is by crossing over the portion in the commercial zone • Otto could erect the roller skating rink wholly within the commercial zone, but access to the rear portion would thereby be obstructed • That if the roller skating rink is restricted to the commercial portion of the land, parking of automobiles of patrons will necessarily have to be in the streets in that vicinity, whereas if the roller skating rink is granted a variance the automobiles could be parked on the sides of the building

And One Last Finding • In addition thereto, the intervener contends that he could not create a street over the commercial portion of his property outside of that to be occupied by the rink because of the width and grade required for a village street • Therefore, the Board found that Otto suffered an unnecessary hardship on this property Otto is Happy!

The Appeal • A coalition of the residents appeal • The court notes that before the Board can issue a variance, they must find that: • (1) the land in question cannot yield a reasonable return if used only for a purpose allowed in that zone; • (2) that the plight of the owner is due to unique circumstances and not to the general conditions in the neighborhood which may reflect the unreasonableness of the zoning ordinance itself; and • (3) that the use to be authorized by the variance will not alter the essential character of the locality.

Hardship – Who Has the Hardship? • Where is the hardship? • Otto has the same commercial rights as all businesses along Merrick Road • Just because there is lack of access to the residential portion of the tract does not indicate a hardship • Otto fails to show how a small rink, that could be located on the property, would not be profitable • Otto created the need for the variance by knowingly purchasing property that was in two zoning districts • No variance for Otto

Otto – After Learning That He was Not To Receive the Variance

VARIANCE City of Merriam v Bd. Of Zoning Appeals

Background • The BZA of Merriam KS issued a variance to Metroplex for a communications tower • The ordinance allows a communications tower in the Light Industrial district that is no higher than 75 • Metroplex applied to erect a 990 ft. tower • Metroplex is a communications company providing cellular, pager and emergency services

Current Situation • Metroplex currently maintains a 300 ft. tower near downtown KC • They claim that this tower is inadequate for increased communications activities • Metroplex enters into a contract to build a $3 office building and the 990 ft. tower • They apply to the BZA in Merriam • The Merriam BZA allows the variance

The Next Step • City of Merriam files suit against their BZA • Trial court reversed the decision of the BZA • There was no hardship • There was no uniqueness • Metroplex and the BZA appeal

Kansas Supreme Court • The State did not give the BZA the authority to Spot Zone • The BZA must follow the variance granting procedures to “the letter” • Metroplex claims that the site it wished to purchase was unique – but the court said there was nothing unique about the tower – it would just require a large site and there are plenty of those in the area

And Hardship? • The Court set three criteria for a hardship • Proof that it is impossible to use the property for a conforming purpose • Factors sufficient to constitute a hardship that would deprive the owner of his property without just compensation • Factors that constitute an interference with the basic right of property ownership

These mansions stand in the center of large grounds and rise, garlanded with roses, out of the midst of swelling masses of shining green foliage and many-colored blossoms. No houses could well be in better harmony with their surroundings, or more pleasing to the eye. -- Mark Twain, speaking of the Garden District. These mansions stand in the center of large grounds and rise, garlanded with roses, out of the midst of swelling masses of shining green foliage and many-colored blossoms. No houses could well be in better harmony with their surroundings, or more pleasing to the eye. -- Mark Twain, speaking of the Garden District. These mansions stand in the center of large grounds and rise, garlanded with roses, out of the midst of swelling masses of shining green foliage and many-colored blossoms. No houses could well be in better harmony with their surroundings, or more pleasing to the eye. -- Mark Twain, speaking of the Garden District. Na Orlens, Sanchez and the Garden District Today, the entire Garden District is on the National Register of Historic Places, offering visitors a veritable banquet of Antebellum, Greek Revival, Italianate, and Victorian architecture intertwined with a glorious, tangled profusion of blooming flowers and lush foliage.

Even Mark Twain Though It Was Unique These mansions stand in the center of large grounds and rise, garlanded with roses, out of the midst of swelling masses of shining green foliage and many-colored blossoms. No houses could well be in better harmony with their surroundings, or more pleasing to the eye. -- Mark Twain, speaking of the Garden District.

The Big Easy

Background • Jahncke owns 3 lots • He builds a home on lots on two of the lots • He sells one lot to Sanchez • Sanchez cannot obtain a building permit because the lot is smaller than required to construct a residence in this zoning district • Sanchez applies for a variance • The BZA denies

Sanchez v Bd. Of Adjustment of New Orleans The Garden District Lot 21 Lot 19 Lot 20 Lot B Jahncke House Coliseum Street

Court Trial • Sanchez appeals to district court • The Garden District intervenes • Before the trial the BZA settled and allowed the Sanchezs to build subject to some very strict agreements • The Garden District still insists that the variance should be denied

Decision • Trial Court reverses the BZA and grants variance • Decision notes that the lot should not be totally stripped on its building rights – this constitutes a hardship • The Garden District Appeals • The appellant court reviews • Garden District says that the trial court did not follow all the criteria for the issuance of a variance

Which Criteria Were Not Followed? • Must be unique to the subject property • Special conditions do not results from the actions of the applicant or other person who had an interest in the property • Must not be detrimental to the neighborhood or injurious to property values • Must not impair adequate light and air, cause congestion or over crowding

Appeals Court Decision • Sanchez created his own hardship and had constructive knowledge of the zoning restrictions • He shot himself in the foot • He paid his money and he took his chances

Anthony Sanchez At His Appeal

The Variance – Only God Understands