The following cases involve area variances in the context of land use law and disability:
Ward v. Cuyahoga Falls Bd. of Zoning 2015 Ohio Misc. Lexis 636 (Ct. Com. Pl. May 28, 2015)
Tags
- Area Variance
- Practical Difficulty
- Shed
Story
Jonathan Ward was granted a permit to construct a 16’ x 40’ shed on his property. The permit allowed for the height of the shed to be 17’. After Ward purchased a pre-engineered and pre-fabricated shed from a home improvement store, the City Planning Commission received complaints from Ward’s neighbors regarding the construction of the shed in Ward’s backyard. The City conducted an inspection and found that the shed had characteristics that did not match the plans submitted to the County and City, specifically the total height of the building and the inclusion of a carport. In response, Ward requested variances to allow the shed to remain unchanged on the property and they were denied by the Board.
Holding/Reasoning
However, the court held the presence of staff did not require different treatment and that because the borough zoning board’s failure to consider the home a “family” property, they failed to provide a reasonable accommodation. The accommodation was also necessary to provide the home’s occupant with the same or equal opportunities as individuals without disabilities. Nor did the accommodation impose an undue financial and administrative burden on the borough, or require a fundamental alteration in nature of zoning scheme. In fact, the Borough did not provide any evidence to show the accommodation was not reasonable.
When applying for an area variance, it is sufficient that the application show practical difficulties, that is whenever the area zoning requirement unreasonably deprives a property owner of a permitted use of the property. Practical difficulties including, but are not limited to: (1) whether the property in question will yield a reasonably return or whether there will be any beneficial use of the property without the variance; (2) whether the variance is substantial; (3) whether the essential character of the neighborhood would be substantially altered or whether adjoining properties would suffer a substantial detriment as a result of the variance; (4) whether the variance would adversely affect the delivery of governmental services; (5) whether the property owner purchased the property with knowledge of the zoning restriction; (6) whether the property owner’s difficulty can be avoided through some other method other than variance; (7) whether the intent behind the zoning requirement would be observed and substantial justice done by granting the variance.
Here, the court found that the property could continue as a beneficial use as a single family home without the accessory building, the height increase from the original plans was not a substantial deviation from the permitted structure, the accessory building would not be a substantial detriment to the character of the neighborhood because it was at the back of a one-acre property surrounded by a fence and trees, there was no evidence that the variance would adversely affect the delivery of governmental services, and that the carport was in violation of the zoning requirement and Ward knew of the square footage restriction however the extra height added to the shed was not contrary to the spirit of zoning requirements which are to protect the upkeep of a residential neighborhood, home values and clutter control.
The court concluded that the Board’s decision on the shed was arbitrary, capricious, unreasonable and unsupported by the preponderance of substantial, reliable, and probative evidence, and that the Board’s decision on the carport was supported by the preponderance of substantial, reliable, and probative evidence.
Matter of Marina’s Edge Owner’s Corp. v. City of New Rochelle Zoning Bd. of Appeals, 129 A.D.3d 841 (App. Div. 2015)
Tags
- Area Variance
- Zoning Board
- Arbitrary and Capricious
Story
A co-op corporation owned a 211-unit building as well as an unimproved lot adjacent to the building. The corporation wanted to construct a parking lot adding 28 more parking spaces. The lot was located in a two-family residential zoning district which provides for a maximum of 4 off street parking spaces. The corporation filed for an area variance after the permit to construct the proposed parking was denied because it would be in violation of the zoning code. The Supreme Court of New York reasoned that local zoning boards have broad discretion in considering a variance application.
Holding/Reasoning
In determining whether to grant an application for an area variance, a zoning board must weigh the benefit to the applicant against the detriment to the health, safety, and welfare of the neighborhood or community if the variance is granted. Other factors the court considers are whether granting the area variance will produce an undesirable change in the character of the neighborhood or a detriment to nearby properties, the benefit sought by the applicant can be achieved by some method feasible to the applicant other than an area variance, the requested are variance is substantial, the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood, and the alleged difficulty was self-created.
The court found that the Board’s decision to deny the variance was conclusory and lacked an objective factual basis because the Board was only presented with objections and general community opposition of neighboring property owners who presented their opinions as to the negative aesthetics of a parking lot rather than evidence demonstrating that the health, safety, and welfare of the neighborhood would be detrimentally affected by the granting of the requested variance. The Zoning Board of Appeals (ZBA) also failed to explain how increasing the number of spaces in the parking lot would change the character of the neighborhood, nor did they have an objective basis to conclude that the corporation had a feasible alternative to the requested variance. The court concluded that the ZBA’s determination was irrational, arbitrary, and capricious and ordered the ZBA to issue the requested area variance.