Daily Development for Thursday, August 27, 2009
by: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Husch Blackwell Sanders
Kansas City, Missouri

ZONING LAND USE; VARIANCES; AREA VARIANCES:  Where there is  no evidence that strict application of zoning ordinances would result in an economic injury to builder relative to other similarly situated lot owners, variance will be denied, even when builder will make less money than he otherwise might.  

Town of Munster Bd. Of Zoning Appeals v. Abrinko, 905 N.E.2d 488 (Ind. App.).

Appellants appealed the decision to grant a developmental standards variance to construct a single-family residence. Appellants raised three issues on appeal, which the court of appeals consolidated and restated as the following single issue: Whether the trial court erred in reversing the BZA's grant of a developmental standards variance when the BZA found a practical difficulty pursuant to Indiana Code section 36-7-4-918.5.

Precision applied for a developmental standards variance to construct a 4,200 square foot house on its property. The Munster Town Code section 26-512(3) requires an R1 zoned residence to have side yards totaling 25% of the entire lot width at the building line with a minimum of 10% on either side. Compared to other lots in subdivision, the Property is unique because it has an acute reverse pie shape, with the street frontage totaling 121.42 feet wide and the rear property line totaling 55.81 feet.

Precision sought a zoning variance to reduce the rear side yard zoning requirement from 25% to 20% due to the unique pie shape, while still maintaining the 10% on either side as required by the Munster ordinance. Precision's application explained that the variance would allow it to construct a single family home similar in size and style to the other residences in White Oak Estates.

The [BZA] voted 4-1 to grant the proposed variance. The trial court conducted a hearing on a neighbor’s appeal petition and thereafter issued an Order, reversing the BZA's decision. The trial court concluded, in pertinent part: that given the record that a single-family home was being built amidst other similar single-family homes in that subdivision and that its size was similar to adjacent properties, the [BZA's] record was sufficient to support the first and second elements of I.C. [ ] 36-7-4-918.5(a). But that it was insufficient to support the [BZA's] finding under subsection (3), that there is a practical hardship to the application of the zoning ordinance due to the configuration of the lot. 

The court of appeals found that the evidence that indicates it is the lot shape, as opposed to the size of the house, which causes the practical hardship as lacking. The court further found that the BZA's finding of a practical hardship does not rest upon a rational basis because the supporting evidence is so meager. The court acknowledged that an area variance does not affect the use of the land, is less drastic in effect and does not pose the threat of an incompatible use in the neighborhood.  The documentary evidence submitted by Precision to the BZA visualizes that the proposed home had difficulties complying with the zoning requirements because of the reverse pie shape of the lot. In further support of its claim of economic injury, Precision focuses on testimony before the BZA stating that the proposed house would have to be reduced by 300 to 400 feet if the zoning requirements had to be followed. Precision relied on the inference that a smaller house means less profit and th

erefore the BZA evidently determined that the smaller house would cause a significant economic injury. However, the appeals court's review revealed a record "completely devoid of any evidence establishing an economic impact by following the zoning requirement."

There was no evidence indicating the footage of other homes in the subdivision; no evidence leading to the conclusion that a smaller house is not similar in aesthetics to the adjacent homes; no evidence of Precision's financial hardship if it were to build a smaller home. The evidence submitted merely established that the proposed home had difficulties complying with the zoning requirements because of the shape of the lot. The appellate court found that none of the evidence supports the BZA's general finding that building the home would amount to practical difficulties if the builder has to comply with the ordinance because of the lot's reverse pie shape and that the basic findings "come very close to being merely a general replication of the requirements of the ordinance at issue." See Network Towers, 770 N.E.2d at 845. Thus, the appellate court agreed with the trial court in that the quantum of legitimate evidence before the BZA was so "proportionately meager" that they could no

t but conclude that the BZA's finding did not rest on a rational basis. Therefore holding that trial court properly reversed the BZA's grant of a developmental standards variance because there was no rational basis for the BZA's finding of practical difficulties.

Comment 1: This was a slickly argued appeal, and the editor believes a properly reversed variance.  The builder was not restricted from building a house on the lot, and in fact didn’t demonstrate that the house it could build was any smaller or less valuable than other lots in the neighborhood.  It argued simply that the lot shape prohibited it from building a “mini-manse” from which it could derive maximum profit.  Surely this is not economic hardship, but the argument is a difficult one to make when the BZA has already decided that it is.

Comment 2: The inference (set forth in the caption) that the court will look to the profitability of this lot versus similarly situated lots in the same neighborhood is one drawn by the editor based on the language of the court, but he welcomes disagreement (although that is not always apparent.)

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