Daily Development for Wednesday, March 3, 2004
by: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin Kansas City, Missouri dirt@umkc.edu

ZONING AND LAND USE; VARIANCES; HARDSHIP; “SELF CREATED HARDSHIP:” Parties who have already obtained one variance for the same use may get a subsequent variance to continue the use, notwithstanding the exception to the hardship use for “self created hardship,” but such exception will not benefit a party who has obtained a variance for a use (installation of a mobile home) on a given parcel if that party seeks a variance for the same use on a different part of the same parcel.

City of Russellville Zoning Board of Adjustment v. Vernon, 842 So. 2d 627 (Ala. 2002)

Vernon owned a parcel of property and sought to install a mobile home there for his daughter’s residence. The zoning ordinance prohibited mobile homes in this zone, but Vernon was able to obtain a variance for this use when he agreed to make certain modifications so that the mobile home looked more like an installed home.

Some years later, Vernon acquired another mobile home and intended to make the same modifications, obtain the variance, and rent out this mobile home (the lot involved was an entire city block, so there were no concerns about the size of the property, setbacks, etc.). When Vernon applied for a variance this time, however, the city refused to grant it.

Vernon sued on the grounds that an “unnecessary hardship” would be created if he didn’t receive a variance, since he had already bought the trailer in what he argued was a reasonable expectation that a second variance would be granted. The city, of course, responded that any hardship Vernon was under was “self created.” But Vernon pointed to two precedent cases in which the Alabama courts had recognized that an exception to the “self created hardship” rule applied when the applicant was attempting to continue a use for which a variance had already been granted.

The court did not agree that the precedent applied. In one of the precedent cases, a church obtained a variance to build a church building on a five acre parcel. Later, in order to raise money to build the church, it sold off two of the acres. Then it was told it needed a new variance, since the size of the parcel was less, and the city denied the second variance on the three acre lot. The appeals court held that the Church has suffered a unique hardship in its good faith expectation that the City would permit construction on the reduced size parcel.
“The Church’s unique financial loss occurred due to its reliance on the 1979 variance, not because it had purchased property not zoned for churches.”

In another case, a party operated with a variance to sell liquor. The variance expired, but the owner renovated the premises in the expectation that a new variance would be granted. Again, the court ruled that the expectation of the new variance caused the expenditure of the renovation costs, and created a hardship that was unique in character.

The court differentiated the instant case because it viewed the installation of the second mobile home as a separate and independent use from the first installation. Unlike the precedent cases, the new use was not a continuation of a single use for which a variance had already been issued. Vernon’s expectation that a variance would be granted was not, in the view of the court, a unique and special reliance. Indeed, it pointed out, to compel a variance here would lead to the conclusion that Vernon could continue to install an indeterminate number of mobile homes on his lot and get a variance for each. If this were the case, a zoning authority might be inhibited from granting a variance in the first instance.

Comment: The editor is sympathetic with the argument that to find an estoppel in the granting of one variance that would compel the granting of a subsequent variance would open the doors so wide as to discourage the granting of variances altogether. But the editor doesn’t understand why the same concern wasn’t at work in the precedent cases as well.

The construction of a church on a three acre parcel certainly is different from the construction on a five acre parcel. The granting of a variance to sell liquor for a twenty year period, say, is a very different from a decision as to whether a new variance out to be granted under conditions existing twenty years later. Why should the agency be bound to issue a new variance just because the applicant foolishly assumed that one would be forthcoming? In the editor’s view, the applicant here was correct in relying on those precedent cases. They are not adequately distinguishable from the instant case, except technically. But they probably are wrong, and therefore there is no reason to extend them here.

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