Daily Development for Friday, August 9, 2002

By: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
prandolph@cctr.umkc.edu

Here are a "good news" variance case and a "bad news" one. Take you pick depending upon your overall mood.

ZONING AND LAND USE; VARIANCES; LARGE PARCELS: Fact that parcel proposed for variance is quite large is not an obstacle to granting of variance; further, a zone change is not necessary, and a variance is appropriate based upon the fact that other parcels in the area are zoned for a more intense use, rendering the zoning limitations on the subject parcel inconsistent with the area and a limit on value. Janssen v. Holland Charter Twp. Zoning Board of Appeals, 2002 Westlaw 1494081, No. 226452, LC NO. 990032727-AZ (Mich. App. 7/12/02)

The proposal was for 250 units on two contiguous parcels totaling 200 acres, currently zoned agricultural. Applicant had already sought and been denied a zone change for this parcel.

Subsequently, in negotiations with zoning officials, applicant modified the proposal and sought instead a variance. Opponents argued that the only appropriate course of action was to seek a zone change, as by definition the "special circumstances" necessary to support a variance would not exist throughout a vacant 200 acre parcel and the impact on the community would necessarily be too great to support a variance of this size, and that a variance under such circumstances was de facto rezoning..

The Zoning Board of Appeals granted a use variance. The court here upheld that decision, indicating that there was no authority stating that size per se was an obstacle to the use of the variance technique.

The court noted further that the "unnecessary hardship" standard applied here because the income derived from the property was about $19,000 per year while the taxes were about $7900. The ZBA concluded that this did not yield a "reasonable economic return." It pointed out that the property in the general neighborhood had largely been put to more intense residential uses because, before a general rezoning that created the agricultural zone, the area had largely been zoned industrial, but the master plan support conversion to residential.

Comment: This strikes the editor as a rather generous variance opinion, particularly on the question of justification for the variance. The editor is familiar with lots of folks who are holding agricultural zoned properties leased for farming uses that return no better than the figures discussed by the court here. They'd be delighted to learn that they were suffering "economic hardship" sufficient to warrant the granting of a zoning variance for more intense uses?

The court tells us nothing about how it measure the question of "reasonable economic return" and whether the price the owner paid, which undoubtedly was a speculative price based upon the possibility of getting modification of zoning restrictions, established the basis for this determination. ZONING AND LAND USE; VARIANCES; "HARDSHIP:" Developer's inability to create more lots and increase profits does not create "substantial hardship" justifying variance. Perez v. Board of Appeals of Norwood, 765 N.E.2d 768 (Mass.App.Ct. 2002). The question presented in the case was the validity of variances granted by the board of appeals of Norwood ("Board"), allowing the defendant, Vara, to proceed with a proposed residential subdivision on three acres of land. The land Vara wanted to develop consisted of three separate lots. The proposed development would contain seven new lots and abut an earlier subdivision named Varwood Circle. Vara wished to develop land fronting Varwood Circle, as well as two other properties.

Vara's land already contained many deficiencies relative to the current Norwood zoning by-laws. A house and detached garage were built prior to the enactment of the by-laws, but would remain standing in Vara's subdivision plan. These structures encroached into the required front and side yards. In addition, the Vara land lacked sufficient frontage on Rock Street under the current by- law. To provide access to the various new lots, Vara wished to construct a cul-de-sac perpendicular to Varwood Circle looping around the plaintiffs' property. The Norwood zoning board and the trial judge decided that Vara met all the requirements for a variance; namely, Vara had demonstrated that a literal enforcement of the by-law provisions would involve substantial hardship to the petitioner and desirable relief could be granted without substantial detriment to the public good and without nullifying the intent of the by-law.

The appellate court held, however, that Vara's desire to maximize his profit on the subdivision development did not constitute "substantial hardship" under the zoning by-law. Vara's choice to separate lot 6 from available, conforming frontage on his proposed new cul-de-sac indicates that his hardship is self-inflicted, a fact which cannot support the relief granted by the trial court. The variance cannot be sustained, and the trial court judgment was reversed.

Readers are urged to respond, comment, and argue with the daily development or the editor's comments about it.

Items in the Daily Development section generally are extracted from the Quarterly Report on Developments in Real Estate Law, published by the ABA Section on Real Property, Probate & Trust Law. Subscriptions to the Quarterly Report are available to Section members only. The cost is nominal. For the last six years, these Reports have been collated, updated, indexed and bound into an Annual Survey of Developments in Real Estate Law, volumes 1‑6, published by the ABA Press. The Annual Survey volumes are available for sale to the public. For the Report or the Survey, contact Maria Tabor at the ABA. (312) 988 5590 or mtabor@staff.abanet.org

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