Daily Development for
Friday, November 13, 1998

by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri

ZONING AND PLANNING; VARIANCE: Owner's purchase of property at a low price with the intent to seek a variance, and owner's knowledge that a prior owner had been denied a variance, do not constitute an absence of "good faith" for purposes of a statute permitting the granting of a variance.

Spence v. Board of Zoning Appeals, 496 S.E.2d 61 (Va. 1998).

In 1989, Owner purchased two lots, containing approximately 4,000 square feet, that had been platted in 1928. The property was located in a zoning classification requiring a 7,500 square foot minimum lot size. The two lots formed a triangular shaped corner property that was subject to a 30 foot zoning setback requirement on two of its three sides. The parties agreed that the size and shape of the property made the construction of a residential structure on the property impossible without a variance. A prior owner had been denied a variance. Owner requested front and side yard setback variances and a reduction of the parking space size. The Board granted the variance application. A neighboring property owner petitioned the trial court for a writ of certiorari to review the Board's decision.

The applicable statute required that the Owner show that his property was acquired in "good faith". The aggrieved neighbor asserted that Owner lacked the "good faith" required by the statute because (a) he had purchased the property at a low price with the intent to seek a variance, (b) he knew that a prior owner had been denied a variance. The court held that the purchase price of the property and Owner's knowledge that the prior owner had been denied a variance were irrelevant to the question of good faith. It acknowledged that the fact that a prior application had been denied might have some impact on the Board's determination concerning the variance, it did not affect the "good faith" status of the Owner.

The neighbor argued further that the Owner's hardship was "self inflicted," in light of the fact that Owner knew that he needed a variance in order to build a house on the property at the time that he purchased it. The court rejected this argument as well, noting that, if such a purchase constituted a self inflicted hardship barring a variance, nonconforming property could never be developed by obtaining a variance after a property is sold.

The court explained that the term "self inflicted hardship" applied to cases in which the applicant had already developed the property in violation of applicable zoning ordinances and then sought a variance to accomodate the change. Here, the Owner had done nothing, but was faced with a hardship resulting from the conformation of the lot and the technical requirements of the zoning laws a classic case for variance analysis.

Comment: As appropriate use of property generally is in the public interest, it would seem that the public interest is served by permitting variances to persons who can make a good case that the zoning laws not be applied rigidly to his property because of special circumstances. Part of the variance analysis always is that the overall zoning scheme will not be disrupted by the permitting of a minor departure in the instant case.

But the rhetoric of variance law often addresses the concept that variances are justified because otherwise an owner would be treated specially and inequitably. There is such rhetoric in this case:

"The very purpose of the statute is to afford any property owner an opportunity to seek a variance when a strict application of the zoning ordinance woudl effectively prohibit or unreasonably restrict the owner's use of the property, or would cause a demonstrable hardship approaching confiscation of the property."

It is difficult to argue that the zoning regulations constitute a "confiscation" of property that was acquired at a discounted price taking the zoning restrictions into account. As there are better public purpose rationales for variances that do not use the "confiscation" rhetoric, the editor is not concerned from a policy standpoint by the court's decision here to ignore the owner's discount price acquisition in this case.

Nevertheless, it should be noted that the statute says that the owner should have acquired the property in "good faith." What exactly did the statute drafters intend to require here? The court provides no answer but says only that the owner in this case met the standard. Intuitively, one would think that facts such as those present here would implicate the question of whether an owner had acquired the property in "good faith." Whether or not such facts are relevant to policy considerations as to whether a variance should be granted, a more fundamental consideration is whether the applicant has satisfied statutory prerequisites. It is unfortunate that the Virginia Supreme Court failed to elucidate the significance of the "good faith" requirement in this staute.

Here is another recent case that emphasizes the "hardship" aspect of the variance concept:

ZONING; VARIANCES; "HARDSHIP:" A landowner may not be granted a variance to build a deck that will not meet the minimum setback requirements of the zoning ordinance absent proof that the landowner would have no reasonable use of the land if the variance were denied.

State v. Kenosha County Bd. of Adjustment, 577 N.W.2d 813 (Wis. 1998).

The owner of lakefront property sought an area variance in order to add a deck to her home that, when completed, would be nine feet closer to the lakeshore than the 75 foot minimum setback required by the county shoreland zoning ordinance. The county board of adjustment granted the variance, finding that strict application of the ordinance would cause the owner to suffer unnecessary hardship because she would be denied a use that many other owners of property on the lake enjoyed (some of whom owned structures that were closer to the lake than the proposed deck would be) and her property would be less valuable without the deck. As additional support for granting the variance, the board also found that the deck would make the property safer by forming a barrier between the house and the steep slope to the lake, and that granting the variance would not cause harm to the public. The Wisconsin Department of Natural Resources (DNR) sought review of the board's decision, contending that the board applied the wrong standard for determining unnecessary hardship.

The board of adjustment argued that the test for unnecessary hardship is whether strict compliance with the ordinance would be unnecessarily burdensome to the owner. The DNR argued that the proper test is whether the owner would have a reasonable use of her property without the variance.

Held: Reversed. The court agreed with the DNR, holding that the reasons given by the board in support of the variance were insufficient to show that the owner would have no reasonable use of her property if the variance were denied.

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