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Thread: Variance hardship interpretations

  1. #1
    Cyburbian zman's avatar
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    Variance hardship interpretations

    Working on a variance to the square footage limitation for an accessory dwelling unit in town. This is a large lot (McMansion area) and the code calls for an accessory DU to be sized at 30% of the principal residence or 800 square feet, whichever is smaller.
    This house is 4900sf, which would allow for 1470sf of accessory size, which in turn means that the limitation for this case is 800sf.
    The applicant is constructing this for his aging folks and after playing with the design a bit, came back to me saying he needs 1000sf because his father requires a special sleeping room for a medical condition. However, throughout our working together, he has let it slip out that 800sf is "only big enough for an efficiency apartment" and part of me thinks that he is looking for the increase because of the aforemention medical reasons, but also because he just wants a bigger place.

    Which hardship is more believeable. I cannot recommend approval of the variance based on his contention that 800sf is too small, but do the medical reasons hold up?


    Also, having trouble with what this place will be after his folks pass on. One neighbor called contending that this will be rented out, our town manager thinks the same thing, but nothing in our code prohibits renting and I am reluctant to condition the property to prohibit renting the unit. (in the name of burdening property rights, etc.). Rather, I may defer this to the HOA, which in such a high-priced neighborhood would most-likely have something to say about renters.
    You get all squeezed up inside/Like the days were carved in stone/You get all wired up inside/And it's bad to be alone

    You can go out, you can take a ride/And when you get out on your own/You get all smoothed out inside/And it's good to be alone
    -Peart

  2. #2
    Cyburbian mike gurnee's avatar
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    Attach it to the house so it is no longer accessory...no variance needed.

  3. #3
    Cyburbian JimPlans's avatar
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    Quote Originally posted by mike gurnee View post
    Attach it to the house so it is no longer accessory...no variance needed.
    My first thought. If he is caring for his elderly father (good for him), why separate the accessory dwelling unit from the house? Wouldn't that make it harder to know what was going on and to respond to emergencies?

    Of course, he may want to make space for a live-in/overnight caretaker, which could be driving his worry about an efficiency apartment.

    My BS detector goes up because I know that the average hospital room is much smaller than 800SF, so what equipment is he putting in there? An MRI? This article (page 4) mentions 335SF as the average size of a new hospital room in a recently-built hospital, and even that seems big to me. When my grandfather was ill and moved in with us, he had a hospital bed and oxygen in an 8x10 room (because that's all the room we had).

    As for rental issues, I agree that the HOA is probably the best control on that, assuming that it restricts rentals. I would be reticent about asking him to give up his property right to rent an accessory apartment if he has it otherwise.

    So, for whatever reason, he seems to be angling for a second bedroom. Even if all he wants is a room for a live-in, it sounds like this is not what the ordinance intends. I was taught that we "zone for the use, not the user." The use will survive the user, so don't let sentiment cloud the decision. 800SF seems large enough for what he wants to do. If he wants to present a highly detailed argument otherwise, that's on him. Maybe he can make his case.

  4. #4
    Cyburbian Plus Scout's avatar
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    You need to find out if the HOA will allow the structure. The applicant needs to bring HOA Board approval with stated square footage to the ZBA hearing.

    If designed correctly, I don't see why 800 SF can't meet the applicants needs.

    Just remember, the "hardship" is short-term; the building is long-term. Hold to your ordinance. Cheers.

  5. #5
    Cyburbian
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    I don't know the rules in your state, but in the two states where I've worked, the standard isn't just "hardship" for granting a variance, but four or five really tough standards like: 1. Problem isn't created by the person requesting the variance; 2. property in question cannot yield a resonable return if used only under the regulations of the ordinance; 3. the plight of the petitioner is due to unique circumstances; 4. the variation will not alter the essential character of the area; 5. Variance is not based upon a desire to make more money from the property....

    Is the standard just "prove a hardship" in your community?

    In my community the case you mentioned would not meet any of the standards and would, therefore, not be approved.

    Sounds like the petitioner wants more "because he wants it"...this isn't a hardship at all.

  6. #6
    Cyburbian dvdneal's avatar
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    I have to agree with Southsideamy, my community doesn't hand out any variances. No one can meet the requirements (we're a newer community so don't have odd lots).
    The medical hardship doesn't hold weight, they can redesign the guesthouse to accomodate a larger bedroom. Sorry, you're living room or kitchen will be smaller.

    We usually help people get around the variance through attaching the guesthouse to the house - then there is no accessory number.

    I also try to remember the sympathy vote. I'm not approving a use based on the issues the applicant has. It's cruel but it has to be done.

    Good luck, I hate doing variances.

  7. #7
    Chairman of the bored Maister's avatar
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    Having 'medical problems' has never constituted a basis for hardship for any zoning board in any community I've ever worked in. At least in Michigan hardships must pertain to exceptional conditions related to the property and not the condition of the occupants. Variances go with the land, after all.
    People will miss that it once meant something to be Southern or Midwestern. It doesn't mean much now, except for the climate. The question, “Where are you from?” doesn't lead to anything odd or interesting. They live somewhere near a Gap store, and what else do you need to know? - Garrison Keillor

  8. #8
    Cyburbian rcgplanner's avatar
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    Same case here in Indiana, the hardship must pertain to the land. My Planning Director gave me a great analogy that I use when I am struggling with a variance, he called it "Castle in a Swamp". If there was an ordinance that required all castles to be built to a certain build to line and a property had a swamp in that area, a variance may be justified. The swamp is a unique component to the property that prevents compliance with the ordinance. While of course, this is an oversimplistic way of looking at variances, it is a good place to start. Using this analogy, I can't see many size variances being justified. I tend to stick to the strictest interpretation of the variance standards and let the petitioner make their justification to the Board. So far my recommendations haven't come back and bit me, at least too hard.

    We recently dealt with a case of a resident who wanted to build a taller fence than what was allowed in the ordinance. His justification was the fact that he had 2 small grandchildren and a neighbor with a "dangerous dog" had moved in 2 houses down. Staff's position was that while sympathtic to the resident's concern, variances run with the land. The dog or your family may not always live in the same house, but the variance will continue after you or the dog leaves. Staff recommended the variance be denied and the BZA after some debate agreed.

    If this were me I would recommend denial and let the resident plead his case as why 800 s.f. isn't enough to the Board.

  9. #9
    Unfrozen Caveman Planner mendelman's avatar
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    zman - is the accessory unit actually detached, or is "accessory" just used instead of other words such as "subordinate" or "ancillary"? As for the justification for the larger SF, I guess it depends on you ZBA's culture. Mine would probably approve it especially with the "medical condition" argument, but your may be tougher. Good luck.

    My variation standards are the same as southsideamy's (we're in the same state), but our process and ZBA is much more lenient. First, it is a Dept. policy that we don't provide a recommendation to the ZBA. We are here to process the application, provide a report with the pertinent details and attend the hearing for technical assistance. The ZBA reviews the petitioner's argument in the context of the review criteria and make a decision. The outcome is different than most of you seem to have - about 95% of all variations are approved.

    Most times the a justified, because we are a relatively old muni that was eventually subsumed in the greater Chicago metropolis and is half destination and bedroom community. Since about 30% of our structures were built under different zoning codes and requirements we have alot of noncomforming buildings, especially for sideyard setbacks. People want to do additions and follow the lines of the existing building (for cost and design efficiency), but need variations to accomplish it. Most of this are approved, along with the typical "medical condition", "dangerous dog", etc. pleas.

    I don't get any heartburn by the ZBA's virtual rubber stamp, except when they deny something that they have approved a dozen times before for no good reason.
    I'm sorry. Is my bias showing?

    Let's not be didactic in this profession, because that is a path to disillusion and irrelevancy.

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  10. #10
    Cyburbian
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    Many Cyburbians seem to think that this variance doesn't meet the necessary criteria for a hardship, to which I agree, especially Maister. First, your customer is creating the need (desire) for the variance and second, the issue is personal to him rather than an issue with the land. We have found anectodally, that 60-70% of our variance requests don't meet the necessary criteria for a hardship and we don't support it. We do give recommendations and our PC and BoA occasionally will go against them but not often. At least staff has maintained consistency. Yeah, we're hard on variances. They usually aren't needed as much as wanted.

  11. #11
    Cyburbian zman's avatar
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    Well, this being the semi-rural west, I believe that it will be accepted and approved regardless of staff recommendation.
    I do appreciate the insight into this "pickle" of a variance and will formulate your thoughts as I finalize the report today.

    Ho-hum. I hate variances.
    You get all squeezed up inside/Like the days were carved in stone/You get all wired up inside/And it's bad to be alone

    You can go out, you can take a ride/And when you get out on your own/You get all smoothed out inside/And it's good to be alone
    -Peart

  12. #12
    Cyburbian
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    Yeah, variances suck. Take Mendelman's advise, let them rubber stamp it in spite of your recommendation and then skip the heartburn.

    Our recommendations include carefully crafted recommended motions. Sometimes, we anticipate that we'll be overturned and prepare a "back pocket" opposing motion that we whip out just before they vote. Then they don't have to agonize about crafting their own motion, which they aren't really equipped to do. Good luck, but you won't need it - you're just doing your job.

  13. #13
    Cyburbian Otis's avatar
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    Words I live by in this kind of situation: Show up, do your best, detach from the result.

  14. #14
    Off-topic:
    Variances of both use and development standards led me to junk our old variance apps, which were way too generic, and replace them with more specific applications, where each statutory criterion is framed as a question for the applicant to answer. Two things have happened as a result: the quality of applications my BZA gets has improved 100-fold, and folks that were led to believe that this was just a formality (coughrealtorscough) have realized that it ain't that simple.

  15. #15
    NIMBY asshatterer Plus Richmond Jake's avatar
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    Quote Originally posted by Gedunker View post
    Off-topic:
    ....where each statutory criterion is framed as a question for the applicant to answer....
    Off-topic:
    Good idea and I'm stealing it!! Hey, I'll give you credit in a #1 size font footnote.
    RJ is the KING of . The One

  16. #16
    Cyburbian Tide's avatar
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    I think it may be time after this to size the ADU regulations with the lot and primary structure size. 800sf is small for a ADU especially if it has a kitchen and bathroom, which it probably does. If you are concerned over illegal renting do you have a renting ordinance to help weed out those ADUs that are legit for homeowner use vs. renting? What, in your opinion, is the purpose of the 800sf limit and what is your normal Accessory use limit.

  17. #17
    Cyburbian Otis's avatar
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    zMan how is this going? I don't see how the applicant could have made a case for the first two of your variance criteria.

  18. #18
    Cyburbian zman's avatar
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    Quote Originally posted by Otis View post
    zMan how is this going? I don't see how the applicant could have made a case for the first two of your variance criteria.
    The item got shelved at Monday's night's meeting at the applicant's request (scheduling conflict). We continued it on the record to the August meeting (so that we needn't send another notice out).

    This gives me more time to:
    -Deny the request for variance (based on his hardship claims)
    -Make a case for changes in our Accessory Dwelling size allowances

    I will also look to re-vamp our application as stated above in order to out the burden of proving hardship on the applicant from the get-go.
    You get all squeezed up inside/Like the days were carved in stone/You get all wired up inside/And it's bad to be alone

    You can go out, you can take a ride/And when you get out on your own/You get all smoothed out inside/And it's good to be alone
    -Peart

  19. #19
    Cyburbian zman's avatar
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    Taking this tonight. Variance request is denied (with my bleeding heart feeling bad because I did not say this to the applicant sooner). However, if it gets overturned I will not be heartbroken.

    Need to reply to a Trustee member wondering about this item. My plan, get the Board of Trustees and the applicant into a conversation regarding the item and let things fall where they may. (As is the custom out here on the High Plains).
    You get all squeezed up inside/Like the days were carved in stone/You get all wired up inside/And it's bad to be alone

    You can go out, you can take a ride/And when you get out on your own/You get all smoothed out inside/And it's good to be alone
    -Peart

  20. #20
    Cyburbian
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    My town ZBA approves a lot of these, and I think that they would allow 1000 sqft for hardship. A lot of folks here don't really believe too strongly in zoning, anyway, and basically believe that you have the right to do pretty much what you want with your land. This is still small town New Hampshire, afterall, and we still tell jokes about the excesses of "snob zoning" and code enforcement horror stories.

    Most Americans don't like being told what to do, and really intend for zoning to apply to developers who are creating large subdivisions. Most generally want those developers to simply conform to what local folks are coming up with--not to be told what to do themselves.

    Permits and variances? When in doubt, dish them out.

  21. #21
    Cyburbian ThePinkPlanner's avatar
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    Accessory Units

    Like some others here, it would not pass the state's criteria for a variance which are based on restrictions of the land.

    On a bit of a side note, I've seen a few people lament about the limitation of 800 sf for the accessory apartment. I don't know about your town or state, but accessory apartments were required by statute here in VT to fill a very real need for smaller, affordable units, with restrictions, that would limit them from looking or functioning as separate units. 800 square feet seems very reasonable to me to fill this general need. My husband, son, and I lived in 888 square feet (single family, detached) for four years without any problem. This included a formal dining room, two bedrooms, and tons of toddler toys. Without knowing the details of a medical requirement, I'd be hard pressed to understand why 800 square feet wouldn't serve the need that most accessory dwelling unit ordinances are meant to fill. If we start talking about larger units, what then separates these adu's from duplex apartments?

    In my town, I find we have the opposite problem. We are a relatively affluent community with many homes larger than 4,000 sq ft. I've begun to see many accessory dwelling units which approach 1800 or 2000 sq ft. That hardly seems accessory to me at that point.

  22. #22
    moderator in moderation Suburb Repairman's avatar
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    Quote Originally posted by zmanPLAN View post
    Taking this tonight. Variance request is denied (with my bleeding heart feeling bad because I did not say this to the applicant sooner). However, if it gets overturned I will not be heartbroken.

    Need to reply to a Trustee member wondering about this item. My plan, get the Board of Trustees and the applicant into a conversation regarding the item and let things fall where they may. (As is the custom out here on the High Plains).
    Just a thought, but do you force your Board to make findings of fact specifically stating how it meets the standard for a variance, as part of the vote?

    I worked with our City Attorney to force our ZBOA to begin following that practice. It virtually eliminated unsubstantiated variance approvals.

    "Oh, that is all well and good, but, voice or no voice, the people can always be brought to the bidding of the leaders. That is easy. All you have to do is tell them they are being attacked and denounce the pacifists for lack of patriotism and exposing the country to danger. It works the same way in any country."

    - Herman Göring at the Nuremburg trials (thoughts on democracy)

  23. #23
    Cyburbian
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    I love your Goering quote. That approach has become standard practice in modern times--even in western nations.

  24. #24
    Cyburbian
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    Accessory buildings in our ordinance are anything smaller than the principal structure. Technically, your McMansion guy could build an accessory apartment that's 4899 sq ft. However, accessory apartments or in-law suites are only permitted by right or conditional use in our rural base zoning and rural residential.

    However, our BZA does not hand out variances. In fact, our Board of Supervisors threatened to take legal action against the BZA if they granted variances that did not meet the state requirements. Whenever the citizens don't like what they hear regarding zoning, they yell about getting a variance. We have to diplomatically tell them there's no way in hell they're getting that variance, but if they'd like to waste their money, hey we don't care.

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