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Thread: Approving code variances

  1. #1
    Cyburbian
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    Approving code variances

    Is it common to approve EVERY variance applied for? Since passing a sign ordinance in the mid 1990ís every variance applied for has flew through. (Except for one commissioner who is questioning why we passed the ordinance if we never follow it)
    http://www.jg-tc.com/articles/2006/0...ews/news01.txt

    It is the same way with zoning variances; setbacks, lot coverage etc. I have never seen a variance applied for that wasnít approved.

    I think this stems from the BZAP and Planning Commission being made up of people that are either on there so they have something to do one night every two weeks and not having a professional planner on staff. No one wants to make anyone else mad and they donít understand why the standards were put in place to begin with.

  2. #2
    Cyburbian Coragus's avatar
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    Quote Originally posted by savemattoon
    Is it common to approve EVERY variance applied for? Since passing a sign ordinance in the mid 1990ís every variance applied for has flew through. (Except for one commissioner who is questioning why we passed the ordinance if we never follow it)
    My city had the same problem with signs. The Board got so fed up with the nubmer of sign variances that they made signs special uses and forced them to go through site plan review.
    The cookies are worth the drive

  3. #3
    Cyburbian
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    Turn this into a positive. Recommend changing the ordinance to incorporate the changes that typically are being approved through variances. Kills two birds with one stone: less variance requests and you codify what appears to be acceptable requirements.

  4. #4
    Quote Originally posted by gkmo62u
    Turn this into a positive. Recommend changing the ordinance to incorporate the changes that typically are being approved through variances. Kills two birds with one stone: less variance requests and you codify what appears to be acceptable requirements.
    Indeed. If the Board of Appeals becomes the Board of Approvals, you must amend the code. Here, variances are difficult (some cities in Indiana won't even consider a use variance) and they depend on practical difficulties in the use or development of the property as zoned. We approve a lot of development variances only because it is difficult to apply standards to fit every lot in a 200-year old development pattern.

  5. #5

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    Our town hasn't issued a varance in years. And we are currently paying big time in hassle and money for one that was done in 1992. If you are issuing more than one or two variances a year either amend the code, as suggested here, or repeal it.

  6. #6
    Cyburbian
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    Also, I think the city administration should have the cajones to fight a variance that the board illegally approved. In our neck of the woods, an appeal goes to the court of competent jurisdiction (district court) and they only review the record. We fought a variance our board of Adjustment approved (although there was absolutely no hardship as required by state code) and got it overturned by the court.

    We have struggled with our board members receiving the required training to do the job. They just do not seem that interested or cannot grasp the fact that they can't approve something just because the applicant is a nice guy and live long resident. Since we sued our board, they have not approved a variance. We went 4 years without an approval. We got 3 new members and all of a sudden everything got approved. The lawsuit worked wonders.

  7. #7
    Unfrozen Caveman Planner mendelman's avatar
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    Yeesh....we grant variances all the time. Our system allows variances to be approved by both the Zoning Board of Appeals, the Design Commission, and the Plan Commission.

    Zoning Board of Appeals reviews variances for development projects that are 'as of right' and they have the final say on the variance. Of the 60+/- cases we have a year, they approve about 95% of them. Granted, most of the variances coming to the ZBA are for house additions on existing non-conforming houses. You do have a couple commercial projects every year, but they area much more 'hard' on them.

    Design Commission only grants variances for signs and are generally pretty hard on petitioners and deny most of them.

    Plan Commission can grant variances when associated with a subdivision, special use, land use variation, PUD, and rezoning. Generally, the varaince requests in this venue are very scrutinized and usually central components to the development proposal.

    Generally, the variance requests at ZBA and PC are not that abritrary and there is most often a actuall hardship. Though, I would like to change some sections of the code to reduce the number certain variance requests.

    BTW, signs are always a sticky issue and that's why I am very glad I no longer have to deal with sign code administration.
    I'm sorry. Is my bias showing?

    The ends can justify the means.

  8. #8
    Super Moderator luckless pedestrian's avatar
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    I have worked with Boards of Approvals and I wouldn't necessarily say it's because of a poor code - often they just "feel bad" for people and thus are emotionally driven with their decision making practice and it has nothing to do with whether the code is working or not - if the particular code language is working fine for everyone else and you have a few people that it's not working for and they get their way, maybe they just get their way -

    I think you have to see if there's a trend with a certain requirement before you spend time looking at Code -

    remember: all variances are legal until you get to court

  9. #9
    Cyburbian
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    What makes a variance illegal?

  10. #10

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    It depends on your state statute. There are some significant differences. But ideally a variance should only be issued where the owner has no conforming use without the variance. This eliminates 99% of variance requests. For example, if the owner has a conforming single-family home, he/sheshould not be able to get a variance to expand it. There can't possibly be a hardship because there is already a conforming use.

  11. #11
    Cyburbian
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    What Lee said. Our statute is very clear that the reason for the variance cannot be created bythe property owner. In this case, the property owner started to build a 1200 square foot detached garage in his front yard that was 6 feet from the ROW ( 25 feet required, but accessory buildings were not permitted in the front yard). We issued stop work orders and ordered it removed, but he kept building it. When it went to court, the court ordered it removed. At court he said it wasn't economically feasible to remove it (state statute also says that a hardship cannot be economic in nature).

  12. #12
    Forums Administrator & Gallery Moderator NHPlanner's avatar
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    Here's the standard for variances in NH (See http://nh.gov/oep/programs/MRPA/ZoningBoardFAQs.htm#1):

    Quote Originally posted by NHOEP
    RSA 674:33, I. The zoning board of adjustment shall have the power to: (b) Authorize upon appeal in specific cases such variance from the terms of the zoning ordinance as will not be contrary to the public interest, if, owing to special conditions, a literal enforcement of the provisions of the ordinance will result in unnecessary hardship, and so that the spirit of the ordinance shall be observed and substantial justice done.

    The local ordinance cannot limit or increase the powers of the board to grant variances under this authority, but this power must be exercised within bounds. In several decisions from 1952 to the present, the Supreme Court has declared that each of the following conditions must be found in order for a variance to be legally granted:

    (1) no diminution of value of surrounding properties will be suffered;
    (2) granting the permit would be of benefit to the public interest;
    (3) denial of the permit would result in unnecessary hardship to the owner seeking it;
    (4) by granting the permit substantial justice would be done; and
    (5) the use must not be contrary to the spirit of the ordinance. (See Gelinas v. Portsmouth 97 NH 248[1952])

    The term "hardship" has caused more problems for boards of adjustment than anything else connected with zoning, possibly because the term is so general and has so many applications outside of zoning law. By its basic purpose, a zoning ordinance imposes some hardship on all property by setting lot size dimensions and allowable uses.

    The restrictions on one parcel are balanced by similar restrictions on other parcels in the same zone. When the hardship so imposed is shared equally by all property owners, no grounds for a variance exist. Only when some characteristic of the particular land in question makes it different from others can unnecessary hardship be claimed.

    The fact that a variance may be granted in one town does not mean that in another town on an identical fact pattern, that a different decision might not be lawfully reached by a ZBA. Even in the same town, different results may be reached with just slightly different fact patterns. "This does not mean that either finding or decision is wrong per se, it merely demonstrates in a larger sense the home rule aspects of the law of zoning that are at the core of New Hampshire=s land use regulatory scheme." Nestor v. Town of Meredith Zoning Board of Adjustment, 138 N.H. 632, 644 A.2d 548, (1994)

    On January 29, 2001, the NH Supreme court issued an opinion in Simplex Technologies, Inc. v. Town of Newington, which dramatically changed the standard for granting zoning variances. The court refined the long-held standard for unnecessary hardship and established 3 conditions, which must be used by boards of adjustment when determining if a hardship exists. (See Appendix F for background information about this significant court decision.)

    On May 25, 2004, the NH Supreme Court issued an opinion in Boccia v. City of Portsmouth, which further refined variance law to distinguish between use and area (dimensional) variances. In Boccia, the Court concluded that it must distinguish between use variances and dimensional variances, observing that the hardship criteria of Simplex could only logically be applied to uses of land. (See Appendix G for background information about this significant court decision.)

    When faced with a variance application, the ZBA must first determine if it is a "use" or "area" variance. If it is a "use" variance, the Simplex analysis applies. If it is an "area" variance, the Boccia analysis applies.

    Simplex Analysis

    Rather than having to establish that the ordinance prevents the owner from making any reasonable use of the land in order to demonstrate unnecessary hardship, a landowner can now establish unnecessary hardship by satisfying the following three conditions:

    (1) The zoning restriction as applied to the applicant's property interferes with the applicant's reasonable use of the property, considering the unique setting of the property in its environment.

    Rather than having to demonstrate that there is not any reasonable use of the land, landowners must now demonstrate that the restriction interferes with their reasonable use of the property considering its unique setting. The use must be reasonable. The second part of this test is in some ways a restatement of the statutory requirement that there be something unique about this property and that it not share the same characteristics of every other property in the zoning district.

    (2) No fair and substantial relationship exists between the general purposes of the zoning ordinance and the specific restrictions on the property.

    Is the restriction on the property necessary in order to give full effect to the purpose of the ordinance, or can relief be granted to this property without frustrating the purpose of the ordinance? Is the full application of the ordinance to this particular property necessary to promote a valid public purpose?

    This test attempts to balance the public good resulting from the application of the ordinance against the potential harm to a private landowner. It goes to the question of whether it creates a necessary or "unnecessary" hardship.

    (3) The variance would not injure the public or private rights of others.

    This is perhaps similar to a "no harm - no foul" standard. If the granting of the variance would not have any negative impact on the public or on private persons, then perhaps this condition is met. Stated differently, would the granting of the variance create a private or public nuisance*?

    [*Comment: A nuisance arises from use of property, either actively or passively, in an unreasonable manner. Shea v. Portsmouth, 98 N.H. 22 (1953). A nuisance can be either public or private. A private nuisance is defined as an activity which results in an unreasonable interference with the use and enjoyment of another's property, Urie v. Laconia Paper Co., 107 N.H. 131 (1966); while a public nuisance is an unreasonable interference with a right common to the general public. A public nuisance is behavior which unreasonably interferes with the health, safety, peace, comfort or convenience of the general community. Conduct which unreasonably interferes with the rights of others may be both a public and private nuisance. Robie v. Lillis, 112 N.H. 492 (1972). In order for a nuisance to exist, the interference complained of must be substantial, that is, the harm alleged must be in excess of the customary interference a land user suffers in an organized society, however, not every intentional and substantial invasion of a person's interest in the use and enjoyment of land is actionable. Id. at 496.]

    This requirement, to some degree, overlaps with the requirement that the granting of a variance not result in a diminution of value of surrounding properties.

    All three conditions must be satisfied for unnecessary hardship to exist under this standard.

    Boccia Analysis

    An applicant seeking an area variance can demonstrate unnecessary hardship by establishing that:

    (1) Special conditions of the property make an area variance necessary in order to allow the applicant to construct the development as designed; and

    (2) The applicant cannot achieve the same benefit by some other reasonably feasible method that would not impose an undue financial burden.

    In applying the first prong, the owner does not need to establish that without the variance the property would be valueless - rather, that practical considerations make it difficult or impossible to implement a permitted use, given the special conditions of the property. In the Boccia case, the Court found that this prong had been met by the developer, owing to the configuration of the property and the presence of wetlands.

    The second prong calls for an examination of other reasonably feasible alternatives. The Court clearly stated that the developer's financial considerations do indeed become part of the calculus of what is reasonable. Undue financial burdens should not be imposed upon a landowner, so the relative expense of alternatives must be examined.
    "Growth is inevitable and desirable, but destruction of community character is not. The question is not whether your part of the world is going to change. The question is how." -- Edward T. McMahon, The Conservation Fund

  13. #13
    Cyburbian
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    I defiantly think the City needs to take a second look at their ordinances. Right now, the only people affected by them are those who donít apply for a variance.

    Iíve tried to do a little research on the Illinois State Statutes but not having much luck. I know the board members are not thinking of legal issues when passing variances.
    Commissioner Stan said the variance would not harm neighbors of the dealership or the city. He added it would make sense to allow the variance considering how much KC Summers has done to improve that section of the city.
    Name of commissioner changed by me.
    Iím not really concerned about the 30-foot sign as much as following the rules. First follow the ordinance, and then follow the law when granting variances.

    Thanks for all the replies.

  14. #14
    Cyburbian TOFB's avatar
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    The "Hardship" criteria should make 99% of requests not approvable. Get your Council to approve text amendments to address the issues that keep coming up and your workload goes down.

    Many national developers will "shop" communities to see if a variance is likely to be approved. When you have to tell them "the Board approves everything" they salivate. If you have a tough Board that deals with the criteria seriously, the developer will make adjustments to his plans to make the project work.

    Champaign did a good job in dealing with variance requests when I was there. The result was very few cases go to ZBA in a year, 3 or 4. You could call Kevin, the Zoning Administrator, for more information. His number is 217-403-8800.

  15. #15
    Cyburbian imaplanner's avatar
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    Quote Originally posted by Lee Nellis
    It depends on your state statute. There are some significant differences. But ideally a variance should only be issued where the owner has no conforming use without the variance. This eliminates 99% of variance requests. For example, if the owner has a conforming single-family home, he/sheshould not be able to get a variance to expand it. There can't possibly be a hardship because there is already a conforming use.

    I agree with you. However, the City I work for approved probably 90 percent of variances. We do not have the hardship criteria and so therefore a variance becomes sort of like a conditional use permit for development standards.

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