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ADA vs. ZBA

Chet

Cyburbian Emeritus
Messages
10,623
Points
34
Planners, please opine on this:

Petitioner has a vacant legal nonconforming parcel. We permit construction on such parcels provided that the structure meets setback requirements, and provided that 75% of the parcel is green space.

Petitioner proposes a ranch home and attached 2 car garage which exceeds the open space requirements by approximately 220 square feet.

Petitioner is advised that the Zoning Board of Appeals is unlikely to grant the open space variance, as there are options available, including reduction in the floor area of the garage, or 2 story homes of equal or greater square footage. A ranch small enough to meet open space would not meet code for minimum home size.

Petitioner advises that due to documented disabilities, a two story configuration is not an option for the family.

At what point does reasonable accomodation of ADA trump the ZBA - especially on new construction. Is a 2 car garage reasonably necessary? Would ADA require the petitioner to follow code as closely as possible (ex: building the 1200 sq ft ranch with a 20 sq ft variance)?
 

michaelskis

Cyburbian
Messages
19,989
Points
49
Maybe

I have seen this come up once before. In that case, the garage was reduced to a once car. It made up the difference.
 

NHPlanner

A shadow of my former self
Staff member
Moderator
Messages
9,928
Points
40
We had problems with this in NH until 1998, when the state amended the statutes about ZBA's as follows:

674:33 Powers of Zoning Board of Adjustment. –
I. The zoning board of adjustment shall have the power to:
(a) Hear and decide appeals if it is alleged there is error in any order, requirement, decision, or determination made by an administrative official in the enforcement of any zoning ordinance adopted pursuant to RSA 674:16; and
(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.
II. In exercising its powers under paragraph I, the zoning board of adjustment may reverse or affirm, wholly or in part, or may modify the order, requirement, decision, or determination appealed from and may make such order or decision as ought to be made and, to that end, shall have all the powers of the administrative official from whom the appeal is taken.
III. The concurring vote of 3 members of the board shall be necessary to reverse any action of the administrative official or to decide in favor of the applicant on any matter on which it is required to pass.
IV. A local zoning ordinance may provide that the zoning board of adjustment, in appropriate cases and subject to appropriate conditions and safeguards, make special exceptions to the terms of the ordinance. All special exceptions shall be made in harmony with the general purpose and intent of the zoning ordinance and shall be in accordance with the general or specific rules contained in the ordinance.
V. Notwithstanding subparagraph I(b), any zoning board of adjustment may grant a variance from the terms of a zoning ordinance without finding a hardship arising from the condition of a premises subject to the ordinance, when reasonable accommodations are necessary to allow a person or persons with a recognized physical disability to reside in or regularly use the premises, provided that:
(a) Any variance granted under this paragraph shall be in harmony with the general purpose and intent of the zoning ordinance.
(b) In granting any variance pursuant to this paragraph, the zoning board of adjustment may provide, in a finding included in the variance, that the variance shall survive only so long as the particular person has a continuing need to use the premises.
 

SW MI Planner

Cyburbian
Messages
3,194
Points
26
Good question. We had a similar request once where the applicant stated that they couldn't have a two story home due to disabilities, but in the next breath stated that they were constructing a full finished basement. Apparently stairs that go down are better than those that go up ?! :D
 

gkmo62u

Cyburbian
Messages
1,046
Points
24
why isn't this the basis for a reasoned approval: "A ranch small enough to meet open space would not meet code for minimum home size."

Garages are not normally built with excess space.

You live in Wisconsin right? You tell me if not parking a car in the garage is an option?

Seriously, tough question but do you have specific criteria that must be met when granting the varience?
 

Repo Man

Cyburbian
Messages
2,549
Points
25
Part of the problem this applicant is facing is Wisconsin's tough standard for variances recently set by the State Supreme Court. The Court has ruled that in order for a municipality to grant the variance, it must conclude the property owner has no reasonable use of the property without the variance.

I think that a lack of an extra garage space is does not rob the applicant of all reasonable use of this property, so the variance should not be granted.

My guess is the board will ask what the hardship is and the applicant will say that their disability is the hardship. While this may be a hardhip for the applicant, it is not a hardship that warrants the granting of a variance, especially since there are options that would allow a handicapped person to use a two story house.
 

mike gurnee

Cyburbian
Messages
3,066
Points
31
I would argue that it is still a self-imposed hardship. It is a vacant lot, which could be developed per the code, or sold. The handicapped person could get a return from the property, and build somewhere else.

I would be in favor of granting a variance based on a handicap if there were an existing building, and a ramp or some other feature were needed in a required yard to accommodate the handicap. (actually, we grant those administratively)
 

Chet

Cyburbian Emeritus
Messages
10,623
Points
34
mike gurnee said:
I would be in favor of granting a variance based on a handicap if there were an existing building, and a ramp or some other feature were needed in a required yard to accommodate the handicap. (actually, we grant those administratively)
We have done that in the past too. This is an unsual being new construction on a nonconforming parcel. We want to be fair to the owner, but jtfortin pretty well laid out our state's issues which dont help us much with benevolence.
 

donk

Cyburbian
Messages
6,970
Points
30
I'll jump on the a variance(reduced open space) is not appropriate band wagon.

Why?

1) The lot is a vacant lot, the person can either sell it or should not have bought it if the lot could not be expected to meet their needs.
2) While this person is disabled, and desires the amenity of a larger garage and needs a single storey for living, what is to stop them from building and selling immediately to someone who is not disabled, the house will be there longer then the inhabitant.
3) Using scenario presented in #2, I'll come set up a construction firm that caters to the disabled and buy every POS property saying that the homes are for the disabled, then say that I could not sell them to the disabled and take advantage of the system.
4) In my jurisdiction, we are to look at the best use of the land and if teh request is reasonable and in keeping with teh intent of the regulations, not who the person applying is. Seems that this application would be discriminatory against people without disabilities, you in the wheel chair can build what you want, but you who can walk upstairs can't.
 

Cardinal

Cyburbian
Messages
10,080
Points
34
I'll agree with just about everyone else. The "hardship" exists only for a particular configuration of a house on the lot. Relateively minor alterations to the design would eliminate the problem. There is no justification for a variance.
 
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