HomeMy WebLinkAbout17 College Park Lot `15 Block 5CIT Y OF CO LL E G E STA TIO N
POST OFFICE BOX 9960 11 01 TEXAS AVENUE
COLLEGE STATION, TEXAS 77840
November 4, 1974
TO WHOM IT MAY CONCERN:
The Zoning Board of Adjustment will consider a
at their called meeting in the Council Room of
at 7:30 P.M. on Tuesday, November 12, 1974
as follows:
request from Bob ~i e~
the College Station City Hall
, the facts of the case being
The owner of Lot 15, Block 5, College Park requests a variance to the
terms of the side setback line requirement of the Zoning Ordinance in order
to construct a carport addition to an existing garage which lies approximately
5 feet from the property line.
Further information is available at the office of the Building Official of
the City of College Station, telephone 846-8 886.
L.P. Dulaney
Building Official
CITY OF COLLEGE STATION
POST OFFICE BOX 9960 1101 TEXAS AVENUE
COLLEGE STATION, TEXAS 77840
November 5, 1974
MEMORANDUM
TO :
FROM:
SUBJECT:
Zoning Board of Adj~stme
Building Official ' I
Meeting of November 12, 1 9 74
1. Agenda Item 3 --B . B . Scasta variance request ..
This item was first considered by the board at their meeting of
October 15.
Note "D", Table A --page 27 of the Zoning Ordinance allows lot line
construction where property on both sides of the line is C:Ywned by the same
person. This suggests the following questions:
a. Could this be interpreted to allow a shift of building
lines as proposed?
b . Do you wish to suggest that the Building Official interpret
this provision in this fashion in future cases without further
approval of the Board?
2 . Agenda Item 4 --Bob Rice variance request.
Mr. Rice proposes to build a carport in front of his existing garage.
The existing garage is approximately 5 feet from the property line and the
proposed carport will be in line with the garage, 5 feet from the property line.
The property is in an older subdivision, and at the time that most of
the homes in the area were built, a 5 foot setback was required by the existing
zoning ordinance as well as by the deed restrictions.
The request is for a variance to the setback lines, and the structure
itself is subject to all other requirements of the Building Code and Zoning
Ordinance when the permit is applied .for .
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AGENDA
Zoning Board of Adjustment Meeting
November 12, 1974
7:00 P .M.
1. Approval of the minutes of the meeting of October 15, 1974.
2. Hear visitors.
3 . Consideration of a variance request from B . B. Scasta, Lot 15,
Block 3, Plantation Oaks Addition, Section 1.
4. Consideration of a variance request from Mr. Bob Rice, 405 Montclair.
5. Consideration of a recommendation to the City Council for appointment
of alternate members.
6. Other business.
7 . Adjourn.
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MEMBERS PRESENT :
MEMBERS ABSENT :
GUES TS PRE SENT :
MINUTES
Zoning Board of Adjustment
October 15, 1974
Chairperson Fredda Austin, Membe rs Glendon Jones ,
Kathy Leabo, Wayne Etter, Asst . Director of Publi c
Works George Ford, Director of Public Works L . P .
Dulaney, City Attorn ey Neeley Le vtls, City Planner
Bill Koeh ler.
Member Jame s Teer.
See guest re gi ster.
The meeting v'8.S called to order at 7 :02 P .M.
Agenda Item No . 1--Hear Visitors. No one spoke .
Agenda Item No . 2--Develope orga..n.izational rules. Mr . Etter moved that the
Board adop t Robe rt's Rules of Order a s their rules of proceedure. The motion
v'8.S seconded by Ms . Leabo and unanimously approved.
Chairperson Austin stated that Robert 's Rules of Order me ntioned that the
chair norma lly vot ed in small bodies and that she vould adopt the practice
of voting in all mat ter s .
Agenda Item No. 3--Bri efing by staff members . The City Planner revieved
the powers and duties of the Board as expressed in the Zoning Ordinance .
The Director of Public Wo rks discussed building permit proceedures . Mr .
Jones suggested that each action or appeal to the Board should normally
come through some administrative department rather than to be made directly
to the Board or Board members .
City Attorney Levtls discussed vtlth b oard members the requirments of
public notice and notice of appeals of decisions of the Bu ilding Official .
The points were discussed that spec ific notice vas required on cases of
appeal of decisions of the Building Official; that all proceedings of the
Board vere sub j e ct to the Open Meetings Law; and that the Board could
determine vh at notification vias to be made in variance request cases.
Ms . Leabo fe l t that the Bos.rd should spec ify vho via.s to be notified in
variance cases and suggested that the 200 foot distance specified for
zoning cases might not be adequate. Discussion follo wed concerning the
consequences of inadequate notice, the determina.tion of those to be notified ,
the effect of flav~ in the ap plic ation, the method of mail ing or delivering
notic.;e, a.nu the ability of the BoaC'd Lo rev-lev i ts ovn d ecisions.
The concensus of the Board vere: the board should determine Fho is to
be notified on a case by case basi s , vtlth the Chairperson and the Buil ding
Official making the determination as the request is put on the agenda ; that
·if the board felt that notice vas inade quat e or i f a complaint vas made to
the b oard of inadequate notice, the Board had the prerogative of reviev:ing
and affirming, reversin g or res c inding its oi.rr1 deci s ion s ; that notification
should be by first class mail to the ovner and address of record on the City
Tax Ro ll; and that the Board could assume good faith on the part of the
applicant in the correctness of facts submitted by him.
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Mr. Jones moved that the Chairperson along vd_th City official s determine in
each case vho is to be notified in ord er to comply 1.r:i_ th paragraph 11-E .
The motion vas seconded by Mr . Etter a...r1d unanlln.ously approved.
Ms . Leabo questioned the provision that requests must be acte d upon in a
"reasonable tlln.e 11 • City Attorney Le \.d.S said that 11 reasonable tlln.e 11 vould
depend on the facts of individual cases and should be decided by the Board
on a case by case basis.
Agenda Item No. 4--Set meeting dates. Chairperson Austin sugg ested that,
in viev of the current lov number of building p ermits, the Board set a
regular meeting date and cancel meetings if no business vere presented .
Mr . Jones suggested that a monthly meeting schedule Fould meet the 30 day
requirements for action of the ordinance . A poll of the members develope d
no preference for meeting other than Tuesday, Wednesday or Thursday evenings.
Ms . Austin therefore determined that the Board vould meet on call of the
Chair \.ihen business "ias presented . Mr. Jones vas appointed to preside in
the absence of the Chairperson .
Agenda Item No . 5--0ther Business . Asst . Director of Public Works Ford
pointed out that the developmental control ordinance revieF committee
recently approved by the Council called for one member from the Board to
38r\·E: OJ.id. ~~ggc;;;ted tliat a m.~ra.be _ Oe appoir1c..ed.. T!1e CCairperson appo:LYited
Ms . Leabo to represent the Board of Adjustment on thi s committee i i_ th
Mr. Etter to serve as her alternate .
Chairperson Austin pointed out that a request for a vari ance had been received
by the Building Official . The City Planner explained that the applicant
desired to build a single family residence vd.th in ~ feet of a property line
rather than the 7! feet required , that the applicant o\.ned the adjacent lot
and had indicated on his application that he intended to construct the next
house st feet off the line in order to maintain the required 15 feet
betveen structures . Mr . Ford displayed a pcwtion of the subdivision plat .
Mr . Jones questioned vhy the house size a...r1d l ot dlln.ensions had not been
re conc iled by the designer to begin i-d.th, and asked vhe ther the construction
vas a 11 custom home 11 or a 11 s peculative home 11 • No one present could ansver
these que stions. Mr . Dulaney stated that the applicant had told hlln. that
the plans had been approved by the FHA and that they coul d not be chan ged
v i thout re-approval. Mr . Koehler stated that in order for the builder to
convey a portion of th e adjoining lot, he vo uld be required to resubdivide
the lots \.d.th the approval of the Planning Commission, and that his
alternative to this as to obtain approval of the requested variance .
Ms . Leabo pointed out that to grant this variance vould be to place a
restriction on the adjoining lot vih ich could cause comp l ications for a
subsequent O\.ner of that lot.
Mr . J ones move d that the Board not act at this tlln.e and take up the r equest
on the next agenda when a representative of the applicant could be present
to resolve the Boa r d 's questions . The motion "1.ias seconded by Mr . Etter
and unanlln.ously approved.
Mr . Bob Rice came before the Board and stated that he contemplated buil ding a
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structure vh ich vould r e quire a variance . He qu estion e d vh eth er or no t
h e mu s t first apply f or a building permi t . He pre sented a sketch of hi s
p r opos e d proj e ct an d a letter address e d to t h e Building Officia l. Ch a ir-
p erson Austin asked the Building Officia l if t he mate ria ls as pre sented
vould be a de quate for him to bring this c as e b efore th e Bo a rd. Mr . Dul aney
examin e d t he document s and stated that they vould be adequat e. Mr . Jon e s
stated that t he Board vould not be responsi b le for approva l of th e buildin g
p ermit itself, but vould be authorizing the Building Official t o va ive a
specific requirement of the zoning ordiance. He s u gg e s t e d that th e policy
of the Board shoul d be to act on requests only after th e staff had pointe d
out the SJiycific p rovision vhich the Board v as asked to act upon . Mr . Ford
suggested~hat a standard form of application vould clarify proceedure and
~be devised . Chairperson Austin determined that Mr . Ri c e 's request
should be presented to the Bo a rd on their next agenda and that a meetin g
date vould be set by the Chairperson at a l a ter time .
Agenda Item No . 6--Adjourn . Ms . Leabo moved that the meeting be adjourned.
The moti on vas seconded by Mr . Jones and unanimously approved.
APPROVED
Chairperson
ATTEST
Secretar y
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3501 BRIARCREST •
Mr. Dulaney
City of Coll ege St ation
College Station, Texas 77840
Dear Mr. Dulaney,
T elephone 822-6 571
e POST O FFICE BOX 3367 • BRYAN, TEXAS 778 01
Octobe r 8, 197 4
I request a building permit on Lot 15, Block 3, Plantation Oaks,
Section 1.
I am making this request due to the fact that the west side of
this structure is 6.5' from the West boundary line. The house
plans have been approved to be built under VA-FHA supervision.
B.B. Scasta
A COMPLETE REAL ESTATE SERVICE
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MHS . A. R. RICE
405 :Montcl air
.College Station, l'ex3S
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CITY OF COLLEGE STATION
POST OFFICE BOX 9960 1101 TEXAS AVENU E
COLLEGE STATION, TEXAS 77840
November 1, 1974
College Station Zoning Board of Adjustments
College Station, Texas
Dear Member:
Enclosed is some material related to Boards of Adjustment which can,
hopefully, provide you with background material in the discharge
o f our duties as a Board.
The copie s marked "l" are taken from the American Society of Planning
Official's publication, A Model Zoning Ordinance (19 66) with comm entary
by Fred Bair. The co pies marked "2" are from The Citizen's Guide to
Zoning by Herbert Smith which, I believe, is available at our City Hall .
I hope this material will be of interest to you, and if you have
information of general interest to the Board, I hope you will circulate
it among us.
Sincerely,
.g_c:?~
Fredda Austin, Chairperson
Zoning Board of Adjustment
FA/sh
TEXT OF MODEL ZONING ORDINANCE
office at the same time, for the Standard Act is not written to provide
for staggered terms . (We take the view that state enabling l egislation
should provide for staggere d terms.) In some cases, citi es have acted on ·
th e~r o;vn initiative-:-and in th~ face of contrary provision in state enabling
legisl ation-to provide staggermg of terms for board of adjustment mem-
bers. The l egali ty of actions taken by such a board is open to doubt.
P erhaps some word needs to be said at this point about the nature of
the membership of the board of adjustment . It is a well established principle
of law, fortified by the American conception of "fair play," that a man
should not si t in judgment in hi s own case or a case in which he has an
~ -~~~c~fo rtun ately, far too many cities arc utilizing their planning boards
c::::-t as boards of adjustment and vi ce T;ersa. Pla nning boards are necessary mech an-
isms in the government of a progressive community, but their functions
d'.IIcr greatly from tho se of a hoard of adjustme:1t. The members of a plan-
mng board shou ld not, as a group, be placed in the position of servinrr as
a board of adjustm ent where they may have to pass on the very recomme~da
ti ons that they made as a p l anning board., Using the same membership for
both boards may be l egal in the sense th at it is "allowable" und er the law
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but such a procedure certainly Yiolate s the concep tions of simple justice and
fair pliry:.
--O ~e rlapping one, or at the most two, members of these boar ds has certain
~dvantages relating to coordination and understanding, but the overlapping
id ea should not be extended beyond this point. It mi gh t be noted, too, that
the pressure of work is oft en such that it is unfair to ask r esponsible citizens
to spend tim e on a board that i s, in effec t, two boards.
A board of adjustment must, under the model text and the Standard Act
adopt rules to govern its proceedings, keep minutes, hold only public meet'.
in gs, and maintain records of the board votes, examinations, and other offi cial
action s. All r ecords are public r eco rds. The chairman, or Yice chairman if
the chairman is ab sent, may a dminister oaths and compel the attendance
of witnesses .
The correc t procedure in zoning administration calls for appeals from
the dec ision of the administrative official to lie only to the board of adjust·
mcnt. Such is the intent of subsection 2 of section 8 of the model t ex t and
such, we believe, is the intent of the Standard Act. The di screti on of the
admini strativ e official is strictly limited , and he h as no po wer to vary the l etter
of the ordinance and am eliorate hard ships.
"A . d" ffi b l ny _person a gg riev e or any o icer or ureau of t 1e gov erning body
of the city affect ed by the deci sion of the administrative official may appeal.
Thus app ea ls may occur in a va r:i ety of circumstances: where the administra-
ti ve official has refused to approve the issuance of a buildinrr permit or
has r efused to issue a certificate of zoning compliance; where ~he adminis-
!rative offi ci al has approved issuance of a building permit or a certificate
.of zonin g compliance and an affected property owner appeals; wh ere an
.o~d e r, r eq uireme nt, decision , or i terpretation of the administrative official i s
called into question after an unfavorable action by the administrative official;
r SEC T ION 9 51
or where a favorable order, requirement, d ec ision, or interpretation of the
admini strative official is called into question by an affect ed property own er.
Su.bsection 2 proYides for adequate notice and hearing of such appeals
as called for in the Standa rd Act. The language of subsection 3 is taken
directly from the Standard Act. The effect of this slightly intricate phraseology
is t o stay all further activity until the decision of the board of adjustment
i s ttiken .
In. emergency situations, the special procedure outlined in subsection 3
is availa ble.
/r SECT ION 9. THE BOARD OF ADJUSTMENT: POWERS AND DUTIES
The Board of Adjustment shall have the following powers and duties:
1. Administrative Review .-To hear and decid e app eals where it
i s alleged there is error in any order, requirement, decision, or de ter-
mination made by the administrative official in th e enforcement of this
ord jnance .
2 . Specia l Exceptions : Condibions Governing Applications; Proce-
dur es .-To hear and decide ~~!Y su ch ?pecial exc eptions as the Board
of Adjus tment is specifically authorized to pass on by the terms of this
ordin ance; to decide such questions as are inv olved in determining
whether special exceptions sh ould be granted; and to grant special
exceptions with such conditions and safeguards as arc appropriate
under this ordinance, or to deny special exceptions wh en n ot in h ar-
mony with the purpose and intent of this ordinance:\ A spe cial exception
\ shall not be granted by the Board of Adjustment unless and until:
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a ) A written application for a special exception is submitted indi-
cating the section of this ordinance under which the special ex-
cepti on is sough t and stating the ground s on which it is re-
quested;
b) Notice shall be given at least 15 days in advance of public hear-
ing . The owner of the property for which special exception is
sought or his agent shall be notifi ed by mail. Notice of such
hearings shall be posted on the property for which special ex -
ception is sought, at the City Hall, and in one other public place
at least 15 days prior to the public h earing;
c) The public hearing shall be held. Any p arty may appear in per-
son, or by agent or attorney;
d) The Board of Adjustment shall make a findin g that it is empow-
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ered under the se cti on of th is ordinance described in the appli-
cation to grant the spec i al exception, and that the granting of
the special exception will not adversely affect the public interest.
e) Before any speci al exception shall i ss ue, the Boa r d shall make
written findings certifying compliance with the specific rul es
governi ng individual special exceptions and that satisfa ctory
provision a n d arrangement has been made concerning the fo l-
lowing, wh ere applicable:
1 ) . ingress and egress to property and proposed structures there-
on with p articular reference to automotive and pedestrian
safety and conv enience , traffic flow and control, and access
in case of fire or c ata stro p h e;
2) off-s tree t parking and loading areas wh ere required, with
partic ul ar attention to the items in ( 1 ) above and the eco -
nomic, noise , glare, or odor effects of th e special exception
on adj oining properties and properties generally in the dis-
trict ;
3) refuse and service areas, with particular reference to the
items in (1) and (2) above;
4 ) utilities, with refere nce to loca t i ons, availability, and com-
patibility ;
5) screening and buffering with refe rence to type, dimensions ,
and ch aracter ;
6) signs, i f any , and prop ose d exterior lighting with reference
to glare , traffic safety, economic eff ec t, and comp atib ility and
harmony with properties in the district;
7) r equire d yards and other open spac e ;
8) gen er al comp atibility with adjacent properties and other
, \,, ( property in the district. »' ·, ":-----·---;
.. 3. Varian ce s; Conditions Governing Applications; Pro cedures.-
To authorize upo n appeal in spec ific cases such variance from the
terms of this or dinance as will n ot be contrary to the public interest
where, owin g t o special conditions, a literal enforcement of the_£!:9_;.
·.visions of this ordinsnce would result in unnece,,a•·y hardshi£:\.A var-
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SEC TION 9 53
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r iance from the terms of this ordinance shall not b e granted by the
Board of Adjustment unless and until:
\ Q~) A written application for a variance is submitted dem on strating :
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1) That sp ecial conditions and circumstances exist which are
peculiar to the land, structure, or building involved and
which are not applicable to other l ands , structures, or build-
ings in the same district;
2) That literal interpretation of the provisions of this ordinance -/!ti
would deprive the applicant of rights commonly enjoyed by -
other properties in the same di strict und er the t erms of this
ordinance;
3) That the special conditions and circumstances do not result
from the actions of the applican t ;
4,) That granting the variance requested will not confer on the
applicant any special privilege that is denied by this ordi-
nance to other lands, structures, or buildings in the same
distric t.
No non-conforming use of neighboring lands, structures, or
buildings in the same district, and no permitted or non-conform-
ing use of lands, structures, or buildings in other districts shall
be considered grounds for the i ss uance of a variance.
Z,) Notice of public hearing shall be given as i n Secti on
(b) above;
c) The public hearing shall be held . Any party may appear in per-
son, or by agent or by attorney;
d) The Board of Adjustment shall make findings that the require -
ments of Section 9 ( 3) (a) have b ee n met by the applicant
for a variance;
e) The Board of Adjustment shall fm·ther make a finding that the
reasons set forth i n the application justify the granting of the
variance, and that the variance is the minimum variance that
will make possible the rea sonable use of the land, building, or
structure;
f) The Board of Adjustment shall further make a finding that the
gr;mting of the variance will be in harmo ny with the general
TEXT OF MODEL ZONING ORDINANCE
purpose and intent of this ordinance, and will not be injurious
to the neighborhood , or otherwise detrimental to the public
welfare.
In granting any variance, the Board of Adjustment may prescribe
appropriate conditions and safeguards in conformity with this ordi-
nance. Violation of such conditions and safeguards, when made a part
of the terms under which the variance is granted, shall be deemed a
\ violation of this ordinance and pm1i sh able under Section 16 of this ordi-
\ nance.
\ I Under no circumstances shall the Board of Adjustment grant a vari-* 1
, ance to allow a ~~ not permi.ssible under the terms of this ordinance in
j the district involved, or any use expressly or by implication prohibited
! . by th e terms of this ordinance in said district . ··r --· 4 .-Board /las Powers of Administrative Official on Appeals; Re-
l versing Decision of Administrative 0 fficial.-In exercising the above I mentioned powers, the Board of Adjustment may, so long as such ac-
~ tion is in conformity with the t erms of this ordinance, reverse or affirm,
wholly or partly, or may modify the order, requirement, decision, or
determination appealed from and m ay make such order, requi!ement,
decision, or determination as ou ght to be made, and to that end shall
have the powers of the administrative offici al from whom the appeal is
taken .
The concurring vote of four members of the Board shall be necessary
to r eve rse any order, r equiremen t, dec isio n, or determination of the
administrative official, or to decide in favor of the applicant on any
matter upon which it is required to pass under this ordinancG, or. to
effect any variation in the application of this ordinance . ·
COMMENTARY-SECTION 9
Previous not e has been taken of the judicial or quasi-judicial nature of
the powers of a board of adjust ment. So far as zoning law and administra-
tion is concerned, the city governing body is the le gislative, political, and
policy-making authority; the administrative official i s the "executive" and
administrative authority; the board of adjustment is the "judicial" authority.
This separation of power and function in zoning is important, just as the
separation of powers principle is a vi tal part of American law in general.
Viewed the country over, th 1~ powers of boa rds of adjustment have be-
com e fairly well standardized . The n ational pattern closely follows the Stand-
ard Act in granting authority for boards of adjustment to: (1) hear
SECTION 9 SS
and decide appeals when it is alleged that there is error in any order, de -
cision, requirement, or determination of the adminis trative official; (2) to
hear and decide special excep tions ; and (3) to authorize, after appeal, var-
iances from the terms of the zoning ordinance .
Sl!ction 9 of the model text is built on the base of paragraph 7, section
7, of the Standard Act. We have expanded this l ang uage , drawing our
authority from co urt deci sions construing the pow ers of board s of adjustment.
The intent of sectio n 9 is to spell out clearly the authority of a board of
adjnstment under the model text and to ensure that proper procedural and
sub:;tantive safeguards are thrown around the authority conferred on the
boRrd.
Administ rative R ev ie w . Subsection 1. Subsection 1 of section 9 of the
mo del text deals with the first pow er of the board as li sted above . It confers
~n the board of adjustment the autho.d_t_y_to__in t ~r.R.r£:t the zonin g ordinance
wh ;:n a dispute ari ses . The Standard Act and subsection 1 intend that t he
board of ad justrnent be the proper forum for making suc h intcrpretn tions;
that the administrative official's discretion be carefully limited by the ordi-
nan.;e; and that the political-legislative branch of the city gov ernment no t ·
p art icipate in making such interpretations, save only through the process
of amending the ordinance.
Special Exceptions: Conditions Gov erning Applications; Proce dures. Sub -
secti on 2. Sub section 2 deals with special exceptions . The average citizen
is greatly confuse d ov er the terms "special exception" and "variance." Un-
fortunately this confu sio n extends far too fr eq uently to members of boards
of adjustment and municipal offici als a s well. Some boards of adjustment
have u sed the two terms sy nonymou sly . Employment of the two t erms in ter-
changeably or as synonyms i s very much in error. Even the courts sometim es
exhi bit a complete l ack of understanding of the important diff erence s be-
twe1!n a special exception and a variance. Thus the Florida Supreme Court
in Troup v. Bird, 53 So . 2d 171 (1951), not only failed completely to r ecog-
nize th e distinction but wrote an opinion so notable for confusion that l ega l
corr mentators have cited it as an example of courts "erroneou sly" applying
the two terms. Fortunately, Tr oup v . Bird does not represent the Florida
Su p reme Court's normal com prehension of zoning l aw and administration .
A special exception in a zoning ordinance is allowable wh ere the fa cts • • • • •
and conditions prescribed and detailed in the ordinance as tho se upon which
a special exception may be granted are determined by the board of ad-
justment to exist .[n the modern zoning ordinance, provisi on is m ad e in the
sch•!dulc of district r egulations for th e precise types of u se s allowed as
spe.;ial exceptions in each distrj_c t and the r equ irements under which the
special exceptions may be allowed. Suppose , for example, that in a particular
r esidential district the schedule -;;howed ho spitals allowed under specified
conditions as special exc eptio ns to the use requirements applying generally
to t.he district. Persons seeking to build a ho s pital in such a district would
api:ly to the administrative official who, having no authority to grant a
56 TEXT OF M O DEL ZONING ORDINANCE
special exception, would deny the request. The interested parties would then
go to the board of adjustment wh ere the authority to grant the special ex-
ception, subjec t only to po ssibl e co urt review, would lie. An applican t for
a sp ec ial exception carries no burden of showing any unnecessary hardship; *--¥
(he must simply demonstrate to the hoard of adjustment that he meets the
\re quirements laid down in the ordinance .
A variance, on the other hand, is granted by the board of adjustment
to allow an a li~n t_~i from the requirements of the letter of the
ordinance ~~J.!.§e _q_f_ypn_i!cessary_ har_d_ship ~r_practical_ difficulty . For example,
an i nd ivi dual mi ght own a lot with a stream or pond so l ocated on it that he
simply cannot comp ly with the yard or setback r equirements of the ordi-
n ance. A variance grante d by th e bo ar d of ad justment is the proper i nstru-
ment to enable him to build a ho use on the lot.
The specific co ncern of the commentary at this point is with sub section
2 of sectio n 9 of the model t ext: and the power conferred on the board of
adjust ment' to grant spe ci;l exceptions. We frankly state that we wi sh to
see the special exception given its correct place in the zoning law of t he
several states. It is a useful to ol a nd one too long misused or not u sed a t all.
Subsection 2 lists the proced ural and sub stantive ·r equ i re~ents th at the
applicant must me et in ord er to qualify :for a special excep tion. Thes e textual
requireme nts apply to all special exceptions and are in a dditio n to any
that may appear for specific districts in the sch ed ule of distric t r eg ulatio n s.
If the schedule of di strict regulations docs not aUow an apartm ent house
over four stories hi gh in a specific district as a pe r mi ssib le use and if the
sched ul e do es not allow it as a special exception subject to prescribed con-
dition s, th en, obviously, no apartment house ove r four stories high can be
built in that district.
P aragraph (a) of subsecti on 2 r equires a written application for a special
exception . In this way, all possible parties will be apprised of the precise
nature of the r equest for a special exception and the grounds on which it is
sought. Requiring a written application, too, aids a bit in cutting down friv -
olous and clearly u nfo un ded requests.
Paragraph (b) sets out the method of giving notice th a t a r equest :for a
special exception is now b e fore the board of ad ju stmen t and that action
will b e taken on it at a p articular tim e . The r equirements of this paragraph
meet the limitations of the Standard Act, and even add to those limitations a
bit. The hearing is a public one and any person is allowed to a ppear.
The board is r equired to find that it has the power to grant t he special
exception. The bo ard is required to make a substantive finding that the grant
of the special exception will n ot adversely affect the public interest.
Paragraph ( e), page 52, has been added to this revision of the mod el
text b ecause we have found that: boards of adjustment need a g uide to th e
_item s th at should be checked in considering applications for special ex-
. ceptions. Paragraph ( e) outlines these items clearly, and our exper ience
lps been that the boards n eed and appreciate thi s list. (Attorneys wi ll recog-
SE CTJ:ON 9 57
nize, mo r eover, that simply allowing a board of adjustment to grant special
exce p tion s, without establish in g standards to guide the board in the exercise
of t bit t authority, quite possib l y mi ght raise l ega l quest ions in some juris-
dictions about invalid delegation of l egislative power .)
The-board is allowed, consistent with the ordinance, to r equire appro-
priate conditions and safeguards; th e violations of these conditions and
safeguard s constitutes a violat ion of the ordinance.
W e have attempted in subsection 2 to give a clear picture of procedure
and substance of board authority over special exceptions. Most zoning or-
dinan,es tod ay do not spell out the authority in this fashion . Unde r the
model t ex t the citizen, the vario us parts of the zonin g machinery, and the
cou rt>; should not suffer so much from doub t as to the nature, extent, and
proc edural requirements involv ed in the ex erci se of board power to grant
specid exceptions.
Variances: Co nditions Gov erning Applications; Proc edures. Subsection 3 .
I mportant as the functions of interpretation and passing on special excep -
tion!; are, some of the work of the board of ad justment under norma l condi-
tionn will in clude passing on variances to the ordinance. It should be thor-
ough1y understood at the outset that variances are n ot m eans :for correcting
bad Dr imperfect zoning. The city governing body, throu gh th e process of
ame~~dment, is the only proper in st rument fo r ch anging an ordinance-
good, bad, or indifferent. But in u sin g its power to grant variances, the
board of adjustme nt can u sually "make or break" the entire zonin g scheme .
Laxm:ss or excessive lib erality can rui n the b es t conceived ord inance; un-
warranted infl exibility in the strict application of the ordinance can induce
citizen r eaction against it and result in unnecess ary hardship and distress.
Tlrn irreducible factor in granting a variance is "unnecessary hardship"
on the applicant. The model text and t he Standa rd Act so d eclare . Without
a showing to the satisfaction of the boa r d of adjustment that unnec essary
harcbhip will r esult, the variance shou ld not he granted. A variance i ssued
for a l esser r ea so n or simply because the board feels it is doing "justice"
constitutes an invalid application of board authority .
But . what constitutes "u nne cessa ry hardship?" Certainly any d efinit ion
depen ds in no small degree upon th e circumstances in wh ich its application
is scught. Mo st zoning ordinances make no attempt at definition or d e-
lineati on with the r esult that boards of adju tment must fend for th em-
selve~-, deriving such knowledge as they may from court decisions on th e
topi,c. The r eader will note that subsection 3 of section 9 of the mode l t ext
pays particula r attention to factors which the board of adjustm ent should
consider in d eterminin g whether or not granting a variance will prevent
unnec:essary hardship . Our intent is to outline these factors, to give boards
of a d justment guides, insofar as an indefinite term ca n b e given preci se
m ea ning. The entire subsection is grounded pretty thoroughly on judicial
deci~i ons, judge-made pronouncements of the meaning and intent of "un-
nece:isary h ardship ."
58 TEXT OF MODEL ZONING ORDINAN CE
Subsection 3 of section 9 of the model text sets out the framework of
procedure and substantive l imitation under which boards of adjustment
should op erate in granting variances. Because almost every r equirement set
out in this subsection has a basis in court d ecision, there i s reasonable
certainty that the various portions of the subsection would meet court tests,
should any arise. ·
The board of adjustment cannot grant a variance unless and until cert ain
things are done and certain facts are shown to be true. As in the case of
special excep tions , a written application must be filed with the board of
adjustm ent. Such an application comes to the board on appeal from the d e-
cision of the administrative official. The re asons for requiring a written ap-
p lication p a rallel those already given in setting the same requirements for
special exceptions.
Paragraph (a) is an extremely important statement. Its elements con-
stitute,· for the major part, the factors that an applicant must demon strate
to bring him se lf within the m agic formula of "unnecessary hardship." It
is the intent of this paragraph that any applicant for a variance must dem-
onstrate that all of the factors listed apply to his situation; the board of
adjustment may n ot pick and choose among them.
The factors of paragraph (a) are, for the most part, self-explanatory to
those having some familiarity with zoning law and administration. The
applican t hus no grounds for re q uesting a vari ance unless he can show that
his situation is differ ent-that l iteral application of the zonin g ordinance
will deprive him of rights commonly enjoyed by others in the same zoning
district. Since a board of adjustm ent resem bles to some d eg ree a court of
equity, the special conditions whi ch the applicant is pleading mu st ~be the
result of his own doing. The applicant must show that granting the variance
will !.12.! put him ahead of his neighbors, that is, that he will ~ gain any
special privil ege not enjoyed by t he remaining lands, buildings, or structures
in the district.
The final portion of paragraph (a) deserves some special comment, however,
for many boards of adjustm en t aroun d the nati on are u sing the existence
of non·conforming u ses of nei ghboring lands or structures in a zoning district,
or n ea rby uses in other districts, as gro und s-or an excuse-for the is su -
ance of variances. Such a utilization o.f non-conforming uses (and the reader
is cautioned to r emember how th ey are d efi ned in section 4 of the model text)
certainly violates principles of sound zoning administration, and in our
view, is open to most serious l egal que stions as well. The Standard Act speaks
only of "unnece ssa ry hardship" as grounds for granting a variance. Presence
of non-conforming uses should n ever be allowed as the basis for granting
a variance. Nor, for that matter, should nearby uses in other zoning dis-
tricts be considered in deciding ·whether or n ot a variance should issne.
For the matter of granting a variance is not, in the last analysis, based on
·use . In Florida, and in most other states a s well, boards of adjustment ~filk
·not _g:~nt '!~!! v~~n_c~~ !1} !111. The Florida case of Jo sephse n v. Autrey,
SECT ION 9 59
96 ~!o. 2d 784 ( 1957), indicates clearly that the board of adjustment cannot
use its variance authority to accomplish what wou l d, in effect, be rezonin g .
Numbers of cases in other jurisdictions support this view, though the use
var.in nce has b een found valid in a few states. Wh ere a board of a<ljustmcnt
grants use variances, as many boards in Florida and elsewhe re do even
tho ugh such an action is cl ea rly invalid, it is u surping the functions of
the ,;ity's governing boards, for rezoning is to be accomplished only throu gh
the p rocess of forma l am endm en t of t he zoning ordinance.
vi'e h ave emphasized that city governing bodies sh ould refrain from allow-
ing further appeals from the board of adjustment to the city council, for
such a provision allows the l egislative-p olitical body to intrude on the "judi-
cial"' function of the hoard of ad justment. We would emphasize just as
firm ly that the board of adjustment should not intrude in to the l egisla tive
provin ce of the city governing body by emplo ying a use variance to accomp-
lish r ezoning.
A variance is not a matter of use in the l egal sense, then, save tha t the
use must conform to the permitted uses of the district inv olved . Boards of
adjustment are well adv i sed to consider carefully that th ey have no power
to g;rant use variances and th at, therefore, they should not u se neighboring
non··c onforming uses, nor nearby uses in other di stric ts, to constitute a basis
for j ud gmen t in granting a variance.
Tltis entire matter is nailed down even more cl ea rly in the la st sentence
of !iubsection 3 of section 9. "Free-wheeling" by board s of adjustment in
the area of "u se" is cle arly prohibited. The use variance is poor zoning l aw
and worse zoning administration. Even in tho se states where the u se variance
has. bee n found valid, cities would be well advised, if they m ay legally do so ,
to ·wri te a prohibition against its use into the zoning ordinan ce .
The requirements for notice and public hea ring se t out in paragraphs
(b ) and (c) of subsection 3 parallel those for granting the handling of
special exceptions outlined in subsection 2.
The findings required for granting a variance are more exten siv e than
thorn necessary for a special exception . The board of adjustment must find,
that i s, place on the written r eco rd, that (1) the requirem ents of section 9
(3 ) (a) of the mo del text have been met; (2) that the r easons set out by
the applicant justify the granting of the variance (in other words , that the
applicant has demon strated that unnecessa ry hardship will r es ult to him if
the variance is not granted) ; ( 3) that the va riance i s the minimum on e that
will make possible the r easonable us e of t he land or structure concern e d ;
and ( 4) that the granting of the vari ance accords with th e purpose and intent
of the zoning ordinance and will not affect the nei ghborhood or general wel-
fare adver se ly.
A> in the ca se of special excep ti ons, the board is authorized to r equire
appropriate conditions and safeguards, viol a tion of which con stitutes a vio·
latfon of the ordinance .
Board Has Po we rs of Administrative Offici al on Appeals; Reversing De-
!
I
I
\
i
.f
TEXT OF MODEL ZONING ORDINANCE
ciswn of Administrative Official. Sub.~ection 4 . This particular subsection
is taken almost exactly from the Standard Act. The intent of the subsection
is clear. Passing note may be taken of the fact, however, that some board s
of adjustment occasionally act with the vote of but three members in the
matters listed . We have even seen zoning ordinances, presumably enacted
under the Standard Act, that specify t hat three members may so act! Such
provisions are clearly invalid, and any action of the type li ste d, taken with
the votes of but three members, is equally unlawful. Four votes are required;
if one member of the five member board of adjustment is absent, then the four
remaining members must be unanimous, if the matter is one cover ed by sub-
section 4 and the Standard Act.
Some General Comments on Section 9 of the Model T ext. Some general
commen ts, primarily by way of emphasis, are necessary.
While the procedures as outlined for pass ing on special exceptions and
variances have certain sim il arities, th e substantive showings th a t must be
made in the two instances are quite different . Thorough understanding of
t he di stinction by boards of adjustment is n ecessary.
As a matter of general procedure, the board in drawing up its own rul es
should probably specify that an individua l denied a special exc eptio n, vari-
ance, or otherwise ruled against by the board, on other than procedural
grounds, sho uld not hav e the rig t to appear before the bo a rd on the same
matter again for a specified period of tim e, say six months. Applicants
might make a mi st ake in procedure, and they should not be penalized for
it. But a rule of the type de scribed will aid in protecting the board against
the chronic "appealer without cau se." Such a rule is lawful and desirable.
Stud ents of administrative law will r ecognize th at we have been careful
to set sta ndards for th e guidance of the board of adjustment in the per-
formance of its functi ons. Quasi·judicial or "judicial-type" power may not
be granted to a body such as the board of ad justme nt unless that power
is channeled within the limits of identifiable standards-standa rds that .
guide th e agency in its activity . The board of adjustment does not operate
und er the mod el text with an absolute discretion; each act that it tak es mu st
find sanction in the ordinance and in the laws and constitution of the state .
SECTION 10. APPEALS FROM THE BOARD OF ADJUSTMENT
Any person or persons, or any board, taxp aye r , department, board,
or burean of the city aggrieved by any decision of the Board of Adjust-
ment may seek rev iew by a court of record of such decision, in the
manner provided by th e laws of th e State and particularly by Chapter
--, State Statutes. ·
-·· COM MENTARY -SE CTION 10
The courts have a role to play, and it is an important one in zoning law
•and administration . They represent the ultimate resort for one who feels
SECTION 10 61
that a deci sion of the board of adjustm ent is incorrec t. The Standard Act
recogniz es the judicial function in r elation to zoning by making provision
for review by the courts of decisions of the board of adjustment.
S ection 10 of the model text simply paraphrases the portion of se ctio n
7 of the Standard Act guaranteeing this right of court review. The actual
procedure involved will be governed by state law; therefore, the m odel text
makes no attempt to outline it. Those utilizin g the model t ext should also
take care that correct t erminology, for the state concerned, b e u sed in
denominating the particular court which will revi ew decisions.
Our intent is that court review of decisions of a board of adjustment be
broadly afford ed to interest ed persons, officers, or agencies. Again, however,
technical questions arise as to just who "any person or persons ... ag-
gfi.eyed" may b e ; the answer varies from state to state . The basic issue
involves one known to the legal profession as "standing to sue." Readers
should be aware that the lan guage of th e Standard Act on this point, here
para phrased, is interpreted differently in different states.
T h e scope of court revi ew of a board of adjustment decision also varies
from state to state. In some states, the court may review de n ovo, that is, th e
court may take te stimony not introduced before the board of adjustment.
In o the r states, court review is limited to the r eco rd made be fore the board
of adjustment. In any event, boards of adjustment are always well advi sed
to keep as complete and accurate r eco rds of their proceedings as pos sible
against the day of possible court revi ew .
SECTION 11 . DUTIES OF ADMlNISTRATIVE OFFICIAL, DOARD OF
ADJUSTMENT, CITY COMMISSION, AND COURTS
ON MATI'ERS OF APPEAL
l1: is the intent of this ordinance that all questions of interpretation
and enforcement shall be first presented to the administrative official,
and that such questions shall be presented to the Board of Adjustment
only on appeal from th e decision of the administrative official, and that
recourse from the decisions of the Board of Adjustm ent shall be to the
co u:r ts as provided by law and particularly by Chapter --, State
Statutes.
It is further the intent of this ordin ance that the duties ·of the City
Co u ncil in connection with this ordinance shall not include hearing and
d~~j Einp _gue~~ions of inte~p~_etation and enfo rcement that may arise.
The procedure for deciding such qu estions shall be as stated in this
sec tion and this ordinance. Under this ordinance the City Council shall
have only the d_~1ti~s_ ( 1) of considering and adopting or rejecting pro-
pos1~d amendments or the repeal of this ordinance, as provided by l aw,
and (2) of establishing a schedule of fees and charges as stated in Sec-
tion 12, below.
(-
I \ C.O >i ~ I d (' r :1
rJ _ 'o .!...
f""(' I' c. .L ' ._ I ' ; o'] ~ : ,..
' ·1'.
ably desirable that in any use established by an exception or a
special use permit, there be a buffer or screening area between it
and any other development which may be the result of permitted
uses within th e zone. It should be the responsibility of the de-
veloper of t11e use allowed under the special requirements to
provide the protection, not that of the adjacent property owner.
Sc reening and planning areas should be required and should be
sufficient to assure that the adjacent properties will not be d etri-
mentally affected. Standards dealing with parking, li ghting, and
any other operations of the facilities which might have a nui-
sance factor should be carefully spelled out and observed to the
Jetter in approval of any such applicatio n.
6. Finally, it should be stated that exceptions and special use
permits should be used sparingly. If there is a doubt-don't.
This is the safest axiom in this case. If they are to be included
in the ordinance, the types of uses which will be permitted or
considered should be kept: to an absolute minimum. Recently
there has been a t en dency on the part of the courts to take the
attitude that if a provision :[n an ordinance implies that a use can
be permitted by special exception, it must be permitted when
an application is filed, even thou gh some of the standards may
not be completely met, and even though there may be reason
to think that such a use would not be satisfactory for the par-
ticular loc ation for which :it is proposed.
This occurred recently in the case of a community which had
a generalized exception provision dealing with nursing homes.
Rather carelessly, this provision extended to its finest residential
area. The geographic boundaries of this area did include some
sections of residential development close enough to the metro-
politan core that a nursing home might possibly be a desirable
or legitimate use. The zonin g category, however, was very broad
and also included other areas of the highest type of residential
development in the municipality. An application was £led for
the l ocation of a nursing home in what was almost a semi-rural
area, but which would, according to the plans of the community,
probably d evel op into the highest type of residential use.
The zoning board, naturally, did not feet that the use for which
the application was filed was suited for the particular site under
question and deni ed the ap plication. When the case was taken
r
I
t o court, however, the community was told that it had no choice
:'n the matter and that under their ordinance the applicant, hav-
:;ng generally met the standards, could not be denied the right
:o proceed.
T he special use question is, of course, a different m atter and
l he only real problem here is whether or not it is properly drawn
'n the first place. It should be rea sonable and legally defensable
.vhen it allows the discretionary determination that a use, while
~;uitable in some areas, would not be suitable in all areas, even
i:hough they may fall in the same zone category.
The Zoning Variance
We now want to tum our attention to the question of vari-
ances. While the word seems easily defined and we have already
made several comments on it, variances can mean a great many
things to a great many people. First we probably should ex amine
what variances mean to the person making the application . If
you, as a citizen, have attended a public hearing on the question
of variances, I am sure you will observe that the applicant feels
that the granting of the variance is a matter of life and death
to him. It may be. But more often it is a question of higher (an-
ticip ated) profits than it is a matter of life or death. A variance
on the part of a municipal official can al so mean a number of
things. Frequently and unfortunately, it mean s politics. It means
the question of how many votes are represented by the appli-
cant and his friends or how many votes will be affected because
of the opposition if it should be granted or denied.
There is also a question of what a variance m ean s to a neigh-
bor. It could mean resentment, bitterness, and disgust at the
whole scheme of things when the proper consid era tions are not
given by local official s. Often the question b ecomes purely emo-
tional and all semblance of reason goes out of the window .
Neighbors are turned against neighbors and an entire commu-
nity can be upset.
To the building insp ec tor or zoning officer, a variance is a very
easy matter to describe-it is a h eadache . First he must deal with
the applicant and turn him down for something that h e wants to
do. This is not easy. He then has the problem of informing the
applicant of his rights and flling an appeal, assisting in maki ng
certain that the proper forms are £lied out, and probably is
called upon to give an opinion to the body considering the mat-
ter. If the appeal is granted, it may turn into a further headache
should any one of several zoning principles be violated. If this
happ ens a precedent would be established and the building in-
spector lmows that he will be besieged by other applications
similar in nature.
Good and Bad Variances
Regardless of what a vari an ce means to different people, the
important thing to determine :is the difference between a good and
a b ad variance . If our zoning board officials, our elected officials,
and all people concerned with this problem could somehow leai:i
t o make this di stinction and t o be satisfied with only good van-
ances we would h ave a much better situ ation as far as the de-velop~ent of our municipalities is concerned .. Unfortun ate!~, ~t
is difficult for a zoning board to learn the difference and if it
learns , to keep it in mind. Many of our boards are busy trying
to help individuals get around the law, rather than insisting that
the applicant prove that his request for a variance is a go od one
and that it can be l egi timately granted under the ordinance. ·
This attitude of "what can be clone to h elp the applicant" ex-
hibits the following sympto ms. First, there will be a heartbeat
quickened with a desire to "help this poor fellow in his time of
trouble"-his "trouble" being, in nine cases out of ten, that he
wants to do something that the establish ed law will not permit.
The second symptom is one of a l aps ed memory in which the
basic requirement that the applicant prove unreasonableness has
been completely forgotten. Third, there is a tremor, accompanied
by tears, whenever the tune of "Help the Poor Veteran" is played
in G flat to support pleas fo r. a much-needed use of land, such
as a repair shop for discard ed pool balls on a residential street.
Finally, there is t em por ary blindness to the fact that 27,367
other people of the municipality e:i .. -pect that their interest in good
sound community de velopment will be protected.
In case you think that this is an exaggeration here are · a few
statistics t aken from major cities on the question of variances
granted. Cincinnati, Ohio, a community that prides its elf .on
being one of the first in the country to have a comprehensive
master plan and an elaborate planning program, granted 1493
variances out of 1,940 requests in a ten year period. In Cleveland,
96
.1,
Ohio, in eight years, out of 2,307 r equests, 1,289 were granted.
I 1!1t Philadelphia, in only four years, 4,000 variances were granted
out of a total of 4,800 requests. Skipping around the country,
Aiu stin, Texas, granted 240 variances in a total of 359 requests
in one year. Milwaukee, Wisconsin, found reason to approve 121
v mda nce r equests in one year out of a total of 136 application s.
Fillally ,the City of Trenton, New J ersey, in one year alone, gave
pe:nnission and approval of 100 variances out of 110 r equests .
Now surely the basic zoning can't be that b ad and that wrong.
As a further point of emphasis, let me give you a few illustra-
tions of the specific variances that have been granted. Some time
ago, I appeared as an expert witness against a municip ality
where the zoning board of adjustment recommended to the gov-
ernin g body, and the governing body had approved, a variance
for a shopping center which would occupy seventeen acres and
would be located in a resi dential area . There were no special
use permit standards or any other standards set forth in this
ordinance to guide the zoning board. This use, which is clearly
a large and dominant use that would have a gre at effect on the
the surrounding area, was approved as a variance with no con-
sideration given as to the desirabili ty of having a zoning amend-
m ent if the us e should be pe1mitted. This is, again, an illustration
of simple spot zoning under the guise of a variance and the
u s:nrp ation of legislative authority which cannot be del egated.
On several occasions I h ave witnessed the type of application
for a variance that is almost always assured of approval. This is
the application dealing with a 200-foot lot in a 125-foot zone. In
this case, the "poor fellow" simply wants to divi de this very large
lot into two nice 100-foot lots. Nobody would build on 200-feet
is his cry, and b esides, the two lots are going to h ave nice homes
on them and will add ratables to the municipality and heaven
knl)WS, that we need ratables. How many times have you heard
thi> one? Of course, it matters little that the applicant bought
the lot knowing full well what the zoning was , or that there are
no peculiar circumstances setting his lot apart as being different
or unusual from any of the others .
'There could be a number of other similar illustrations given,
but it is suffici ent to repeat that the measure of whether or not
a 'rnriance is justified and legitimate is whether there was peculiar
and unusual circumstances pertaining to the particular cas e and
97
whether the denial of the application would result in a hardship
upon the individual. Unless your state has a provision which al -
lows a use variance recommendation to the governing body, as is
found in New Jersey, practically every application for variance
should come against this measurement of the term hardship .
This, however, is probably one of the most misused words in
zoning. It is amazing what an attorney or a particularly gifted
applicant can do with it. Hardship has been construed by the
applicant and, in some cases, by the zoning boards, to mean
anything from permitting an individual to make more money
to that of justifying the location of a machine shop in a resi-
dential neighborhood simply because none existed in the com-
munity and having to go one mile into the next community in
order to have such service performed would be a hardship on
the general public. This may seem farf etched, but these illustra-
tions have actually occurred. Th~~~ volumeLQf_ @.!l.J!_~~s
.on _ _!he ~!1!.g of hardshjp. Invariably, in spite of all of the
semantics and allOt the interpretations of the term, it comes
back down to the fact that a. true hardship is that tkindi'Lidual
£.Oll_CerI].eg _y.:_~ ~~t-~~ given_ ~~ _ s_a~~ rig~-a~~v~_ryo_n_e_~lse _if
.the.strict int~rp!_~~tio~ of the _:t;..()ping ordinance is applied to him
a1J<lrelieLi$_9o_t g~anteq__~q!lghJhe ~o_r!i_EfbE_~Q.. ---
Even with this touchstone to gui:de us, it becomes difficult to
d efine a good variance. I personally feel that we can start by say-
ing that there are few good ones. There will be variances granted,
however, and we can measure good variances by detennining
that they require, first of all, that there be a true hardship. The
question may arise as to how this hardship is proved so that it
becomes evident. The answer is that it is shown beyond the
shadow of a doubt that there is an inability to make a reasonable
use of property under the existing tenns of the ordinance. A
second principle in evaluati.ing good variances is to be sure that
the hardship Q_annqt b'e _ s9lh~re~te4 if the variance is to be legiti-
mately granted. And finally, it should be emphasized over and
over again that there is po ~uch _thing as _an ~C~!wmic ha -Mfiip.
How many times have I heard attorneys plead the existence of
a hardship simply because the poor widow wouldn't be able to
keep her house unless she can start a boardinghouse or create an
apar tment on the third floor in a Class A residential zone,
and by so doing, earn more money. It is claimed that it would be
98
a hardship if she couldn't do this . While we certainly all greatly
respect and have a kind feeling for poor widows, this is not a
:legal justification of the meaning of zoning hardship. A hardship
cannot be proved where it can be shov.rn. that the lot or the
property was purchased with the knowledge of an existing re-
~:tri ction, nor can hardship be claimed in terms of prospective
sales or potential customers. A true hardship is a condition that
relates to the particular property in question and which, in all
probability, resulted from sources beyond the control of the in-
dividual applicant or the economic circumstances in which he is
i.nvo lved. Good variances will also require the proof of unique
circumstances and that the general character of the neighborl ood
will not be harmed.
What Malces a Bad Variance
In the most concise t erms , bad variances can be defined as
those that grant special favors. This can take any number of
forms; but in the long run, it will mean that the applicant has
been given permission, by the granting of the variance, to do
something which is not allowed anyone else in the community.
There will, of course, be peculiar circumstances and conditions
regarding c ertain lots which cannot be taken into account in the
general requirements and standards of the ordinance. In such
cases, the lot owner, in order to have the same rights as anyone
else, must be granted relief through a variance. What happens
in most cases, however, is that the zoning board, through the
approval of a bad variance, grants a special privilege to the
applicant. The difference is between "relief" and "privilege."
As this seems so straightforward and simple, we ask ourselves
why are there bad variances? First of all, I think we are all
quite aware of the human element. We are all prone to make
mistakes. Many of these are honest mistakes. They can be ex-
cused, and probably cannot be avoided altogether.
Frequently, however, the problem lies in the fact that abuses
creep into the picture. Applicants, in many cases, are individuals
who have paid taxes for the past forty ye ars, are on the side of
right, vote the right ticket, are "good" people, and the m embers
of the board just don't want to offend them. Frequently, too, the
individual member of the board has 1.'!lown tl1e applicant all of
his life and, after all, he is only asking for a very small favor,
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which, in the mind of the board member, could certainly d o no
damage. While this re asoning may appear to have some merit,
if the individual application is isol ated and viewed alone, the
zoning atmosphere within a ·community must be measured by
the accumulation of all of these individual cases . This must be
considered together with the difficulties which result from the es-
tablishment of a bad precedent. It can encourage similar appli-
cations from other people who would also like a special favor,
whether they need it or not.
Secondly, there is a lack of full understanding of zoning on
the part of all of us. This is true whether we are municipal of-
ficials, members of zoning boards, planning boards, just ordinary
citizens, or even if we are engaged in the field professionally.
There are certainly some of us in the technical end of this busi-
ness who need to learn a great deal more about what is good and
bad zoning.
Bad zoning can also be the result of unclear statutes and un-
clear ordinances. Improper and bad zoning legislation equals bad
variances and vice versa. Tl1is is something which should be
remembered by the citizen. It is so important that the original
draft of the zoning ordinance be carefully prepared and that
every application for variance be given thoughtful consideration.
You cannot expect a zoning board to make the great American
novel out of an improp erly wr}.tten and drafted zoning ordinance.
If they are called upon to deal with confusing and indefinite
language, their interpretation will, by necessity, be confusing
and indefinite.
Still another reaso n for bad variances is the lack of adequate
rules of procedure for the bo a:r d itself. Frequently there is a lack
of comprehension on tlie part of the members as to procedural
questions and administrative irequirements . This leads to failure
to require proper and form al application and sufficient proof by
the applicant who is seeking the variance. In some cases, this can
be aided and abetted by members of the zoning board who have
served a number of years and still do not know the proper par-
liamentary or l ega l proceedings which should be followed. This
is another reason, perhaps, for the failure of the zoning board
to be willing to relate zoning variances to the question of com-
prehensive pl anning. Some boards feel that any indication of a
need for help or assistance from compreh ensive planning in
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I
evaluating a variance request would indicate the lack of knowl-
edge on their part. Nothing could be further from th~ truth;
and, in fact, this very attih1de reveals more than anything else
·their lack of understanding of the zoning process.
Guideposts for Variance
It should be stated that many of the critical remarks which
have been included here r egarding the functions of zoning
boards are included for emphasis and are certainly not applica-
ble in every case. In all fairness, it should be pointed out that
there are any number of good zoning boards functioning in this
country. Where there may be a question even as to the results
of the total board, there are a number of d evoted and dedicated
people who, as individuals, are doing their best to assure that
sound zoning principles will be followed. Unfortun ately how-
ever, we have not as yet reached the point where all of our
zoning administration is of the caliber n eces sary and desir~ble
to protect our communities. L et us quickly sum up some gmde-
posts to be followed in measuring the propriety of granting
variances .
1. The first prerequisite is a good ordinance. A sound funda-
mental base must be laid for the zoning process if zoning admin-
istration is to be successful and properly done . A weak ordinance
will mean weak administration and problems for the zoning
board.
2. The zoning board itself must know its job, be carefully briefed
on its authority and responsibility, and be properly organized.
The chairman should be som eone who is capable of conducting
a m eeting, not only of the board, but also of the public life. The
board should have adopted carefully p repared and clearly stated
administrative procedures which set forth their rules of opera-
tion and these should be adhered to. In the conducting of meet-
ings, everyone must be h·eatetl fairly but firmly. There can be
no special privileges or special favors granted either for a
favored local township ma gistrate who happens to also be repre-
senting private clients, or for the fast talking'. ?ull-doz~ng att.or-
ney who is convinced that he h as the cap ability of fnghtemng
everyone by poundin g the table and who, unfortunately, was
lucky enough to upset the municipality in court at one time and
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still believes that they are sc~.red of him. The rules of procedure
should be studied by each member of the hoard and as a new
man or woman is added, it should be his first duty not only to
read the zoning enabling statute and the ordinance, but to thor-
oughly familiarize himself with the procedural organization of
the board .
3. A properly functioning zoning board of adjustment or ap-
peals makes c ertain that it has available good legal advice. In
most cases, it is wisest to have a special attorney assigne d to the
zoning board, as there is the question of a conllict of interest i£
the municipal attorney is also the attorney who advises the zon-
ing board. To be on the safe side, an attorney should be assigned
specifically to the board and sufficient funds should be allocated
so that adequate time can be made available to take advantage
of his :knowledge and to obtain his advice. Just a word of caution;
it should be pointed out tha.t not all attorneys are necessarily
well versed in zoning law. Just as you would not ask a corpora-
tion counsel for an opinion regarding a divorce suit, neither can
you expect the average attorney to be able to walk into the zon-
ing arena and be a zoning expert. There are a number of at-
torneys who are specialists in the zoning field; and you should
make certain that your board has available to it the best possible
legal advice. This legal advice is going to be invaluable not only
in rendering the routine decisions of the board, but also in keep-
ing the municipality out of courts and, in case this cannot be
done, in presenting the zoning case to the courts.
4. Above all else, in trying to make certain that bad variances
are avoided, it should be remembered by the citizens as well as
the members of the board that it is up to the applicant to prove
his case and to prove that the strict application of the ordinance
will not be a fair and equitable treatment for him. The burden
of th e presentation is that of th0 applicant and in this particular
type of consideration, the ordinance is p res umed to be equitable
for all until it is proven otherwise. An applicant who comes in
simply with a filled-out application but without a proper case
showing that the provisions of the or din ance deal unfairly with
him, should not be granted a variance. The applicant who has
the best possible case that could be found and yet who does not
present the facts to the board,, likewise, should not have his vari-
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;. ance granted. It is not up to the zoning board to present the case
for the individual nor is it their job to see how they can help him
find a way to do what he wants to do and, in tum, to get a.round
the law.
5. In requiring that the case be proved, it should be remem-
bere<l that it must be shown that the provisions of the ordinance,
as they are writt en, cannot be applied to the particular property
in fairness. Where there is any provision allowing a variance of
use or permitting a use not otherwise included in the zoning
district, this is particularly true. Many tim es a variance has been
granted for a use not permitted in a zone without adequate in-
form ation to indicate that if the ordinance were l eft alone the
individual property owner would be h armed. Each member of
the zoning bo ard should constantly measure the application be-
fore him with the question-Has this man shown me that he can-
n ot d o what our ordinance r equires and still receive a protect ion
of his right to utilize his property? In about 99 cas es out of 100,
the applicant could live within the law and still have fair and
reasonable treatment.
6. Any time a variance is being considered, it should be clearly
known by the members of the zoning board, from the facts be-
fore them and from their knowledge of the community and its
planning, that the granting of the variance will in no way be
detrimental to the zone plan and ordinance or to the compre-
h ens ive development of the community. In practically every
state enabling act there is the provision that the variance be
granted without detriment to the surrounding property or to the
over-all community. \Vhile some zoning boards are reasonably
careful r egarding immediately adjacent prop erty, they fail to
take into strict account that if any variance or excep tion granted
would be detrimental to any part of th e municipality, under the
charge set forth in such enabling legislation, they a.re duty bound
to turn it down . At the same tim e, they must b e careful to make
certain that they have adequate facts at their disposal to indicate
the d etrimental nature of the proposed use. This cannot be
simply a matter of opinion.
7. Finally, while it may seem an overgeneralization, the m em -
bers of a zoning board wishing to avo id bad varia nces should
probably have written out in large letters a posted sign which
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reads, "An Application Can Be Denied." I am sometimes con-
vinced that zoning board m embers completely forget the fact
that they do not have to gran t every application before them and
that, in fact, the danger of their granting a special privilege
rather than a right calls on them to be extremely sparing in the
ones that they do approve. If a member can remember that, re-
gardless of how long he ha:; known an individual or how emo-
tionally appealing the prop osal of the applicant may be, he can
still say no and have the full protection of the l aw dealing with
zoning as well as probably have the condemnation of the think-
ing people of the community, we could do a great deal to wipe
out bad variances.
The Need For A "Public D efender''
Anyone has the right to request a variance whether his par-
ticul ar proposition be one that can be legitimately granted or
not. Anyone als o has the right to present whatever evidence and
information he may wish to p resent in order to "sell" his case. At
the same time, any individual or citizen can oppo se a varianqe
r equest even though he may not live in the immediate vicinity
or in the area which r equires that he be served with a special
notice. As a resident of the community and an interested citizen,
he is entitled to voice his view. The difficulty comes in the fact
that almost invariably the case for the citizen cannot be as
thoroughly and technically competently presented as that of the
applicant.
The ind ividual citizen doe!; not have the money to hire experts
and to go in with an attorney before a zoning board to argue
against a particular variance. The zoning board, while it is sup-
pos ed to r epresent the public interest in its consideration, is not,
in most co mmunities, equipped to send out its own team of in-
vestigators and researchers to uncover information which might
present a d ifferent story. The planning board, while it is ex-
tremely concerned, probably is not in the pos ition to deal with
the specific question of an individual lot. It, too , through the l ack
of funds and perhaps even the lack of knowledge of the fact that
the application has been £led, cannot be expected to send a team
of individ uals out to obtain technical data and information to
present at the hearing.
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...
What I am saying is that under the present setup of zoning
in this country, we have a decided weakness in the zoning proc-
ess, particularly in view of the fact that the courts are now in-
sistent that the case before them shall be the cas e which was
heard by the zoning board and that no additional information
or evidence can be added. This means that unless a full case is
presented for the public at the zoning board lev el the court,
when called upon to review the matter, will not have facts pre-
sented on behalf of the public to consider. If we are going to
progress in the zoning field, and if everyone, including the gen-
eral public, is to be treated equitably, it b ehooves us to find some
way for all facets of the situation to be explored and made part
of the record. Unless this is done at the zoning board level, it
may never be done.
A number of our courts are recognizing this and are remanding
cases to zoning boards with instructions that there be full dis-
closure, not only of the information submitted on behalf of the
applicant, but also information which might come from such
sources as a governing body, a plan ning board, or technicians
who would be employed by the municipality. I remember vividly
sitting on a witness stand as an expert witness while h'lo at-
torneys argued ov er my right to be there since I had not ap-
peared before the zoning board of adjustment. In ~his case, no
one in opposition to the applicant had appeared before the zon-
ing board. They h ad heard only one side of the picture. There
was no way that they could determine a diff eren t opinion or
h ave other information presented to them b ec au se they were not
authorized or in a position to go out and do their own investiga-
tion. As average, ordinary citi zens, they were exp ected to draw
from their own individual knowledge to equate a profe ssionally
presented technical case ag ai nst this knowl edge and to reach a
Solomon-like decision.
I feel, therefore, that we need to correct this situation and that
in every case where a major item of conc ern is involved in a
zoning varianc e (perhaps this could be limited to any variance,
exception or permit dealing with a use r ather than area require-
ments), there should be a provision made for the presentation
of the case for the public. Perhaps what is needed is a public
zoning attorney, just as in some states we find a public d efender
in dealing with criminal matters. At any rate, this is something
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