Agenda - Planning Commission - 09/04/2008

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Zoning Bulletin ute when each standard should apply. The court presumed that the leg- islature, in drafting the statute, intended both "practical difficulties" and "particular hardship;' to have meaning. The court looked to the history of the legislation and the way courts in other states determined when each standard applied. The court found that historically, the "practical difficulties" was applied to area variances. The court also found that courts across the country universally applied a less rigorous standard for area variances since area variances had a lesser effect on the neighbor- hood than did use variances. The court concluded that the "practical dif- B,culties" standards applied to area variances. It held that area varianc- eS must be permitted by a county zoning authority when the applicant Iuakes a showing only of "practical difficulties," whereas an applicant for a use variance must establish "particular hardship." . The court further delineated certain factors that must be considered under the "practical difficulties" standard: "(1) how substantial the vari- ation is in relation to the requirement; (2) the effect the variance would have on government services; (3) whether the variance will effect a sub- stantial change in the character of the neighborhood or will be a sub- stantial detriment to neighboring properties; (4-) whether the practical difficulty can be alleviated by a feasible method other than a variance; (5) how the practical difficulty occurred including whether the landown- er created the need for the variance; and (6) whether, in light of all of the above factors, allowing the variance wili serve the interests of justice." The court noted that the Board, in considering the Stadsvolds' appli- cation for an area variance, did not have the benefit of this precedent- setting decision, and therefore did not know it was required to apply the "practical difficulties" standard to the Stadsvolds' application for an area variance. The court determined that remand of the case back to the Board was required so as to allow the Board to consider the Stadsvolds' application in light of the court's holding. See also: Wachsberger v. Michalis, 19 Misc. 2d 909, 191 N. YS.2d 621 (Sup 1959), order aff'd, 18 A.D.2d 921,238 N.YS.2d 309 (2d DepYl963). See also: Appeal of Kenney, 374 N.W.2d 271 (Minn. 1985). Case Note: The court cautioned that, on remand, the Board must . not only apply the "practical difficulties" standard and the factors the court set out for that, but must also consider other factors set out in the county's ordinance for review of an application for a vari- ance. Also~ finding the Stadsvolds made a "good-faith mistake" and unintentionally violated the setback requirements of the ordinance, the court urged the Boatdto, on remand, treat the Stadsvolds' vari- ance application as an application for an after-the-fact variance and consider certain equitable factors. 6 @ 2008 Thomson Reuters/West 88 '-.. . \ ) -..) \ /.