Agenda - Planning Commission - 03/05/2009

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Zoning Bulletin . January"25, 2009\ Volume 31 No.2' \ RCD area of the Property. However, due to restrictive covenants onthat 21.5% portion of the Property, the Starrs were, in 2003, prohibited from using the. building permit to construct a residence outside of the RCD area. A town ordinance (the "Ordinance") generally prohibited construc- tion in RCD areas without a variance. The Ordinance required the town's Board of Adjustment (the "Board") to grant a variance if it found that: (1) the RCD left an owner "no legally reasonable use" of the prop- erty; and (2) a failure to grant the variance would result in "extreme hardship." In making such findings, the Board was required to "consider the uses available to the owner of the entire zoning lot ...." The Ordi- nance instructed that if the RCD encompassed more than 75% of the . property, the Board must presume that the RCD left the owner no legally responsible use of the property. However, that presumption could be re- butted by substantial evidence to the contrary. The Starrs applied to the town for a variance to build in the RCD. Ultimately, the Board denied the variance. Although the Starrs were en- titled to the rebuttable presumption set forth in th~ Ordinance, the Board . concluded that presumption was rebutted by the 2002 building permit granted to the Starrs. Because the Starrs had a 2002 building permit to construct a residence o.n the Property in a location wholly outside of the RCD, the Board concluded that the operation of the RCD Ordinance alone did not leave the Starrs with "no legally reasonable use" of the' property. The Starrs appealed, and the trial court reversed the Board's decision. The town then appealed, and the court of appeals reversed the trial court and reinstated the Board's resolution denying the variance. The Starrs again appealed. DECISION: Reversed; and remanded with instructions to issue the re- quested variance. On appeal, the court noted that the central question before it was whether the Board, in determining if the Starrs were entitled to a vari- ance, should have considered the operation of the RCD independently (as it had), or in conjunction with the effect of the other private restric- tive covenants on the property (which it had not). The court found that the plain language of the Ordinance provided the answer: The Ordinance. required the Board to "consider the uses available to the owner of the entire zoning lot ...." Thus, the court held, the Board, in determining if the Starrs were entitled to a: variance, should have considered the RCD restrictions in conjunction with other physical and legal conditions. In other words, in determining whether a variance was necessary to leave the Starrs with a "legally reasonable use" of the Property, the Board should have considered the actual state of the Prop- erty-"including both its physical and legal conditions [e.g., the other @ 2009 Thomson Reuters 7 85