Agenda - Planning Commission - 09/04/2003

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Page 8 -- August t0~ IOOS 136 In i998, the Wolfners executed a sales contract with FLrs. Trower for the side lot. tee. conLac~ included 2 provision that the transaction was contingent uoon .the p~ries receiving the necess~.7 approval from the ciuZ. The conrr~r ,~ould be decided null and void ~ the Wolfners were not satisfied wir~ 90 days. The Wolfners applied for a budding pe~t on Jan. 19, 1998 for uhe side and the app2carion was domed. 22eh the Wbffners, acung on behalf of F~s. Trower, applied to the bo~4 for a zomng v~*anca. Later, the ciu anomey sent a letter to the Wb2'ners ad,/ising cb. em that "~' [hey purchased or otherwise took fee title rd ~he prope~y, they would be doing so with full hnowledge rhar abe side lot fails to meet the ~ea and width requ~ments of the ciw's zomng code and, thus, is nor suitable for a residential structure." ~e Wolfners went ahead wi~ the purchase, app~endy disreg~ding the warning. The zo~g v~ance request was denied. The Woli~ers ~sked the court co review the board's decision to deny the variance. The lower court reversed the board's decision, and the bo~d appealed. DECI~iO~': Reversed. The bo~d properly domed rlhe variance. The cou~ no,ed that the scope of review of the board's decision was ired ~o dete~mng whether the decision was authorized by law and supposed by competent and substantial evidence upon the whole record. Tins case involved an a~lication for a adh-use vahanc~. In applying for non-use vmance, ~e appiicanr had ~e burden of showing that a strict enforce- menr of a zoning ii--ration would cause practical difficulties. A non-use v~- anco applicant had rd ar least show that as a practical matter, the property could not be used for a pe~tred use without co~ng into co~cr with the resec- tions contained in the ordinances. Further, the pracricai difficulty must be usual or pecufiar to the prope~7 ... and must be different from that suffered throughout the zone or neighbor- hood." In this instance, the Woifners fmled ~o meet their burden of prov- ing they would suffer a "practical difficulK/' if they were domed a anco. Thus, the board's denial of the variance application was supposed by competent and substantial evi~ dance. Cirs~om' WoZ~er ';. Board Adjustment 0/' the Ci~; o/ Woods, C:)urr of Appe~is of' Missot~m', ~. Dist., Diu iH, ED8!43~ '200~,'.