Agenda - Planning Commission - 07/06/1999

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Z.B. June 10, 1999 -- Page 5 the Center could prove it was primarily a training facility, it could operate as a permitted use. Center for Endangered Cats v. _Forest Lake Township, Court of Appeals of Minnesota, No. C1-98-1760 (1999). see also: Frank's Nursery Sales Inc. v. City of Roseville, 295 N. W..2d 604 (1980). see also: City of Minneapolis v. Church Universal & Triumphant, 339 iV. W. 2d 880 (1983). Variance , Does rental income prevent finding that property can't yield reasonable return? MAINE (4/27/99) The Rosses owned a two-bedroom house with a garage in the city of South Portland. They rented the house to tenants, but wanted to rebuild and expand it so they could use it as their retirement home. The Rosses' proposed addition would have violated the city's setback re- quirements, so they applied for a 19-foot setback variance. To be entitled to a variance, the Rosses had to prove undue hardship by showing the property couldn't yield a reasonable return without a variance, the variance was needed because of the unique circumstances of the property, the variance wouldn't alter the neighborhood's character, and their hardship wasn't self created. At a public hearing, the Rosses' expert testified the Rosses' house would continue to decrease in value if they didn't get a variance. Persuaded by this testimony, the zoning board granted the Rosses a variance. Goldstein, who owned property abutting the Rosses' property and who had vocally opposed the variance at the public hearing, appealed to court. He claimed the board shouldn't have issued the Rosses a variance because they failed to prove undue hardship. The court reversed the board's decision and vacated the Rosses' variance. According to the court, the Rosses didn't show their property couldn't yield a reasonable return without the variance. The city appealed. DECISION: Affirmed. - The Rosses weren't entitled to a variance. They didn't prove that strict application of the city's setback requirements would cause them undue hardship. To establish undue hardship, the Rosses had to show their property couldn't provide a reasonable return without a variance, among other things. To show their property couldn't produce a reasonable return on their investment, the Rosses had to prove that strict compliance with the setback would result in the "practical loss of substantial beneficial use of the property." The Rosses didn't show their property would lose all of its value if they didn't get a variance. The Rosses were able to rent their house to tenants and, .53