Agenda - Planning Commission - 02/03/1998

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Page 4 January 10, 1998 Z.B. had a certain irony because it was the enactment of the setback requirements that created the hardship upon which Huntoon's request rested. The house was in full compliance with all applicable rules and regulations, and before the setback ordinance was passed Huntoon wouldn't have needed a variance to build a deck. Also, since Huntoon's house had been built, 15 feet of shoreline had been lost to erosion and the rising level of the lake; if not for this loss, Huntoon wouldn't need a variance. The board considered the impracticality of locating the deck on either side of the house, noting it would require the removal of large trees. The board also found safety considerations favored the variance, because Huntoon's property sloped steeply down to the lake. The board found that although the deck wouldn't elimi- nate the slope, it would form a barrier and a reference as to where the slope began. The state appealed the board's second decision as well. The court combined the state's appeals. The state claimed the proper test for measuring unnecessary hardship was the "no feasible use" test, which meant Huntoon had to show that "no feasible use [could] be made of the property" without a variance. The board claimed the proper test was the "unnecessarily burdensome" test, where the question was whether "compliance with the strict letter of the restrictions ... would render conformity with such restrictions unnecessarily burdensome." Although a state statute mentioned only "unnecessary hardship" as the test for both use and area variances, the state's highest court had applied the "no feasible use" test to use variances, and the "unnecessarily burdensome" test to area variances. The court affirmed the board's decision, and the state appealed. The state argued the appeals court had to apply the "no feasible use" test because it had done so in an earlier area variance case. The state also argued the board's decision was unreasonable because Huntoon had not proved unnecessary hardship and because the board based its decision in part on factors that would not support the grant of a variance, including Huntoon's personal convenience and the enhanced value of her property with a deck. DECISION: Affirmed. The board properly granted Huntoon a variance for her deck. Compliance with the shoreline setback would be unnecessarily burdensome. The proper test was whether compliance with the setback would be unnecessarily burdensome. Although the appeals court had applied the "no feasible use" test in an area variance case, the variance in that case had really been a "use variance in disguise" because it would have produced a large change in development density. Huntoon deserved a variance because she proved strict compliance with the setback would be unnecessarily burdensome. Her house was in full compliance with all ordinances, and had been since it was built before there were any setback requirements. The enactment of the setback requirements and a loss of 15 feet of shoreline, neither of which were self-created, deprived Huntoon of the right to build a deck without a variance. In considering that it