Agenda - Planning Commission - 04/07/1998

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Page 4- March 10, 1998 Z.B. improperly found the city had an "especially heavy burden" because the spe- cial exception was for essential services. DECISION: Reversed, in favor of the city. The trial court improperly substituted its evaluation of the evidence for that of the city. The question of'the weight and credibility of the evidence was for the city, not the court, to decide-- even though the court might..have reached a different conclusion. The court couldn't substitute its judgment for that of the administrative fact finder that heard the testimony and was in a position to evaluate the credibility of witnesses. There was no reason why the city, as fact finder, should have disregarded the expert testimony and the testimony of area residents who said they wouldn't have bought homes in the neighborhood if a substation had been there. There was enough evidence that the substation proposal failed to meet two of the city's requirements for a special exception. Moreover, nothing supported the trial court's conclusion that the city had an "especially heavy burden" because the special exception was for essential services. The city code didn't impose different standards for special exceptions that were related to a public purpose. see also: Pollard v. Palm Beach County, 560 So.2d 1358 (1990). Irvine v. Duval County Planning Commission, 495 So.2d 167 (1986). Variance --Owner seeks variance to build covered deck and boathouse on pier Asmus v. Ono Island Board of Adjustment, Court of Civil Appeals of Alabama, Docket No. 2961033 (1998) Chappuis bought an undeveloped waterfront lot on Ono Island, Ala. He didn't ask about, or investigate, the zoning regulations governing the property before he .bought the lot. A special zoning ordinance for Oho Island governed "boat docking, facili- ties, piers and open wharves built over water" that were accessible from land on Ono Island. Owners were allowed to build docks, piers, or open wharves that didn't extend into navigable waters or exceed 150 feet. Chappuis built a 150-foot "finger pier" from the shore of his property. The pier complied with the zoning ordinance and was deep enough to allow Chappuis to dock a boat. He then applied for a variance from the Ono Island Board of Adjustment allowing him to build a pier, a covered deck, and a boathouse facility extending his current pier to 214 feet. The board could grant variances where enforcement of a zoning ordinance created unnecessary hardship. According to state common law, unnecessary hardship existed if the application of a zoning ordinance was "so unreasonable as to constitute an arbitrary and capricious interference with the basic right of private property." Chappuis said he wanted to build a covered deck and boathouse so he could take his boat out of the water. He said he couldn't build a boathouse within 150 feet of the shore because the water was too shallow and because he