Agenda - Planning Commission - 02/06/1996

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Z.B. December 1995 Page 3 : respect, the board knew its future course of conduct and should have taken more than "a fleeting glance" at the amendment's environmental effects. Chinese Staff& Workers Assm v. CiO, of New York, 509 N.Y.S. 2d 499. Matter of Brew v. Hess, 508 N.Y.S. 2d 712. JOia Setback Requirements -- Landowner Claims Guaranteed Right to Build Tennis Court City ofLadue v. Zwick, 904 S.W. 2d 470 (MissourO 1995 In 1989, Zwick began building a tennis court on his residential lot in the city of Ladue, Mo. The city's zoning ordinance required that residences in Zwick's district have at least 50-foot-deep front and back yards and a 50-foot- wide side yard. A yard was defined as an open space, "unoccupied and unob- structed from the ground upward." Homeowners could not have accessory build- ings or structures on the minimum yard space. However, the minimums could be modified to allow uses like fences, parking spaces, and driveways. The ordinance's section on accessory uses and structures allowed tennis courts in the residential district, "[s]ubject to all other provisions of this ordinance not in conflict with this subsection.." In 1991, the city's deputy building commissioner told Zwick he needed a building permit for the tennis court. Zwick applied for one. Because the tennis court intruded on the minimum 50-foot rear and side setback requirements, the deputy commissioner denied the permit. Zwick applied to the city Zoning Board of Adjustment for a variance. After a hearing, the board denied the variance. Zwick appealed, and the court affirmed. Zwick appealed again, and the appeals court affirmed. The city then asked the court for an order requiring Zwick to remove the tennis court. The court granted the order, allowing the city's request for judg- ment without a trial. Zwick appealed. He argued the tennis court did not violate the yard require- ments because the tennis court itself was yard space. He also argued the ordi- nance guaranteed him the right to build a tennis court. Zwick claimed that guarantee overrode the minimum yard requirements because his lot was so small and hilly he could not build a tennis court without encroaching on the required yards. DECISION: Affirmed. The lower court properly ordered Zwick to remove the tennis court -- the tennis court violated the zoning ordinance. The tennis court was not part of the yard. It was not "unoccupied or unob- structed space," but rather a structure that encroached on the minimum side and rear yards. The ordinance did not guarantee modifications of minimum yard requirements; it stated only that the requirements "may be modified." Because Zwick did not get a modification or a variance, the 50-foot minimum yard requirements applied as written.