Agenda - Planning Commission - 04/02/1996

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Page 4 --4- February 15, 1996 The state sued the board. It claimed a setback requirement could not result in unnecOssary hardship just because it prevented the highest and best use of property. '.It also said the land was not unique and the board acted without enough e¥idence. The c~)urt dismissed the state's case, finding sufficient evidence to sup- port the §oard's conclusion. The court said the change in setback require- ments, coupled with Thiel's "good faith efforts" at development, constituted an unnecdssary hardship that warranted a variance. · The sllate appealed. DECISION: Reversed and returned to the lower court. The b0, ard improperly granted the variance, and the trial court improperly upheld its! decision. A certified survey was needed to properly consider the variance. The case was returned to the lower court for further proceedings. The p4operty's most profitable use was not a proper consideration when granting al variance. The proper test was whether the entire property lacked any feasible use without a .variance. At least four units could be developed on Thiel's lar}. d. The b6~ard improperly concluded the land was unique it looked at the effects of ~he hardship rather than the cause. The new setbacks applied to all shoreline property in the county, which also had diminished development capacity. There was not enough evidence for the board to grant the variance. Although ~ertified surveys and plans were not always necessary, the major issue was t~he effect of 75-foot setbacks and 50-foot roadways on a 175-foot wide parc{l (and that measurement had been challenged). Without surveys, ~ d the board a.0ul not accurately determine the available buildable area. There- fore, it couid not properly consider whether a variance should be granted. Arndorfer v. Sauk County Board of Adjustme~zt, 469 N.W. 2d 83] (2991).' Snyder :v. Waukesha County Zoning Board of A djustments, 247 N. W. 2d 98 (I976). · Variance -,-- Developer Applies for Variance After Violating Ordinance and Permit Terms Board of Zoning Appeals of Evansville and Vanderburgh County v. Kempf, 656 N.E. 2d 120] (Indiana) 1995 Kempf ia, anted to develop some commercial property in Evans(,ille and Vanderburgh County,/nd. He recorded a minor subdivision plat that showed a 10-foot-w~de green space next to the right of way' along the street. The Plan Commission 'approved the plat with conditions: the 10-foot green space had to be maintained, and the green space and a frontage road had to be installed wiihin 30 days. Kempf agreed to the conditions. During qonstruction, the green space was paved over. Local zoning author- ities told KOmpf this violated the green space requirements in the Zoning Code and in! his permit.