Agenda - Planning Commission - 11/09/1995

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Page 6 October 15, 1995 Z.B. - Variance-- Parking Lot Owner Challenges Neighboring Lodge's Variance Davidson v. City of Little Rock, 900 S.W. 2d 578 (Arkansas) 1995 The Brady Masonic Lodge wanted to build a 4,000-square-foot building in the city of Little Rock, Ark. It applied to the city's Board of Adjustment for two variances -- one requested a reduction in setback requirements and the other asked for a reduction in the number of required parking spaces. The board granted the variances with certain conditions; one was that a parking lot on neighboring property Davidson owned would not be used without Davidson's written consent. Davidson asked a court to reverse the decision and deny the variances. He alleged the lodge did not show it would suffer an undue hardship if the vari- ances were denied. The court found there were two conditions in the zoning ordinance that had to be met for granting a variance: strict enforcement of the ordinance would cause undue hardship because of circumstances unique to the property, and the variance would be in keeping with the spirit and intent of the ordinance. The judge also stated, "Of course, the plaintiff always has the bur- den of proof to show that the variance goes beyond the authority vested in the Board." The court held for the city, ruling that Davidson failed to prove the board acted beyond its authority. Davidson appealed, arguing he did not have to prove this. According to Davidson, the court should have addressed whether the lodge satisfied the requirements for getting the variances. DECISION: Reversed and returned to the lower court. The lower court improperly ruled for the city. The case was sent back to the lower court to rehear the case and decide whether the variances were proper. The lower court should have decided the same issue the board was asked to decide -- whether the variances should have been granted. In so doing, it had to apply the standards in the ordinance (i.e., whether denial would create undue hardship and whether the variance would be in keeping with the ordinance's spirit and intent). Davidson did not have to prove the board acted beyond its authority. City of Harrison v. Wilson, 453 S. W. 2d 730 (1970). Variance m Board Says Bank Brought Hardship on Itself First National Bank of Downsville v. City of Albany Board of Zoning Appeals, 628 N.Y..S. 2d 199 (New York) 1995 First National Bank of Downsville held a mortgage on property on Quail Street in the city of Albany, N.Y. The building had seven dwelling units, and the property owner allegedly assured the bank that the use was proper. How- ever, unbeknownst to the bank, the property was in a zoning district that allowed no more than two units per building. The property owner defaulted on the loan and offered the bank a deed to the property instead of going through foreclosure proceedings. Before accept- ing the deed, the bank had the property appraised to verify its use as a seven- unit dwelling. However, it did not check with zoning authorities or get from the