Agenda - Planning Commission - 02/02/2012

Home

Zoning Bulletin December 10, 2011 I Volume 5 I No. 23 physical improvements that deviate from the nonuse /area limitations of a zoning ordinance. A "use" variance allows a landowner to engage in a use of the land prohibited by the zoning ordinance. The variance at issue in this case was a "use" variance. Under the City's Code, the Board could grant a variance "where there are practical difficulties or unnecessary hardships in the way of carrying out the strict letter of th[e] ordinance." However, the Code did not define "practical difficulties" or "unnecessary hardship." As a matter of first impression (i.e., the first time the Mississippi Su- preme Court ruled on the issue), the court held that the phrases "practical difficulties" and "unnecessary hardship" apply to nonuse and use variance respectively. Since this case involved a use variance, Memphis Stone was required to show "unnecessary hardship" in order to obtain the variance it sought. As a matter of first impression, the court adopted a definition of "un- necessary hardship." It said that a landowner seeking a use variance must show "unnecessary hardship" by showing that: (1) the land in question cannot yield a reasonable return if used only for a purpose allowed in that zone; (2) that the plight of the owner is due to unique circumstances [of the land for which the variance is sought] and not to the general condi- tions of the neighborhood which may reflect the unreasonable- ness of the zoning ordinance itself; and (3) that the use to be authorized by the variance will not alter the essential character of the locality. The court also said that in determining whether to grant a use variance, a board must: determine whether the hardship is self-created (e.g., such as determining whether the applicant had actual or constructive knowledge of the land's zoning when entering into the lease or purchase of the land); and ensure that the variance complies with "the spirit of [the] ordinance" and that "public wellness and safety [be] secured and substantial justice done." Because the court's decision was a matter of first impression, the court remanded the case to the Board so the parties could have an opportunity to present it with evidence in compliance with the court's opinion. See also: Matthew v. Smith, 707 S.W2d 411 (Mo. 1986). See also: Otto v. Steinhilber, 282 N.Y. 71, 24 N.E.2d 851 (1 939). Case Note: The Harrisons had argued that the variance granted to Memphis Stone constituted spot zoning. The Court of Appeals had agreed. It found the variance was not a minor departure from the ap- plicable zoning ordinance, but was a dramatic departure which could be obtained only though rezoning and not a variance request. The Su- preme Court of Mississippi said that: "[t]he grant of a variance ... that has the same effect as a small parcel rezoning cannot be attacked © 2011 Thomson Reuters 5