Agenda - Planning Commission - 01/31/2013 - Special

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Zoning Bulletin October 25, 2012 I Volume 6 I Issue 20 ness and that reasonable growth of an existing business was not a self- created hardship under Kansas case law. Neighboring property owners filed a petition in district court, chal- lenging the reasonableness of the Board's decision. The district court found that all three requested variances were the result of the Heins' business growth and that the business growth was the result of the Heins' conscious effort to increase their customer base. Furtheu core, the district court found that the Heins grew their business with full knowledge of the zoning regulations under which they were operating. The district court rejected the Board's interpretation of Kansas case law and found that self-created business growth was not a reasonable basis for granting an area variance under K.S.A. 12- 759(e)(1). Accordingly, the district court vacated the Board's grant of the three variances. The Board appealed. DECISION: Judgment of district court affirmed. Agreeing with the district court, the Court of Appeals of Kansas held that self-created business growth is not an exception to the general rule that unnecessary hardship may not be self-created. In so holding, the court explained that Kansas law contemplates two types of variances: (1) use variances; and (2) area variances. Here, all three variances sought by the Heins were area variances. Here, the only criterion for granting an area variance that was at issue was the "unnec- essary hardship" criteria. Under K.S.A. 12-759(e)(1)(C), a board may grant a variance upon finding: "that the strict application of the provi- sions of the zoning regulations of which variance is requested will con- stitute an unnecessary hardship upon the property owner represented in the application." The court further explained that, under Kansas case law: (1) mere economic advantage or disadvantage to the landowner applying for the variance does not in itself constitute unnecessary hard- ship; (2) unnecessary hardship may be found where strict application of the zoning regulations would result in the complete loss of an exist- ing business at the location in question, but not where strict application would merely prevent increased profitable use of that land; and (3) where a hardship is self-created (such as where the landowner pur- chased the property with the knowledge of the zoning restrictions), it cannot be deemed to be an unnecessary hardship. The Board, in issuing the variances, had reasoned that the Heins had a vested property right in their business and that reasonable growth of an existing business was not a self-created hardship. The court disagreed. It found that: (1) the variances requested by the Heins would be economically advantageous to their business because the variances would allow more equipment storage space and more drivers to transport the equipment, which in turn would allow the Heins to serve © 2012 Thomson Reuters 7