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

Home

October 25, 2012 1 Volume 6 I Issue 20 Zoning Bulletin more customers; and the extent that the Heins would lose existing customers and be required to reconfigure their business operations, could reasonably infer that the Heins would suffer economic disadvan- tage without the variances; but (2) nonetheless, there was no indication that the Heins would lose their business without the variances, only the business would simply be less profitable; and (3) the Heins hardship was self -created —made necessary by their self-created business growth. As to that third finding, the court said that "[g]iven that the main purpose underlying self-created business growth is generally to maximize a business' profits, and given that Kansas courts have indicated that mere economic advantage or disadvantage to a land- owner is not a sufficient basis for a finding of unnecessary hardship . . . self-created business growth is not an exception to the general rule that unnecessary hardship may not be self-created." Since the Heins had acknowledged that the requested variances were made necessary by their self-created business growth, the court concluded that the Board's finding of unnecessary hardship was not supported by substantial evidence. The court further concluded that the district court did not err in vacating the variances granted by the Board. See also: Stice v. Gribben-Allen Motors, Inc., Parsons, 216 Kan. 744, 534 P.2d 1267 (1975). See also: City of Olathe v. Board of Zoning Appeals, 10 Kan. App. 2d 218, 696 P.2d 409 (1985). See also: City of Merriam v. Board of Zoning Appeals of City of Merriam, 242 Kan. 532, 748 P.2d 883 (1988). Case Note: As to courts of other jurisdictions that have similarly held that self-created business' growth cannot constitute an unnecessary hardship for purposes of a variance, see, e.g., Bowman v. City of York, 240 Neb. 201, 482 N. W.2d 537 (1992) (finding no undue hardship where business sought variance from setback requirement in order to expand its facilities and increase its profits); Ken-Med Associates v. Bd. of Tp. Sup 'rs of Kennedy Tp., 900 A.2d 460 (Pa. Commw. Ct. 2006) (holding that "expanding the use of a particular property to maximize profitability is not a sufficient hardship to justify the granting of a variance, because such financial hardship is in the form of a self-inflicted hardship"). Case Note: On appeal, the Board had also challenged the standing (i.e., legal right to 8 © 2012 Thomson Reuters