Agenda - Planning Commission - 07/01/1997

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Page 4 - June 25, 1997 Z.B. ... )10 was only 50 feet wide - 25 feet short of the width requirement. The final two requests involved setback requirements. Comer lots were supposed to have minimum setbacks of 25 feet on both sides; the housing authority requested that the minimum setback be reduced to 10 feet on each side. Nonuse variances allowed developers to deviate from restrictions relating to permitted uses, while use variance allowed developers to use land in a way not already permitted by the ordinance. As a result, the requirement for getting a nonuse variance was less stringent. Instead of demonstrating the "unnecessary hardship" required for a use variance, the applicant for a nonuse variance had to prove only a "practical difficulty" - that the property could not sustain a permitted use without violating ordinance restrictions. Other lots in the district had sizes, widths, and setbacks smaller than the minimum measurements the ordinance required. The board held two public hearings, during which supporters and opponents of the proposed plan testified. The city development director recommended granting the variances, saying the housing authority's application met all the criteria for approval. The city development office staff submitted two reports supporting the variances' approval, one of which stated that no buildings could be built without the setback variances. Apparently, no objections were raised regarding the testimony or the reports. The board voted unanimously to deny all the housing authority's requests. The housing authority appealed to the trial court. The board argued the housing authority didn't present enough evidence to convince it to grant the variances. The testimony of the city development director and the staff reports, the board argued, were hearsay and could not be considered evidence. The board also argued the housing authority couldn't justify the variances, because it failed to demonstrate a "practical difficulty." The court reversed the decision and ordered the board to grant the variances. The board appealed. DECISION: Affirmed. The board violated its discretion when it denied the housing authority's variance requests. To begin with, the board shouldn't have discounted the evidence presented by the city development director and the city development office staff. In general, a board could not consider "hearsay" evidence to be competent and substantial evidence, unless no objection was made to its admission. In this case, no one objected to the testimony or the two reports. This evidence addressed the issue of whether the housing authority met the necessary criteria, so the board should have considered it. The housing authority proved more than a practical difficulty existed without the variances. The lot was much smaller, both in terms of square feet and width, than the ordinance allowed. Denying the variances would result not only in practical difficulty for the housing authority, but it would, as the evidence suggested, make building any structure on the lot impossible. And since other