Jonah Patel
Zoning ordinances are unique in that they apply a uniform set of regulations to properties that can be very different in terms of topography, access, and existing uses or buildings. A zoning variance is an exception to the standard ordinance, granted when the ordinance unfairly burdens a particular property, creating an unnecessary hardship for the owner. The hardship must be specific to the property, not the owner, and must be more than mere inconvenience or a preference for a more lenient standard. The character and amount of evidence needed to prove unnecessary hardship vary between jurisdictions. This article will explore what constitutes a medical hardship for a zoning variance.
| Characteristics | Values |
|---|---|
| Hardship | Unnecessary or undue |
| Reason for variance | Result of unique characteristics of the property |
| Applicant's situation | Meets standards |
| Hardship type | Not self-imposed or due to loss of profit |
| Hardship qualifications | With the property, not the property owner |
| Hardship nature | Substantial and undue |
| Hardship result | From conditions peculiar to the property |
| Hardship impact | On owner's ability to make reasonable use of the property |
| Evidence | Substantial and competent |
| Variances | Dimensional or use |
| Granting of variance | Should not harm public interest |
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What You'll Learn
The hardship must be related to the property, not the owner
To obtain a zoning variance, an applicant must demonstrate that the hardship is related to the property and not the owner. This means that the hardship must arise from unique characteristics of the property, such as its location, size, shape, topography, or water features, rather than the personal circumstances or preferences of the owner.
For example, a property owner may be granted a variance if the shape of their lot prohibits them from building an addition due to side yard setbacks. In this case, the hardship is directly related to the unique characteristics of the property. On the other hand, a variance request concerning the maximum size of accessory buildings or the number of domestic animals allowed would be a disagreement with the ordinance itself, not specific to the property.
The hardship must also not be self-imposed, meaning that it should not result from the actions of the applicant or any person with an interest in the property. For instance, if an owner builds an improvement that does not comply with setback requirements and then requests a variance, this would be considered a self-imposed hardship and would not justify a variance.
To determine whether a hardship is related to the property, zoning boards consider if the strict application of the zoning ordinance would create an unnecessary hardship that is peculiar to the property. The hardship must be more than a mere inconvenience and must prevent the owner from using the property for a permitted purpose. For instance, if a lot is zoned residential, complying with an ordinance that prohibits the construction of a home would constitute an unnecessary hardship.
It's important to note that the financial cost of compliance or loss of profit is generally not considered a sufficient hardship, as it is not directly related to the unique characteristics of the property. However, the financial evidence can be a factor, but it is not determinative. The applicant must demonstrate the substantial and undue nature of the additional cost compared to other properties subject to the same restriction.
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The hardship must be caused by the property's unique characteristics
To obtain a zoning variance, an applicant must prove that the hardship is caused by the property's unique characteristics and not by their personal circumstances. This means that the hardship must be due to factors such as the location, size, shape, or topography of the land, rather than the applicant's lifestyle or financial situation.
The zoning variance device aims to prevent the unfair and unjust application of zoning ordinances in unique situations. Zoning ordinances attempt to apply a uniform set of regulations to properties that vary in terms of topography, access, and existing uses or buildings. As such, the hardship must be peculiar to the property and not general to the neighbourhood or community. For example, a lot that narrows dramatically towards the front yard, where side yard setbacks prohibit the property owner from building an addition, would qualify as a hardship caused by the property's unique characteristics.
To prove unnecessary hardship, applicants must provide substantial evidence that their situation meets the standards set by the relevant statutes and case law. This evidence must relate to the impact of the ordinance on the owner's ability to make reasonable use of the property. For instance, in the case of Turik v. Town of Surf City, the court found sufficient hardship to justify a variance when a building permit was issued and construction was underway, but an adjoining property owner objected and submitted a new survey that, if accurate, would have resulted in a violation of the mandated setback.
It is important to note that the character and amount of evidence needed to prove unnecessary hardship may vary between jurisdictions. Applicants should consult with the building department or the municipality's planning and zoning personnel for guidance on what should be submitted. The financial evidence required can be particularly challenging, as it may involve providing tax returns, leases, and other sensitive information that becomes a matter of public record.
Additionally, applicants should be aware that certain types of hardships are generally not considered valid grounds for a zoning variance. These include self-imposed hardships, where the applicant created the hardship by taking an action such as building at a setback, and financial hardships related to loss of profit or additional expenses incurred to comply with zoning ordinances.
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The hardship must not be self-imposed
The concept of "self-imposed hardship" is a crucial consideration in zoning variance requests. This refers to situations where the applicant's actions or choices create the hardship they claim to be experiencing. In such cases, the variance request may be denied on the grounds that the hardship is self-inflicted rather than inherent to the property.
For example, an applicant may carelessly or intentionally build an improvement that does not comply with setback requirements. When this non-compliance is discovered, they may request a zoning variance. However, the expense incurred in demolishing and relocating the improvement is typically considered a self-created hardship. This means that while the financial burden is real, it is not a valid justification for a variance because it resulted from the applicant's actions rather than the inherent characteristics of the property.
Another example of a self-imposed hardship would be someone who builds at a setback and later requests a variance for an addition within the same setback area. In this case, the applicant knowingly restricted their future building or expansion options by choosing to build at the setback. As a result, their hardship is self-imposed, and the variance request would typically be denied.
It is important to note that the determination of whether a hardship is self-imposed can be complex and may depend on the specific circumstances of each case. For instance, in the case of Showcase Realty & Construction Co. v. City of Fayetteville Board of Adjustment, the court held that the financial cost of compliance alone was insufficient to establish an unnecessary hardship. However, it is not enough for an applicant to claim that compliance will be more expensive; they must demonstrate how this additional cost is substantial and undue compared to similar restrictions on other properties.
Furthermore, the courts have clarified that the hardship must be related to the land itself and not the personal circumstances of the applicant or owner. For example, in Snyder v. Waukesha County Zoning Board, the Supreme Court ruled that "growth of a family and personal inconvenience do not constitute practical difficulties or unnecessary hardship which justify a variance." Instead, the uniqueness of the land, such as steep slopes or wetlands, must be the criterion for granting a variance.
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The hardship must not be based on financial circumstances
The financial circumstances of the applicant are not a valid reason for zoning variance. The zoning variance is intended to avoid an unfair and unjust application of the zoning ordinance in unique situations. The hardship must be related to the land itself and not the personal circumstances of the applicant or owner. The financial situation or pecuniary hardship of a single owner does not constitute a valid reason for zoning variance.
The financial cost of compliance alone is insufficient to establish the requisite unnecessary hardship. The cost of compliance may be a factor, but it is not determinative. The applicant must show the substantial and undue nature of that additional cost as compared to others subject to the same restriction. The applicant must provide evidence that the cost of compliance would cause them unnecessary hardship relative to others in similar situations.
The zoning board must also consider the public interest when deciding on a zoning variance. The variance must not harm public interests, which are the purpose and intent of the ordinance adopted by elected officials representing the community. The zoning board must look beyond the lack of objection from neighbours or area residents and consider the public at large.
Furthermore, the hardship must not be self-imposed or self-created. For example, an applicant who builds at a setback and later requests a variance within the setback area has created their own hardship. The hardship must arise from conditions peculiar to the property, such as location, size, or topography, and not from the actions of the applicant.
In summary, while financial circumstances may play a role in the overall decision-making process, they do not qualify as a valid reason for zoning variance on their own. The applicant must demonstrate that the hardship is related to the unique characteristics of the property and provide substantial evidence of the impact of the ordinance on their ability to make reasonable use of the land.
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The hardship must not be based on a desire to make more money
The zoning variance is a device intended to avoid an unfair and unjust application of the zoning ordinance in unique situations. The zoning ordinance attempts to apply a uniform set of regulations to properties that can be very different in terms of topography, access, and existing uses or buildings.
The hardship must be more than a mere inconvenience or a preference for a more lenient standard. The cost of compliance may be a factor, but it is not determinative. The applicant must show the substantial and undue nature of the additional cost compared to others subject to the same restriction. The hardship must be based on the impact of the ordinance on the owner's ability to make reasonable use of the property. The board cannot rely on a conclusory statement, and the financial cost of compliance alone is insufficient to establish the requisite unnecessary hardship.
The hardship must be peculiar to the property, not general to the neighborhood or community. The unique characteristics of the property must prevent the applicant from developing their property in compliance with the ordinance. The hardship must not be based on the applicant's lifestyle or disagreement with the ordinance. For example, a variance request concerning the maximum size of accessory buildings or the number of domestic animals allowed is a disagreement with the ordinance itself, not the way it applies to a particular property.
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Frequently asked questions
A zoning variance allows a property to be used in a manner that is forbidden by the zoning ordinance. For example, a local zoning code may restrict the installation of a sign, but a restaurant owner wanting to install a sign would need to seek a variance to be exempt from the code.
A medical hardship for a zoning variance is not related to the personal circumstances of the applicant or owner. It is related to the land itself and the unique characteristics of the property, such as location, size, or topography. For example, a property owner with a disability may require a zoning variance to accommodate their medical needs.
To apply for a zoning variance, you must provide evidence to the local board that your situation meets the standards. The character and amount of evidence needed will vary between jurisdictions, so it is recommended to speak with the building department or the municipality's planning and zoning personnel for guidance.
