Posted by: Patricia Salkin | April 2, 2021

NY Appellate Court Upholds Denial of Area Variances

Petitioner, D’Souza, the owner of a parcel of property located in a part of West Hempstead where the minimum frontage width permitted is 55 feet, applied for area variances and subdivision approval. He wanted to subdivide the subject property, which is improved with one single-family home, into three lots. He sought to maintain the existing single[1]family home on one lot and to build two new single-family homes, each on their own lot. The two additional homes, however, would each have only 15.44 feet of frontage width. The Zoning Board of Appeals denied the request. The trial court upheld the denial and petitioner appealed.  The appellate court agreed that the zoning board properly weighed the relevant statutory factors in Town Law § 267–b(3)(b) and its determination was not illegal, arbitrary and capricious, or an abuse of discretion.

Souza v. Board of Appeals of Town of Hempstead, 2021 WL 1112787 (NYAD 2 Dept. 3/24/20210)

In an appeal from a circuit court’s decision that cluster development plans submitted by two developers were not subject to review by a county’s planning commission under Code § 15.2-2232 and Code § 15.2-2286.1, the judgment is reversed. In this instance, the two properties at issue are not located within an area designated for water and sewer service. By its plain terms, Code § 15.2-2286.1(B) does not apply, and therefore Code § 15.2-2232, which requires the developers to submit their plans to the planning commission for review, is applicable. Prior approval of different plans for these developments, several years earlier, did not change the master plan, and did not obviate the needed review. The case is remanded for a review of the revised plans under Code § 15.2-2232 by the county planning commission.

Stafford County v. D.R. Horton, Inc., 2021 WL 1220736 (VA 4/1/2021)

This post was authored by David Cooper, Esq. of Zarin & Steinmetz

Claimants were the owners of a vacant waterfront site in the Village of Haverstraw, zoned for residential development. On March 27, 2008, the Village condemned the subject property in connection with a large-scale waterfront redevelopment project. The Claimants thereafter filed a claim seeking direct damages for the loss of the subject property. In advance of a nonjury trial on the issue of compensation, claimants submitted an appraisal calculating the market value of the subject property on the vesting date as $13,100,000.00. The Village submitted an appraisal calculating the market value on the vesting as $2,140,000.00.

While both appraisers agreed that the highest and best use of the subject property was multi-family residential, they differed greatly on the number of units that could be built. Claimants’ Appraiser assumed 131 units could be built. This assumption was premised upon a development scheme prepared by a planning professional, who relied upon subsurface parking to meet local zoning requirements. Claimants’ planner did not consider the cost to construct subsurface parking, or whether such costs would impact the financial feasibility of the assumed 131-unit development. The Village’s Appraiser assumed that an 80-unit townhome development could be built. This assumption was premised upon a development scheme prepared by an engineering firm, that reviewed soil tests establishing that a shallow subsurface water table at the site would significantly increase construction costs if subsurface parking were included in the development. The engineering firm also prepared an opinion of probable costs (OPC), showing that various atypical construction expenses would be necessary to pursue a development at the subject property to accommodate the shallow water table, including reinforced utility lines, stormwater management features and special foundations. The Village’s Appraiser utilized this data to test the financial feasibility of the 80-unit development, based upon likely resale prices in the area as of the vesting date.

In addition, the Appraisers’ sales comparisons differed significantly with respect to the per-unit value of the subject property. While each appraiser selected the same comparable sales, they applied drastically different adjustments to arrive at their per-unit value. Claimants’ appraiser opined that a developer would be willing to pay $100,000.00 per unit. This opinion was premised, in part, on a contract with a similar purchase price the Claimants allegedly entered into months prior to the condemnation with an individual who had performed little due diligence concerning development potential or zoning. The Appraiser further opined that purchase prices in the local market increased at a rate of 1% per month. The Appraiser also applied various location adjustments to the comparable sales based on personal opinions regarding the quality of the neighborhoods each comparable sale was located in.

The Village’s Appraiser opined that a developer would be willing to pay $50,000.00 per unit as of the vesting date. Of significance to the Appellate Division, the Appraiser’s opinion was premised upon a sales comparison approach backed by “facts, figures and calculations” in accordance with the Uniform Rules of the Supreme Court set forth in 22 N.Y.C.R.R. Section 202.60. This included housing market data and industry reports demonstrating that the effects of the Great Recession on housing prices started to occur prior to the vesting date, resulting in a downward trend in sale prices. It also included a survey of sale prices in the neighborhoods in which each comparable sale was located, which provided an empirical basis to calculate location adjustments.

After trial, the Supreme Court rejected both Appraisers’ adjustments, and awarded Claimants $8,950,000.00 in just compensation. On appeal, the Appellate Division reversed the Supreme Court’s decision. The Appellate Division found that the Supreme Court should have rejected Claimants’ Appraisal.

As to the highest and best use, the Appellate Division found that the only opinion “supported by the evidence” was the Village’s 80-unit development. Whereas Claimants’ experts failed to consider construction costs, the Village’s experts established the financial feasibility of its proffered highest and best use through “exhibits detailing the construction and development costs underlying the analysis.”  The Village’s Appraiser also demonstrated that there was a demand for a townhouse development as of the vesting date based upon other development in the area.

With respect to the sales comparison approach, the Appellate Division found that the contract relied upon by Claimants’ Appraiser did not reflect a normal “arms-length” transaction sufficient to sustain an opinion of value given the timing and lack of due diligence prior to execution. In addition, the Court rejected the Appraiser’s adjustments because he failed to demonstrate the empirical basis upon which the adjustments were calculated. In the Court’s opinion, the only adjustment supported by the requisite “facts, figures and calculations” were the location, market conditions and topography adjustments applied by the Village’s Appraiser. All of the Appraisers’ other adjustments were rejected.

Finally, the Appellate Division determined that a total of $621,818.00 in atypical costs should be deducted from the purchase price to reflect the “atypical” construction costs identified by the Village’s Engineers.

In re Matter of Village of Haverstraw (Ray River, Co.),  2021 WL 710499 (2d Dep’t 2021)

A copy of the Decision and Order can be accessed here: http://www.courts.state.ny.us/courts/ad2/Handdowns/2021/Decisions/D65698.pdf

This post was authored by Georgia Reid of Touro Law Center

Steven Schneider and Julie Ann Schneider brought an action against their neighbors, Barton Rachwal and Andrea Rachwal (the Rachwals), the city of Orchard Lake Village (the City) and its building official, Gerry McCallum, in 2020 after the Rachwals constructed a new dwelling and changed the landscaping on their property.  After the trial court dismissed the action for lack of standing, the Schneiders appealed.  The Schneiders also argued that the trial court erred by ruling that their initial attorney, Robert Jacobs, and his associated law firm should have been due to an alleged conflict of interest.  The Court of Appeals agreed held the trial court did not err in dismissing the claims, and also offered a lengthy analysis of the conflict of interest issue.

The Schneider property and the Rachwal property next door were originally part of a single tract that.  The tract was subdivided into three parcels, and the original owner imposed covenants and restrictions to run with the land.  Before the Rachwals purchased the property in 2011, the Schneiders were already embroiled in litigation with the Rachwals’ predecessors, the Flynns.  In 2009, a selltlement was reached, which provided that the Schneiders could enforce the existing deed restrictions in place for the property then owned by Flynn, but upon a sale or transfer of that property, the Schneiders would receive $50,000 from the closing proceeds and “release any rights to enforce the restrictions on the Flynn property,” but “[i]f no payment is made as provided herein, [plaintiffs] shall continue to have such rights of enforcement.”  The Rachwals did not pay the Schneiders $50,000, upon purchase of the property.  The Schneiders later informed the Rachwals that The Rachwals could pay the $50,000 amount at a later time to obtain a release of the deed restrictions, which mostly centered around the maintenance of a drainage ditch.

The Rachwals subsequently tendered the $50,000 amount. In lieu of accepting that payment, the Schneiders filed a lawsuit, claiming (1) the Rachwals violated the deed restrictions applicable to their property, which plaintiffs were entitled to enforce under the 2009 settlement order, and (2) the Rachwals performed work on their property in violation of several ordinances, which the City failed to enforce.

The Rachwals and the City moved for summary disposition with respect to the deed restrictions, the trial court granted the dismissal.  The trial court gave only a single specific reason for granting summary disposition—the plaintiffs lack standing. 

Reviewing the case de novo, the Court of Appeals cited evidence that in the form of a letter from the Plaintiffs’ letter from December 5, 2012.  The Court found the letter was proof that the Schneiders agreed to “modify the original settlement order with respect to the timing of the payment by accepting the $50,000 payment after the closing to obtain release of the deed restrictions.” Hence, the Court held that the plaintiffs waived their rights with regard to both the payment and to enforce the deed restrictions by rejecting the payment and filing the action instead.

The Schneiders also argue that the trial court erred by dismissing their claims against the City, McCallum, and the Rachwals premised on alleged violations of local ordinances – specifically, that the did not like the landscaping on the Rachwal’s property. The Schneiders alleged that they suffered “special injury affecting their rights and substantial interests,” which were detrimentally affected in a manner different from the general public. The trial court ruled that plaintiffs did not have standing to assert such claims.  The Court of Appeals agreed with the trial court, holding that the Schneiders did not show “how any landscaping changes made by the Rachwals impact plaintiffs’ property directly or specifically, in a manner different from the general public.”

The Schneiders also argued that the trial court erred by ruling that their initial attorney, Robert Jacobs, and his associated law firm, Jackier Gould, P.C., were disqualified from representing plaintiffs in this matter due to a conflict of interest.  The Rachwals moved to disqualify Jacobs and his associated firm, Jackier Gould. Mr. Rachwal had been a long-time client of Nathan Upfal and Jackier Gould since 2002.  Upfal continued to represent Rachwal by preparing the annual meeting minutes for his professional corporation. Both Upfal and Jacobs are “of counsel” members of Jackier Gould. Barton sent an e-mail to both attorneys, as well as the named partners at Jackier Gould, alerting them that he was an existing client of the firm and that Jacobs’s adverse representation of plaintiffs was an impermissible conflict of interest, contrary to MRPC 1.7.  The trial court agreed, and the Court of Appeals affirmed after reviewing the facts de novo.

Schneider v. City of Orchard Lake Village, 2020 WL 2505213 (MI App. unrep. 5/14/2020)

This post was authored by Olena Botshteyn, Esq.

Edward Hocker owns a parcel of land located in the town of Riverhead. In 2018, Hocker applied for a building permit to construct a house on the parcel, and the building inspector determined that the proposed construction did not comply with the requirements of the zoning district. Hocker then applied for four variances to the Zoning Board of Appeals (“ZBA”) with respect to the impervious surface coverage, front yard setback, side yard setback, and combined side yard setbacks. At the public hearing, the petitioners that own a neighboring parcel argued that Hocker needs a lot size area variance to build on the parcel. The ZBA determined that such a variance is not required and granted four variances for which Hocker applied. Petitioners then sought judicial action stating that the ZBA acted illegally when it granted the variances; the Supreme Court denied the petition and the petitioners appealed.

On appeal, the court concluded that the ZBA used a required balancing test in granting the application for area variances. The ZBA determined that the proposed construction would not have a negative effect on the character of the neighborhood or on the physical or environmental conditions, and would not be otherwise detrimental to the health and welfare of the community. The court further elaborated that the ZBA did not have jurisdiction to decide whether a lot size area variance was required, because it decided only on the issues of the four variances, submitted for its review. The ZBA has an appellate jurisdiction, and Hocker’s applications were an appeal from the determination of the building inspector specifying the four requirements. Neither petitioners nor any other administrative official submitted the lot size area variance for the ZBA to review. The court thus affirmed the decision of the trial court and concluded that ZBA acted legally when granted the four variances.

Capetola v Town of Riverhead, 2021 WL 9000930 (NYAD 2 Dept 3/10/2021)

This post was authored by Olena Botshtyen, Esq.

Edgar Muller, a petitioner in this case, owns 11 Siberian Huskies that he keeps on a 2.1-acre property in the town of Lewisboro. In July 2017, he applied to the Zoning Board of Appeals (“ZBA”) for a special use permit to operate a private dog kennel and a variance, since the town code only permits to operate a private kennel on lots of four acres or more and provides that the number of dogs over six months of age in such a kennel cannot exceed 10. The ZBA denied both applications. Muller then sought judgment to annul ZBA’s decision and determine that a town code provision § 220–23(D)(7), which only allowed him to keep 5 dogs over six months of age, is unconstitutional. The Supreme Court denied the petition and dismissed the action.

On appeal, the court reviewed two issues: whether the Supreme Court erred in affirming the ZBA decision denying the variance and the special use permit application and whether the Supreme Court properly dismissed the cause of action for a judgment declaring that a provision of a town code was unconstitutional.

On the first issue, the court concluded that the ZBA did not act illegally or arbitrary, it properly applied the required balancing test and determined that the kennel would have a negative effect on the character of the neighborhood or on the physical or environmental conditions. It therefore properly denied variance applications. In the absence of a variance, the proposed project did not meet the requirements for a special use permit, and thus ZBA did not act illegally when it denied the special use permit application. On the second issue, however, the court concluded that the Supreme Court should not have dismissed the cause of action for a judgment declaring that a provision of a town code was unconstitutional. The court stated that a summary procedure shall not apply to causes of action to recover damages or for declaratory relief and to declare a provision unconstitutional pursuant to CPLR article 78. A party may make a request for a summary procedure, but here in the absence of such a request, the Supreme Court erred in summarily disposing the cause of action. The court thus remitted the case to the Supreme Court for deciding on the remaining cause of action. Muller v Zoning Board of Appeals Town of Lewisboro, 2021 WL 900864 (NYAD 2 Dept. 3/10/2021)

This post was authored by Olena Botshteyn, Esq.

Duncan Ventures, LLC (“Duncan”) was planning to demolish a house and construct five attached dwellings on a property in Pittsburgh. To do this, Duncan required several dimensional variances, and filed applications with the City Zoning Board of Adjustment (“ZBA”). ZBA granted the applications, and the trial court reversed. On appeal, the court affirmed, having concluded that Duncan failed to show that the property cannot be developed in conformity with the zoning requirements and the only hardship suffered if the variance was not granted would be self-created.

Duncan had a contract to purchase an irregularly shaped 7500-square-foot parcel of land, which it planned to acquire subject to approval of variances by ZBA. In June 2019, Duncan applied for dimensional variances, seeking to eliminate and minimize certain setback requirements. The application was opposed by the neighbors and other representatives of local community. They submitted a letter to the ZBA, stating that the proposed project “does not present any hardship for why the zoning relief is necessary.” At the hearing held in August 2019, Duncan’s principal presented a financial analysis of the project, citing a purchase price of $415,000. He stated that they considered building fewer houses on the property, which would allow to make the project compliant with the existing setback requirements, however, this would result in the net loss for the project. Neighbors also testified at the hearing. In particular, Jill Joyce, a registered architect testified that the project “would break up the aesthetic continuity of Home Street” and proposed an alternative three-house project, which would be compliant with the setback requirements. Other neighbors expressed traffic and congestion concerns. Despite the neighbors’ testimony, the ZBA granted the variances applications, stating that they “will not cause negative off-site impacts.” Neighbors appealed to the trial court, and it reversed. On appeal, Duncan asserted that the trial court abused discretion and erred in concluding that Duncan failed to meet all of the elements for a variance required by the Code.

The court concluded that the trial court did not err in its findings, since the applicant for a variance failed to meet the necessary three-part standard and did not show (1) any unique conditions of a property that would lead to unnecessary hardship, (2) that the variance would not result in adverse effect on the public welfare, and (3) that the proposed change forms the least modification possible. The court specifically focused on the first part of the standard. It acknowledged that the standard that applies to dimensional variances is more relaxed compared to use variances, and under this standard a financial hardship to the applicant may be considered. However, if hardship amounts merely to landowner’s intent to make the project more profitable, this criterion is not satisfied. Here, Duncan intended to construct specifically five townhouses to outweigh the purchase price. Even if the calculations were correct, the alleged purchase price of $415,000 was contingent on the zoning approval and not a market value of the property. Furthermore, Duncan could cancel the agreement, if the variances were not granted. Duncan did not present any other evidence that the development of the property in accordance with the code is not possible. The court thus concluded that any purported economic hardship was self-created and affirmed.

Lawrenceville Stakeholders v City of Pittsburgh Zoning Board of Adjustment, 2021 WL 836777 (PA Cmwlth 3/5/2021)    

This post was authored by Olena Botshteyn, Esq.

MOJO Built, LLC (“MOJO”), the plaintiff in this case, sought judgment for violation of its procedural due-process rights, substantive due-process rights, and equal protection after the City of Prairie Village, Kansas (“City”) denied its applications to have two properties rezoned and split into two lots. The court granted the defendant’s motion to dismiss.

MOJO is a property developer. In 2018, MOJO bought a property at 7540 Reinhardt (“7540”) and applied to the City to rezone it and to split it into two 60-foot lots. The City granted the applications. Subsequently, MOJO built two houses on the lots and sold for profit. In April and June 2020, MOJO entered into contracts to purchase two other properties at 7631 and 7632 Reinhardt (“7631” and “7632”). The plan was to construct two residential homes on each property, similarly to MOJO’s 7540 project. MOJO then applied to the City to rezone 7631 and 7632 and to split them into two 60-foot lots. The City’s planning commission recommended approval of the applications, but the mayor and the city council denied, stating that they employed “a broader, more holistic approach to planning in the area”. Believing that the City and its employees acted with prejudice, MOJO commenced this action for violation of its procedural due-process rights, substantive due-process rights, and equal protection.

The court concluded that there was no violation on any of the three counts and dismissed the action. With regard to procedural due process, the court determined that MOJO did not have a protected property interest that implicates due process, because it did not have a “legitimate claim of entitlement to a particular zoning decision”. Since MOJO merely had a right to a particular action or inaction by the city without a guarantee of a particular outcome, there was no property interest implicated. Although 7540 had previously been approved, the court concluded that “the expectation of a favorable outcome is irrelevant”.

Further, with regard to substantive due process, the court concluded that this right was not violated, since there was no arbitrary deprivation of a property right and no outrageous conduct by the city council. MOJO argued that during the meeting, which was conducted over Zoom, one of the members “appeared to be consuming alcoholic beverages as a light-yellow wine in a stemless wine glass,” and two others were reading from documents they prepared in advance. However, the court stated that it cannot infer from such actions that multiple members of the city council were “impaired” to make a decision and that they acted outrageously.

Finally, with regard to the equal protection claim, the court found that MOJO cannot compare its own prior treatment on a different piece of property (7540) to the treatment here, as the standard requires comparison to a third-party treatment in similar circumstances. The court thus granted the City’s motion to dismiss.

Mojo Built, LLC v Prairie Village, 2021 WL 826239 (D. KS 3/4/20201)

This post was authored by Georgia Reid of Touro Law Center

Town residents and gun rights advocates are battling in court over the use of 30 acres of land in the town of Pawlet, Vermont.  The land was being used as a tactical shooting training facility called Slate Ridge.  According to Slate Ridge’s Facebook page, it is  an “Educational Consultant” that provides “solutions for a dynamic threat environment.”  What started as a zoning dispute over the area between Slate Ridge’s owner, Daniel Banyai (“Banyai”), and surrounding neighbors escalated into the town filing for an injunction on January 4, 2021.

The Town of Pawlet (“Town”) asked the Vermont Superior Court (the “Court”) to issue a preliminary injunction, barring Banyai from using his property as a school or firearms training facility until he applies for and receives the necessary municipal land use permits for such purposes. (source: Entry regarding Motion for Preliminary Injunction).  Banyai did not file a specific objection to the motion, but he made claims that could be read as challenges. 

Previously, Banyai received a notice of alleged zoning violation (“NOV”) which he did not timely appeal.  Since he did not file, the Court found that Banyai relinquished his right to challenge factual and legal representations in the NOV.  The Court assessed the NOV to determine whether the conceded facts warranted the granting of the requested preliminary injunction filed by the Town.

The primary allegations of the Town’s complaint in the NOV were that Banyai and his agents had erected buildings on the property without receiving the necessary zoning permits.  The buildings were being used as a “school or other uses.”  Banyai had not received prior approval for the buildings or their uses. 

At a merits hearing conducted on December 16, 2020, Banyai and his Attorney offered testimony and other evidence.  The merits decision is forthcoming and will come under advisement once the parties file reply briefs.  The deadline to do so was February 1, 2021. 

At the merits hearing, Banyai challenged the Town and its agents’ actions but did not contest the primary allegations in the Town’s complaint.  The Court found that Banyai also did not present credible evidence to contest the Town’s presentations that his operation of a tactical shooting facility, with one or more shooting ranges, had been the source of abutting neighbors’ concerns. Further, Banyai did not specifically contest the Town’s assertion that his use of the unpermitted buildings continued unabated through the date of the trial. Finally, Banyai made no effort to apply for or obtain the municipal land use permits necessary to authorize his buildings, other than the garage/apartment building previously approved.  In a New York Times article, Banyai said he prefers to ask for forgiveness rather than permission.  (https://www.nytimes.com/2021/02/23/us/vermont-gun-range-pawlet-zoning.html?smid=url-share).

As for the injunction, The Court wrote that an injunction “is generally regarded as an extraordinary remedy and [should] not be granted routinely unless the right to relief is clear.” Committee to Save the Bishop’s House v. Medical Center Hospital of Vermont, Inc., 136 Vt. 213, 218 (1978), (citing 11 C. Wright & A. Miller, Federal Practice and Procedure: Civil § 2942, at 368 (1973)). The Court had a 4-factor test on whether to grant an injunction: (1) the threat of irreparable harm to the movant; (2) the potential harm to the other parties; (3) the likelihood of success on the merits; and (4) the public interest.

Since Banyai did not get the applicable permits for his shooting range and developed the land before any necessary review under land-use regulations, the Court found that this left town officials and citizens with a complete lack of notice.  For this reason, the Court found that factor (4)  – public interest – was satisfied.  Since the activities on the shooting range affected neighbors, factor (2)  – the potential to harm other parties – was also satisfied.  As for factor (3),  the Court noted that it was currently undergoing deliberation of a merits decision, and therefore the Court gave that neutral weight in the analysis.  And for factor (1), the Court wrote, “It is difficult . . . to imagine an alleged zoning violation that could be the source of more significant irreparable harm than an unpermitted shooting range.”  For these reasons, the Court granted the Town’s request for the preliminary injunction.

Pawlet v Banyai, Docket No. 105-9-19 Vtec (VT Sup. Court 1/21/2021)

UPDATE: In a final ruling on March 5, 2021, Judge Durkin ruled that the notice of violation is still valid, and Banyai owes the town $100 for each of the 466 days since he was served. He must also hire a Vermont-licensed surveyor or engineer to complete a detailed site plan of his property, then deconstruct the buildings there. The court also continued the conditions of the injunction that was issued in January.

See, https://www.vermontjudiciary.org/sites/default/files/documents/Town%20of%20Pawlet%20v%20Daniel%20Banyai%20105-9-19%20Vtec%20M%20Prelim%20Injunction.pdf

This post was authored by Olena Botshteyn, Esq.

The Supreme Court concluded that the board of adjustment of Cerro Gordo county illegally granted an area variance for construction of a pergola in violation of setback requirements. The court vacated the judgment of the court of appeals and reversed the judgment of the district court, which previously made a distinction between the requirements for an area variance and a use variance, determined that a lesser showing was required for an area variance, and concluded that the variance was legal.

Sauls own a property located in a district zoned as R-3, single family residential district, in Cerro Gordo County, Iowa. The county ordinance requires to avoid construction in this district within a six-foot setback of property lines. Unaware of this requirement, Sauls constructed a pergola and a patio, which had a twenty-one inches setback. Property owners were then notified by the local planning and zoning administrator that their construction violated the zoning ordinance. Following these events, Sauls applied for a variance. The variance application form required an explanation of unnecessary hardship, which would be suffered if the variance was not granted. Sauls failed to provide the proper evidence of such hardship, as they did not provide the reasons why the property without a pergola cannot yield a reasonable use, what is unique about their property and merely stated that the pergola is a great use of space and would shade the front yard, which would allow to save energy. At the public hearing for a variance, the applicants did not provide any additional evidence of the unnecessary hardship, and although it was noted that there was no walking space between the patio and the neighboring fence, there were no complaints from the neighbors. Two of the board members concluded that a pergola was a nice addition to the neighborhood and granted a variance. The owner of the neighboring property then challenged the board’s action, the district court concluded that the board’s determination was legal and the court of appeals affirmed. The Supreme Court then reviewed for the correction of legal error.

The court concluded that the court of appeals erred in determining that standards for granting an area and use variance differed. When making its judgment, the court of appeals relied on Christenson case. This case explained the difference between two uses and stated that a lesser showing for an area variance is required, as an area variance does not involve a use prohibited by an ordinance, but is rather a deviation from certain requirements (such as setback requirements). Having stated that an area variance traditionally requires “a slightly lesser showing”, Christenson however did not adopt a proper standard.

The court then concluded that a Deardorf standard, which was mirrored in the county zoning ordinance shall be strictly applied here. By stating so, the court referred to legal academia, and particularly to Williams Hines, the former dean of the Iowa College of Law, who stated that regardless of different purposes of the area and use variance, “two-thirds of U.S. states, including Iowa, apply the same strict requirements for granting them both”. The court also referred to the relevant case law and determined that Deardorf standard was consistently applied in the past. Pursuant to this standard, it must be shown that if the variance is not granted, a land cannot “yield a reasonable return”, that the land is unique, and that the use “will not alter the essential character of the locality”. The court concluded that Sauls failed to meet this standard, as they did not provide sufficient evidence for either factor. They did not fully fill out the application form; moreover, the planning and zoning administrator submitted a letter to the board stating that prohibiting the pergola would not cause a hardship, as there was an existing reasonable use of the property. Further, the court concluded that their will to shade the property was not a unique circumstance distinct from general conditions in the neighborhood. The court thus determined that the board of adjustment acted illegally in granting the Sauls’ application for a variance, and reversed. 

Earley v Board of Adjustment of Cerro Gordo County, 2021 WL 744513 (IA 2/26/20201)

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