Posted by: Patricia Salkin | August 1, 2017

MT Supreme Court Upholds Denial of Variance Request for Residential Garage

Todd Carlson began construction on a detached garage on his property in a subdivision outside of Billings, Montana, without first obtaining a zoning compliance permit. The garage’s size and setbacks from the property line violated county zoning regulations. Carlson’s next-door neighbor, Jason Frank, filed a complaint with the Yellowstone County Code Enforcement Office due to the close proximity of Carlson’s garage to Frank’s fence. Carlson requested a variance from the Yellowstone County Board of Adjustment. The Board denied the variance request, and Carlson appealed to the District Court, which upheld the Board’s decision.
On appeal, Carlson argued that the various factors evaluated in determining whether a variance should have been granted, weighed in his favor. Carlson first contended that the economic hardship he would endure if he was ordered to tear down his garage was not self-inflicted and that the Board failed to consider equitable principles underlying his claim. The Board reasoned that Carlson’s hardship, the economic waste of tearing down a partially built garage, was not a hardship that was peculiar to his land. Here, the record indicated that Carson began construction without first requesting a zoning compliance permit, and he continued construction even after he was informed that his garage did not comply with zoning regulations.
Additionally, the Board concluded that literal interpretation of the zoning regulations would not deprive Carlson of any right enjoyed by nearby property owners. While the Board had granted variances for oversized, detached garages, it had permitted a maximum size of 1,500 square feet, much less than Carlson’s 2,140-square-foot garage. Furthermore, even though Carlson substantiated his position with evidence that his garage was well-built and aesthetically pleasing, he did not dispute that it violated the size and setback requirements, or that it was considerably larger than other structures the Board had permitted. Accordingly, the court held that the District Court did not abuse its discretion when it upheld the Board’s denial of Carlson’s variance request.

Carlson v Yellowstone County Board of Adjustment, 2017 WL 3263083 (MT 8/1/2017)

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