Posted by: Patricia Salkin | February 26, 2021

IA Supreme Court Concluded the Board of Adjustment Acted Illegally in Granting an Area Variance

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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