WHEN AND WHEN NOT TO GRANT A ZONING VARIANCE

Jun 11, 2015

Variances from a City’s generally applicable zoning regulations are within the exclusive statutory authority of a City’s Zoning Boards of Appeals (“ZBA”). A variance is appropriate when it will help avoid an undue or unnecessary hardship. But how is a ZBA to know whether a proposed variance might result in such a hardship? The Iowa Supreme Court has adopted a three-part analysis. See Greenawalt v. Zoning Board of Adjustment of City of Davenport, 345 N.W.2d 537,541-42 (Iowa 1984). Under this analysis a city’s ZBA must consider the following questions:

First, does the current zoning deprive the applicant of ALL beneficial use the applicant’s land? In other words, does it render the property unsuitable for any use permitted by zoning? If so, a city’s ZBA should not grant the variance. It is not enough that a variance might permit a more beneficial or profitable use.

Second, is the hardship at issue due to unique circumstances particular to the LAND? As tempting as it may be, a city’s ZBA should avoid the temptation to consider the owner’s personal circumstances. If the hardship is not due to something unique about the land itself (i.e., shape, topography, etc.) a city’s ZBA should not grant the variance.

Third and finally, will the proposed variance alter the character of the locality? This is perhaps the most subjective of the three questions and allows a city’s ZBA the most discretion. Under the Iowa Supreme Court’s analysis, an applicant’s failure to prove even one of the three elements is fatal to the application.

Any person aggrieved by a decision of a City’s ZBA may file a petition for Writ of Certiorari with the District Court within thirty (30) days of the ZBA’s decision. Under this procedure, the court will essentially makes its own determination as to whether or not the ZBA acted appropriately, based primarily upon a review of the ZBA’s own record of proceedings. To prevail there must be substantial evidence in support of the ZBA’s decision. In other words, reasonable minds must be able to accept the ZBA’s evidence as adequate to reach the same conclusion. If a ZBA’s decision is open to a fair difference of opinion, courts will typically defer to the ZBA’s judgment even if they do not necessarily agree with it.

So how does a city best protect itself? A city’s ZBA should ALWAYS prepare a detailed record of its proceedings including specifically findings of fact, which are required by law and are an important part of the record on appeal. The Supreme Court of Iowa has not mandated exactly what these findings of fact must include. They must, however, be sufficient to enable a reviewing court to determine with reasonable certainty the factual basis and legal principals supporting the ZBA’s decision.

What should your city’s ZBA’s findings of facts include? While there is no fixed formula, including at least the following would be a good start: a list of parties present; a narrative description of the facts, arguments presented, and ZBA discussion; a list of parties present; findings as to each of three prongs of the required analysis; the ZBA’s ultimate finding as to whether there exists an undue or unnecessary hardship; the ZBA’s decision on the application; and, if granted, the scope and extent of variance. It may also be advisable for a ZBA record its proceedings. Not only would this assist in preparing minutes and written findings of fact, it would also constitute part of the record in the event of an appeal to the District Court.

The Iowa Supreme Court’s test for whether or not to grant a variance is certainly not new; yet it appears not to be as widely known, or perhaps followed as often as it should be. If you have questions about variances or other zoning or land use matters, please contact Steven C. Leidinger at sleidinger@lynchdallas.com or 319-365-9101.



Tags: City Law
Category: City Law

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