Land Use Planning Outline

Christian Turner/ Land Use Planning/ Spring 2012

Variances

1. Types of Variances

a. Use Variance: Special use which is not allowed in the zoning (not allowed in Athens)

i. Only granted in exceptional cases (MATTHEW)

b. Area Variance: Variance based on character of area

i. IE convenience store, zoning requires nine parking spaces, but the area is a weird corner, there is lots of parking nearby, wont be able to build the store if following the original zoning: we let it slide.

ii. Sometimes same standard is used for area variance as use variance, sometimes other tests or multi-factor balancing test/cost-benefit calculation- IE New York

c. Variances almost always granted

2. Variance Factors (MATTHEW)

a. Variance needed because of the unique character of the property

i. something unique to the property that makes the application of the zoning ordinance a bit weird

ii. CANNOT BE SELF-CREATED: ZANIEWSKI

iii. Runs with the land

b. Undue hardship or practical difficulties/unnecessary hardship (some states, like GA, require both)

i. Undue Hardship:

i. No use for land without variance

ii. Not allowing use would result in taking

iii. Deprived of ALL beneficial use

1. Must be proven soundly as in dollars and cents comparison to like property (NORTH WESTCHESTER PROFESSIONAL PARK)

iv. REQUIRED FOR USE VARIANCE UNDER NEW YORK LAW

ii. Practical difficulties

i. Less rigorous standard than Undue Hardship

ii. Only applies to area variance

iii. Like cost-benefit calculation

c. Meet spirit of zoning ordinance

i. Hardship not necessary for implementation of plan

ii. Size of plot immaterial (JANSSEN)

i. Unless specified in statute

d. Substantial justice between variance owner and neighbors

3. Other Approaches

a. New Hampshire: you can get it if

i. regulation interfered with reasonable use +

ii. no reasonable relationship between purpose of zoning and owner’s problem +

iii. no injury to any other’s public and private rights

4. Cases

a. Matthew v Smith

i. general standard for getting a variance is that strict compliance with the letter of the code would create practical difficulties OR unnecessary hardship.

b. Janssen v Holland Charter Township

i. Man wanted to increase allowed residential density

ii. Township got mad because it was a massive piece of land

iii. Court allowed variance because they found that nothing in the ordinance restricted variances based on size of land

iv. BUT if giving a variance to such a massive area, isnt it like a rezoning?

i. Rezoning must be done by legislative body, not BZA

v. In the Comprehensive Plan, the land was identified as potentially developable in the future

c. Zaniewski

i. Standards for ensuring that area variance does not jeopardize the orthodox quartet: (Town Law § 267-b (3)

i. (1) whether an undesirable change will be produced in the character of the neighborhood or a detriment to nearby properties will be created by the granting of the area variance;

ii. (2) whether the benefit sought by the applicant can be achieved by some method, feasible for the applicant to pursue, other than an area variance;

iii. (3) whether the requested area variance is substantial;

iv. (4) whether the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district; and

v. (5) whether the alleged difficulty was self-created”

Special Use Permits

1. When required:

a. When the ability to have special use is specifically listed in the zoning

b. Special uses have their “genesis in the ordinance”: PARKVIEW

c. Reasons for requiring special use:

i. Might be alright, but we have some concerns

ii. This use may be made in an incompatible way, so we have to be careful

iii. Board has to examine use and then decide whether to grant, what conditions must be followed

iv. Example:

i. Residential Zone, want to operate daycare center in your house

ii. Board may approve, but state that there is no more than a certain number of families, drop off and pick up between these hours, etc

2. Athens standards for Special Use permit approval

a. Criteria from ACC for Approval

i. Meet ordinary criteria for that zone (but ACC may waive standards provided that spirit and intent are complied with- kinda like area variance)

ii. Livability: That the adverse effects will have no greater impact than the intended use for the zone

i. ‘No greater adverse material effect’

ii. Multi-factor balancing test : in relation to the target zone, the special use:

1. Similarity in scale, bulk, and coverage.

2. Generation of traffic and effects on surrounding streets. Increases in pedestrian, bicycle, and mass transit use are considered beneficial regardless of capacity of facilities.

3. Architectural compatibility with the impact area.

4. Air quality and water quality, including the generation of dust, odors, or other environmental pollutants.

5. Generation of noise, light, and glare.

6. The development of adjacent properties compatible with the future development map and the zoning district.

7. Other factors found to be relevant by the hearing authority for review of the proposed use.

a. grants a lot of discretion

3. Strategy to get special use permit

a. First place to go is to planning commission staff

i. They will make recommendations to Board

ii. Will give suggestions that will help gain approval later

b. Look at standards, make memo stating how you will meet those standards

4. Cases

a. Jones v C