MARSHAL LAW
“HURDLES IN ADMINISTRATIVE ZONING: GET UP TO SPEED – THE QUICK AND EASY WAY”
BY MARSHAL PITCHFORD
Ever wonder what a variance is? Who are the interested parties when your neighbor or constituent wants one? As a matter of fact, you recently overheard the mayor mention the zoning appeal board yesterday, but have no idea what it does. You are not alone. Let me help.
As discussed in this column recently, there are different tools governments employ when “zoning” their community. Legislatively, regions are classified into zones. Standards or rules are also established for building heights, parking lot size, lighting, storm sewer systems, etc. If a constituent wants to build something outside these rules, he or she must apply for a variance or conditional use permit. This is the administrative side of zoning.
In general, city, village and township boards of zoning appeals are delegated the final authority to grant “variances” from zoning law requirements. There are two types of variances: “area” and “use” variances. A “use variance” allows a landowner to use the property for purposes other than those permitted in the district. “Area variances” do not involve “uses,” but rather are limitations on building heights, yard sizes, lot dimensions, etc. On the other hand, a “conditional use permit” is an application for approval of a particular use that is not expressly permitted, but that the zoning code permits under certain conditions to ensure that it is harmonious with the surrounding area.
Of course, the analysis is different depending on your governmental authority. If you are homeowner in a municipality, the criteria for a variance are likely detailed in the city’s charter and/or corresponding ordinances. If you are a township or your municipal charter is silent on the issue, one must reference the Ohio Revised Code. The latter is discussed here.
An application for the variance is the first step. The application details the intended use or restriction variation, and, generally speaking, will have supporting information, which depending on the complexity of the request, may include the studies, statistics, design, drawings and other similar documents. However, whether the project is a simple addition of a room in the back of a residence or a construction of a grand office complex in a residential area, the law is the same. The following standards are those to which an applicant should focus its evidence.
The standard for “use variances” is typically whether literal enforcement of the resolution will result in “unnecessary hardship.” In a legal sense, this is a very high standard that, for practical purposes, requires the property owner to establish that it is unable, due to the character of the property, to use the property for one of the purposes outlined in the zoning classification. As the Ohio Supreme Court has held, “[the] mere fact that one’s property can be put to a more profitable use does not, in itself, establish an unnecessary hardship.”
The standard for an “area variance” does not require the landowner to meet this high standard.
Rather, the Ohio Supreme Court has held that the property owner must demonstrate “practical difficulties” based upon a balancing of the following seven, non-exclusive factors:
(1) whether the property in question will yield a reasonable return or whether there can be any beneficial use of the property without a variance;
(2) whether the variance is substantial;
(3) whether the essential character of neighborhood would be substantially altered or whether adjoining properties would suffer a substantial detriment as a result of the variance;
(4) whether the variance would adversely affect the delivery of governmental services (e.g., water, sewer, garbage);
(5) whether the property owner purchased the property with knowledge of the zoning restriction;
(6) whether the property owner’s predicament feasibly can be obviated through some method other than a variance;
(7) whether the spirit and intent behind the zoning requirement would be observed and substantial justice done by granting the variance.
No single factor is determinative, and the analysis focuses on “the spirit rather than the strict letter” of the ordinance.
Next, the Board of Zoning Appeals or Zoning Commission will hold a hearing. At the hearing, citizens may attend and be heard. A word of caution though. The law requires that a decision be made on the evidence and objective facts, not the subjective and unsubstantiated opinions and comments of citizens or surrounding landowners. Witnesses testify under oath and can be cross-examined. A transcript or tape recording can be made, and a written decision should follow.
A dissatisfied applicant may then go to court. Within thirty (30) days of the decision, a party can appeal to the local common pleas court, which will determine whether any application and evidence introduced at the hearing satisfy the relevant criteria. At this point, the aggrieved constituent’s burden is even higher. The Ohio Revised Code requires the court to presume the zoning board’s decision is valid and reasonable unless the aggrieved party can establish a decision is “arbitrary, unreasonable or unsupported by a preponderance of the evidence in the whole record.” The Ohio Supreme Court has stated that the court may not “blatantly substitute its judgment for that of the agency, especially in areas of administrative expertise.” If a preponderance (or more than 51%) of the evidence supports the decision, the court of common pleas will affirm. However, inconsistent or arbitrary enforcement of a zoning ordinances, through the granting of variances to some property owners and not others can be grounds for reversal. If a property owner provides evidence of inconsistent enforcement, the board of zoning appeals should provide an explanation for the difference in treatment. In short, the board must mete out equal justice.
Finally, once the court of common pleas renders its decision, an appeal may be brought to the district court of appeals. The legal evaluation there is even more limited. A district court of appeals may review the judgment of the common pleas court only on questions of law, and its decision will be limited to whether the lower court “abused its discretion.”
While legally charged, the process is not an overwhelming one. Each case will be different, and is always driven by the evidence attached to the application and submitted at the hearing. As with most things in life, preparation will be the key. If the decision is to be upheld, the government’s perspective will be best served with a detailed explanation as to why the request did not meet the prescribed tests.
