Board of Adjustment Legally Granted Hardship Variance

July 28, 2020 | Kitt Tovar

On July 22, 2020, the Iowa Court of Appeals issued an opinion affirming a Board of Adjustment’s grant of an area variance. The Board properly considered all evidence and accurately applied Iowa law when granting a variance to prevent unnecessary hardship.

Background

A couple owned residential property with a patio. The patio ended within twenty-one inches of the boundary line. However, local ordinances required a six foot setback distance. The homeowners built a pergola over the patio to provide shade, but the structure did not extend past the patio.

In 2018, the County Planning and Zoning Administrator informed the homeowners they may have violated a county zoning ordinance because they did not have a permit when they built the pergola. The homeowners applied for a permit, but it was denied because of the pergola’s proximity to the lot line. The homeowners appealed to the County Board of Adjustment seeking an area variance. At the hearing, no one appeared to dispute the request. The Board granted a variance finding the pergola was already built, the patio and posts for the pergola preexisted the pergola, and the new structure did not create any safety concerns.

The next month, a neighbor who shared the boundary line with the patio and pergola petitioned for a writ of certiorari claiming the Board granted the variance illegally without substantial evidence. The homeowners intervened and the district court found the Board acted properly in granting the variance and did not abuse its discretion. The neighbor appealed.

Zoning Variance

A board of adjustment may grant a variance if it does not harm the public and enforcing the zoning ordinance would create unnecessary hardship due to the special conditions of the area. Granting an area variance requires less justification than granting a use variance. Such an applicant must show they will experience unnecessary hardship without the variance. To prove unnecessary hardship, an applicant must show:

  1. the land in question cannot yield a reasonable return if used only for a purpose allowed in that zone;
  2. the plight of the owner is due to unique circumstances and not to the general conditions in the neighborhood, which may reflect the unreasonableness of the zoning ordinance itself; and
  3. the use to be authorized by the variance will not alter the essential character of the locality.

Graziano v Bd. of Adjustment, 323 N.W.2d 233, 236 (Iowa 1982). In this case, the applicants owned residential property not intended for profit. Because of this, the court considered whether denying the variance would result in preventing the homeowners from peacefully enjoying their property rather than considering the property’s reasonable return. The court found the homeowners could not fully utilize their yard without the pergola which would decrease the property value.

Next, the applicant must also prove there are unique circumstances. The property had a preexisting patio. There was no evidence of when the patio was built, and the neighbor was only bringing a complaint regarding the pergola. Additionally, the neighbor’s home had a significant separation from the pergola. The court found this qualified as a unique circumstance.

Finally, a variance can only be granted if it will not alter the character of the area. The Board found that because the patio already was built, the pergola did not create a change in character to the neighborhood. Additionally, several board members stated it was an attractive addition to the neighborhood. Because the homeowner’s demonstrated unnecessary hardship, the Court of Appeals affirmed the ruling that the Board did not act illegally when granting the variance.