Iowa Supreme Court Reverses Area Variance for Pergola
On February 26, 2021, the Iowa Supreme Court issued an opinion concerning whether a county board of adjustment illegally granted an area variance. Because the homeowners did not present sufficient evidence of an unnecessary hardship, the Court ruled that the board illegally granted the request for the variance.
A couple owned a home in a district zoned single family residential. A county zoning ordinance required at least a six-foot setback. The homeowners, unaware of this ordinance, hired a contractor to build a pergola over their pre-existing patio. The pergola and the patio were within twenty-one inches of the homeowners’ boundary line. After the pergola was built, the county zoning administrator informed the homeowners that the pergola violated the county ordinance.
The homeowners sought a permit, but were denied due to the setback violation. The homeowners then applied for an area variance. After a hearing, the board approved the variance and waived the penalty imposed for building without a permit. The owner of the neighboring property then brought this lawsuit claiming the board illegally granted the variance. The district court found that the board acted legally and the Iowa Court of Appeals affirmed. The Supreme Court granted the neighbor’s request for further review.
Area Variance Standard
A board of adjustment may grant an individual a variance to deviate from the local zoning laws. Iowa Code § 335.15(3). An area variance allows for deviation from a specific requirement while a use variance permits a landowner to use their property in a manner not prescribed by the zoning ordinance. The board cannot grant a variance unless the applicant shows that the enforcement of a zoning provision will result in unnecessary hardship. To demonstrate unnecessary hardship, the applicant must show that:
(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; and (3) the use to be authorized by the variance will not alter the essential character of the locality.
Deardorf v. Bd. of Adjustment of Plan. & Zoning Comm’n, 118 N.W.2d 78, 81 (1962). The Court of Appeals held that a less strict burden than the Deardorf standard was required when approving an area variance. Based upon this determination, the Court of Appeals found there was substantial evidence to support the board’s decision to approve the homeowners’ request.
On appeal, the Supreme Court disagreed, explaining that Iowa courts and local zoning authorities had adopted the Deardorf standard for more than 60 years. While there are legitimate reasons to distinguish between use and area variances, under the principle of stare decisis, the Court ruled that adhering to precedent promotes stability and efficiency of the judicial process. Additionally, the Iowa Legislature had not initiated any type of legislative response to show its disapproval of the Court’s past interpretation of Iowa Code § 335.15(3). Therefore, the strict Deardorf standard applies equally to both use and area variances.
After concluding that the Deardorf standard was the proper standard for an area variance, the Court next considered whether the homeowners had met that standard.
The Court first considered whether the homeowners had shown that their property could not yield a reasonable return without the variance. To meet this standard, applicants must show that a reasonable return is not possible from the permitted use.
In the variance application, the homeowners did not answer why the lack of a variance created a hardship. At the hearing, the homeowners did not testify or offer evidence of a hardship caused by denying the variance. The homeowners only offered evidence of the advantages the pergola provided, including shade and decorative value. The homeowners did not provide evidence that they were deprived of all beneficial use of their land, but instead only provided information on the benefits of the pergola. Therefore, the homeowners did not establish their property could not yield a reasonable return without the variance.
Next, the Court considered whether the homeowners established that the need for a variance was due to unique circumstances of the property. The homeowners built the pergola for shade, but this is not a circumstance unique to the property. The homeowners did not offer any additional information on this element. Therefore, the homeowners did not establish the “plight of the owner is due to unique circumstances and not to the general conditions in the neighborhood.” Deardorf, 118 N.W.2d at 81.
Finally, the homeowners argued that the variance should be granted because they completed the pergola construction in good faith without realizing it violated the zoning ordinance. In response, the court ruled that a variance should not be granted because an applicant spent a substantial amount of financial resources. Even though the pergola was already completed in good faith, the Court held this was immaterial to granting a variance. To hold otherwise would mean that an ordinance only applies to “persons who are conscientious enough to adequately inform themselves of its provisions and who have actual knowledge of its terms.” Board of Adjustment v. Ruble, 193 N.W.2d 497, 505 (Iowa 1972).
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