Tuesday, February 22, 2011

Some Observations on Morikawa v ZBA of Weston

Yesterday, we discussed Morikawa v. Zoning Bd. of Appeals of Town of Weston, 126 Conn.App., 2011 WL 341683 (Conn.App.2011), a Connecticut case where the court reversed the issuance of a zoning variance based on the self-created hardship doctrine. Today, it might be useful to compare and contrast the Connecticut case with how a Tennessee court might apply Tennessee law to a similar fact pattern. there are several points I wish to make including the following: the importance of the exceptional physical features clause under the Tennessee zoning variance enabling legislation (Tenn Code Ann §13-7-207 (3)); equitable estoppel issues; and the the minimus theory of zoning variances.

Today I want to focus on the difference between the Connecticut situation and a variance under similar circumstances here in Tennessee. As I alluded to yesterday, the Connecticut variance statute does not emphasize that the undue hardship or practical difficulty must be found in some exceptional situation or condition of the property. The Tennessee statute however does make that quite clear. The hardship or difficulty must be as a result of some exceptional narrowness, shallowness, shape, topographic condition or some other situation or condition of the property. Thus, in Tennessee, the court would not need to reach the issue of self-created hardship. The lack of some exceptional physical condition of the property, different from the surrounding properties, would be sufficient to deny the variance. To be sure, the fact that the violation was created by the property owner makes it even easier, but there is, frankly, no reason to even reach that issue. In the absence of some unusual physical condition of the property, there is no grounds for a variance. The threshold issue has not been met, and there is no need to go further.

As an example, the leading case on variances here in Tennessee is McClurkan v Metro Board of Zoning Appeals, 565 S.W. 2d 495 (Tenn. App. 1977), a case where the property owner converted an existing residential dwelling to a four family residential dwelling. Unfortunately for the property owner, the building was located in a zoning district which only permitted one or two family dwellings, and was thus a violation of the local zoning regulations. While the Tennessee Court of Appeals mentions the self-created hardship, the court relied mainly upon the fact that there was no evidence of any exceptional physical feature justifying the relaxation of the zoning standards. As another example, unpublished case that I tried many years ago, Biggs v Metro Board of Zoning Appeals, the property owner had built his garage 22.5 feet from the side property line, and 25 foot side yard were required. As a result, he asked for a 2.5 foot side yard variance. While I represented the Board of Zoning Appeals, I nevertheless felt very sympathetic to the property owner’s plight. The construction of the garage inside the minimum allowed side yard had simply been in error, but to would cost a substantial amount of money and frankly not benefit anyone. Unfortunately, the property owner on that side of the applicants property, opposed issuing the variance, and the zoning board found no justification for granting a variance. The case ultimately wound up before the Tennessee Court of Appeals, and again, while I was fairly sheepish about representing the board on such a minor deviation from the law, the law of variances in Tennessee is very clear, and there was no way to justify any variance in the fact that the zoning board had not granted one made even easier. The courts defer to the decision of the board and refused to reverse.

The Connecticut court did briefly discuss siting issues and topographic issues but it dismissed those indicating that they were clearly not sufficient to justify the variance. It is unclear why: based on the case, my best guess is that those issues were not dissimilar from other properties in the surrounding vicinity and there was therefore no exceptional physical feature justifying a variance. Again, that most likely would’ve been the end of it in Tennessee.

Two other quick notes are worthy of mention. First, the applicant for the variance argued just up to the edge of an estoppel, but then backed away, evidently based on the fact that Connecticut follows the majority rule, and then estoppel against the building official does not accomplish anything. To be more specific, the applicant argued that the building code official should have discovered the violation of the 35 foot height regulation long before he actually discovered it. Possibly during construction, although it’s not entirely clear what the homeowner’s argument was. If the building code official had discovered the violation during construction, perhaps it could have been corrected before the building was completed, that significantly less cost to the homeowner. Therefore, the homeowner try to argue that the building code official’s failure to discover the violation caused the hardship in some respect. The difficulty here is that the majority rule across the United States, recognized here in Tennessee is well, is that to the extent that there is a violation of building or zoning law, the property owner gains nothing from the failure of the building code official to properly enforce the requirements. The policy reasons for this is that otherwise any mistake by the building code official would work a zoning change or change the building code. And that would be done without a vote of the local legislative body. In other words, the local building code official or zoning administrator would buy Fiat be able to change the requirements of the code. The majority rule across the United States is that this cannot happen. There is no estoppel against the local government based on the actions of the building code official in most circumstances. That is especially true where there is a violation of the law.

Finally, one other quick note. The homeowner also argued that the violation of 2'7" was de minimus and that no showing of any unusual or exceptional physical feature was necessary. The problem of course is that Connecticut law does not recognize de minimus variances, for lack of a better term. Without enabling legislation to specifically authorize such actions, the board had no power or authority to grant in the absence of an exceptional physical feature of the land.

However, it is worth considering the idea of de minimus variances. The plight of the homeowner in the situation is not uncommon; assuming that there was no intentional violation of the law (and one could argue here that perhaps there was based on the fact that the original plans showed a 38 foot tall roof, and at the end of construction, although the plans had been revised, the roof stood at just under 38 feet tall), there can always be some minor violation just because of simple measuring mistakes and other errors. Does society benefit by requiring a property owner to go to great lengths and significant expense to correct a fairly minor violation of the law? From my perspective, the answer is no. It would be well worth having a provision within the Tennessee variance enabling legislation allowing the zoning board to grant a de minimus variance (perhaps we should call it something else, and I’ll suggest the term minor adjustment) where the applicant did not intentionally create the violation, and the violation itself is no more than 10 or 15% of the permitted zoning regulations.

So for example, in the case of the 35 foot height regulation in Connecticut, so long as the property owner did not exceed the height regulation by more than 3.5 feet, the zoning board could grant the minor adjustment without a demonstration that there is any exceptional physical feature justifying that decision. There are several problems with this approach unfortunately. First, property owners may come to feel that they are entitled to the 10 or 15% adjustment. Second, in terms of larger variances where exceptional physical features must be demonstrated, the fact that a 10 or 15% variance can be granted for no reason whatsoever, would encourage applicants to ask for even greater amounts for particular projects. And those requests might seem justified given the fact that the legislature has seemingly given its blessing to a 10 or 15% variance without any particular demonstration of hardship.

On balance, it seems to me that the minor adjustment theory is worthwhile and would make a reasonable and legitimate extension of the powers of municipal zoning boards. It would be interesting to review a large set of variance requests, say from the city of Nashville, to see how many cases involve relatively minor variances where this kind of mistake was responsible for the requested relief. My guess is that a fairly significant quantity of zoning variance cases come about in just this way. And so long as the relief granted is relatively minor, and does no harm to the fabric of zoning protection in the neighborhood overall, it would not seem to be against public policy to allow the zoning board to grant such minor adjustments.

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