We have discussed in the past the difficulties encountered by property owners attempting to obtain variances under Tennessee law. Tenn. Code Ann. §13-7-207 (3) requires that there be some exceptional physical feature which justifies the relaxation of the zoning requirements as to any particular property, and that that exceptional physical feature not the shared by other properties in the general vicinity.
In Caffey v Metro Board of Zoning Appeals, the property owner requested basically an extension of a previously granted variance in the required side yard. The side yard, as required by the zoning ordinance, had only to be 5 feet wide; previously, the zoning board had granted a variance of 4 feet, and the property owner now returned with a request to extend that variance by one more foot, allowing construction right up to the property line.
The decision by the Court of Appeals, does not discuss the factual basis for the variance granted by the zoning board in any detail. Frankly, two very practical considerations seem to be at play here: first, that there was an assumption that there was a unique physical feature on the property by virtue of the original zoning board decision (something which probably should never be assumed); and second, that a 12 inch variance was nothing to get too excited about.
Although the adjacent property owner protested and appealed, the zoning board granted the variance, the trial court affirmed the variance, and the Court of Appeals reach the same conclusion.
This might perhaps be viewed as an exception to the general rule of great difficulty in obtaining variances under Tennessee law, but more likely it is explained by the two factors above: the zoning board had already granted a variance so there must’ve been some exceptional physical feature, and to extend that variance only another 12 inches, did not seem like any particular problem.
It’s an interesting case, and worth review. It’s unusual to find a property owner returning for an extension of the original variance. In fact, I can’t think of any case that I know of where that has happened before in my experience. But, if you have a client who has a similar situation, the difficulty obtaining an extension may not be that great.