Board of Adjustment Agenda and Packet 2011 06 15

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applicants to obtain relief from strict application of zoning regulations on matters such as setbacks, building heights, parking requirements, signs, and other physical and structural requirements of the zoning ordinance. Obtaining a variance "is the recognized and approved legal device by which the basic constitutional right of property is reconciled with the paramount right of government to protect by zoning the public health, safety, morals and welfare." 8 McQuillin Mun. Corp. § 25:179.37 (3rd ed.) If variance criteria are so strict that it is impossible to obtain a variance, a person could contend that their constitutional property rights have been violated. Moreover, less stringent variance criteria may be desirable given the unique nature of property and variance applications. There are times when the Board will find that there are practical difficulties or unnecessary hardships that prevent compliance with the strict letter of the zoning ordinance, but will be unable to grant a variance because the variance request does not meet all of the requirements in the Code. While the current criteria allow the Board to determine that a certain requirement may not be applicable, this is a less flexible system than one under which less than all applicable criteria must be met. Also, the question of whether a requirement is applicable can itself become the main issue in a legal dispute. Regarding the question of precedent, we do not think the legal risk is materially different whether the Code requires an application to satisfy all six requirements or, for example, five of six. Under either approach, staff and the Board will still for each application analyze whether each criteria is satisfied. In a contested legal claim, litigants will look for and seek to use to their advantage inconsistencies in those analyses, irrespective of whether the criteria was one that had to be satisfied. For example, if the Code were amended to require five of six criteria be met and an application was turned down because it failed to meet the "minimum variance" and "no self -impose hardship" requirements, the applicant turned litigant would still seek to exploit any inconsistent application of both criteria in prior Board proceedings. Additionally, a requirement that an application satisfy less than all criteria flags the question of whether all criteria are of equal weight. For example, is a five -of -six standard equally acceptable when the one criteria not met is the "no self-imposed hardship" requirement as opposed to the "minimum variance" requirement. If some surveying is undertaken, we recommend looking at whether ordinances that have a less -than -all standard nonetheless require that certain criteria be met in all cases. A final comment is whether there is any benefit to greater flexibility in the execution of variance criteria so as to lessen the likelihood that difficult cases will be forced into litigation. Frankly, in my experience I have found that the difficult cases for boards of adjustment most often involve requests for an "after -the -fact" variance under circumstances where errors exist on both sides of the issue —for example, an erroneously issued permit with the problem compounded by incorrect construction or improper placement of the structure. While these cases can be frustrating for all parties participating in the Board hearing, I do not think these cases should be resolved through greater flexibility in the variance criteria. Rather, I think the variance criteria should remain focused on analysis of physical characteristics and the impact of the variance on