Matthew v. Smith

• Decision Date: 25 March 1986
• Docket Number: No. 67396,67396
• Citation: 707 S.W.2d 411
• Parties: Jon MATTHEW, Appellant, v. Elton SMITH, et al., Members of the Board of Zoning Adjustment, etc., James Brandt and Susan Brandt, Respondents.
• Court: Missouri Supreme Court

Page 411

707 S.W.2d 411

Jon MATTHEW, Appellant, v. Elton SMITH, et al., Members of the Board of Zoning Adjustment, etc., James Brandt and Susan Brandt Respondents.

No. 67396.

Supreme Court of Missouri,

En Banc.

March 25, 1986.

Jon A. Matthew, North Kansas City, for appellant.

Thomas E. Barzee, Jr., S. Preston Williams, North Kansas City, for respondents.

WELLIVER, Judge.

This is an appeal from a circuit court judgment affirming the Board of Zoning Adjustment's decision to grant Jim and Susan Brandt a variance. The Brandts purchased a residential lot containing two separate houses upon a tract of land zoned for a single-family use. The court of appeals reversed the circuit court judgment, and the case was then certified to this Court by a dissenting judge. We reverse and remand.

The Brandts own a tract of land comprising one and one-half plotted lots. When they purchased the property in March of 1980, there already were two houses on the land, one toward the front of Erie Street and one in the rear. Each of the buildings is occupied by one residential family as tenants of the Brandts. The two houses apparently have been used as separate residences for the past thirty years, with only intermittent vacancies. The property is zoned for Single Family Residences. At the suggestion of a city official, the Brandts applied for a variance which would allow them to rent both houses with a single family in each house. After some delay, including two hearings by the Board of Zoning Adjustment of Kansas City, the Board granted the application. Appellant, Jon Matthew, a neighboring landowner challenged the grant of the variance and sought a petition for certiorari from the Board's action. § 89.110, RSMo 1978. The circuit court affirmed the Board's order; on appeal, the court of appeals held that the Board was without authority to grant the requested variance. A dissenting judge certified the case to this Court.

Prompted by the persuasive opinions of both the majority of the Western District and the dissenting judge who certified the case to this Court, we believe that a review of the applicable law is warranted.

Zoning law developed during the early part of this century as a mechanism for channeling growth. ¹ Zoning acts authorize municipalities to pass ordinances, which designate the boundaries for districts and which define the allowable land uses in such districts. Board of Zoning Adjustments (Appeals) were created to review specific applications of the zoning ordinances.

Under most zoning acts, these boards have the authority to grant variances from the strict letter of the zoning ordinance. The variance procedure "fulfil[s] a sort of 'escape hatch' or 'safety valve' function for individual landowners who would suffer special hardship from the literal application of the ... zoning ordinance." City & Borough of Juneau v. Thibodeau, 595 P.2d 626, 633 (Alaska 1979). See also A. Rathkopf, 3 The Law of Zoning and Planning § 38 (1979); N. Williams, 5 American Planning Law § 129.05 (1985); Greenawalt v. Zoning Board of Adj. of Davenport, 345 N.W.2d 537, 541 (Iowa 1984); Ouimette v. City of Somersworth, 119 N.H. 292, 402 A.2d 159, 161 (1979); Otto v. Steinhilber, 282 N.Y. 71, 24 N.E.2d 851, 852 (1939); Packer v. Hornsby, 221 Va. 117, 267 S.E.2d 140, 142 (1980). It is often said that "[t]he variance provides an administrative alternative for individual relief that can avoid the damage that can occur to a zoning ordinance as a result of as applied taking litigation." D. Mandelker, Land Use Law, at 169 (1982). The general rule is that the authority to grant a variance should be exercised sparingly and only under exceptional circumstances. See e.g., A. Rathkopf, supra, § 37.06, at 69; Ivancovich v. City of Tucson Bd. of Zoning Adj., 22 Ariz.App. 530, 529 P.2d 242, 247 (1974); Lovely v. Zoning Bd. of Appeals of City of Presque Isle, 259 A.2d 666 (Me.1969); Brown v. Beuc, 384 S.W.2d 845, 851 (Mo.App.1964); Kensington South v. Zoning Bd. of Adj., 80 Pa.Cmwlth. 546, 471 A.2d 1317, 1319 (1984).

Both the majority of courts and the commentators recognize two types of variances: an area (nonuse) variance and a use variance.

The two types of variances with which cases are customarily concerned are "use" variances and "nonuse variances." The latter consist mostly of variances of bulk restrictions, of area, height, density, setback, side line restrictions, and restrictions coverning miscellaneous subjects, including the right to enlarge nonconforming uses or to alter nonconforming structures.

As the name indicates, a use variance is one which permits a use other than one of those prescribed by the zoning ordinance in the particular district; it permits a use which the ordinance prohibits. A nonuse variance authorizes deviations from restrictions which relate to a permitted use, rather than limitations on the use itself, that is, restrictions on the bulk of buildings, or relating to their height, size, and extent of lot coverage, or minimum habitable area therein, or on the placement of buildings and structures on the lot with respect to required yards. Variances made necessary by the physical characteristics of the lot itself are nonuse variances of a kind commonly termed "area variances."

A. Rathkopf, supra, § 38.01. Many zoning acts or ordinances expressly distinguish between the two types of variances. N. Williams, supra, § 129.07, at 17. When the distinction is not statutory, "the courts have always distinguished use from area variances." D. Mandelker, Land Use Law, at 167. (1982). Some jurisdictions, whether by express statutory directive or by court interpretation, do not permit the grant of a use variance. D. Mandelker, Land Use Law, at 168; N. Williams, supra, § 132, at 31. E.G., Wells v. Zoning Bd. of Appeals, 180 Conn. 193, 429 A.2d 467, 469-70 (1980).

Past decisions in this State have placed Missouri within those jurisdictions not permitting a use variance. ² This line of cases would suggest that the Brandts are not entitled to the variance. They seek a variance to use the property in a manner not permitted under the permissible uses established by the ordinance. The ordinance clearly permits only the use of the property for a single family residence. § 8.A(1) North Kansas City Zoning Ordinance. The applicant is not seeking a variance from the area and yard restrictions which are no doubt violated because of the existence of the second residence. § 8.B-G North Kansas City Zoning Ordinance. Such an area variance is not necessary because the applicant has a permissible nonconforming structure under the ordinance. § 5.B North Kansas City Zoning Ordinance.

Commentators, however, have questioned the rationale underlying the Missouri cases. See e.g., A. Rathkopf, supra, § 37.02, at 25 n. 4; N. Williams, supra § 132.02, at 33-4. These past cases, beginning with State ex rel. Nigro v. Kansas City, 325 Mo. 95, 27 S.W.2d 1030 (Mo. banc 1930), are based upon the premise that the granting of a use variance would be an unconstitutional delegation of power to the Board to amend the ordinance. See generally Mandelker, "Delegation of Power and Function In Zoning Administration," 1963 Wash. U.L.Q. 60, 68-71. This view has long since been repudiated by most jurisdictions, and it is contrary to the express language of § 89.090, RSMo 1978, which grants the Board the "power to vary or modify the application of any of the regulations or provisions of such ordinance relating to the use, construction or alteration of buildings or structures, or the use of land" (emphasis added). We, therefore, hold that under the proper circumstances an applicant may obtain a use variance.

Section 89.090, RSMo 1978 delegates to the Board of Adjustment the power to grant a variance when the applicant establishes "practical difficulties or unnecessary hardship in the way of carrying out the strict letter of such ordinance ... so that the spirit of the ordinance shall be observed, public safety and welfare secured and substantial justice done." Missouri lifted this language out of the 1920 amendment to the General City Law of New York, which provided:

Where there are practical difficulties in the way of carrying out the strict letter of such ordinance, the board of zoning appeals shall have the power to vary or modify the application of any of the regulations or provisions of such ordinance relating to the use, construction or alteration of buildings or structures, or the use of land, so that the spirit of the ordinance shall be observed, public safety and welfare secured and substantial justice done.

The New York statute served as the first general model for other jurisdictions; soon thereafter, however, many states adopted the Standard Zoning Act that had been prepared in the early 1920's under the aegis of the United States Department of Commerce. Section 7 of the Act provides:

To authorize upon appeal in specific cases such variance from the terms of the ordinance as will not be contrary to the public interest, where, owing to special conditions, a literal enforcement of the provisions of the ordinance will result in unnecessary hardship, and so that the spirit of the ordinance shall be observed and substantial justice done.

See N. Williams, supra, § 130.01, at 21. The standards set forth in these two models, however, only became meaningful after being interpreted by the courts. ³ See N. Williams, supra, § 131.02, at 28.

Almost all jurisdictions embellished the general concepts of "unnecessary hardship" or "practical difficulties" by further defining the conditions an applicant must satisfy before obtaining a variance. Quite often, local zoning ordinances "summarize that case law by spelling out the same more specific standards in the ordinance, for the convenience of everybody." N. Williams, supra, § 131.02, at 28. The North Kansas City Ordinance, for example, provides in part:

Section 27. Board of Adjustment.

A. Purpose. The board of...