Commons v. Westwood Zoning Board of Adjustment

1
Commons v. Westwood Zoning Board of Adjustment

• 4 basic ways of putting flexibility into
  Euclidean zoning
• Variance
• Special exception
• Zone change
• Continuation of nonconforming uses
• Commons v. Westwood involves a request for a
  variance from the
• area requirement (min. of 7500 sq. ft. to build
  vs. 5190 sq. ft.)
• Minimum frontage requirement 75 requirement for
  30 foot lot

2
Commons v. Westwood Zoning Board of Adjustment,
cont.

• Recall SSZEA 7 provides that a Board of
  Adjustment may be appointed to (inter alia) grant
  variances
• where, owing to special conditions, a literal
  enforcementwill result in unnecessary hardship
• PROVIDED
• The variance will not be contrary to the public
  interest what Commons v. Westwood calls the
  negative criteria.

3
Commons v. Westwood Zoning Board of Adjustment
cont.

• Property in Q was a vacant lot the only
  undeveloped property in the neighborhood.
  (Neighborhood has one and two-family dwellings.)
  ?s and their predecessors in the title have
  owned the property since 1927. The ordinance was
  adopted in 1933, with no minimum frontage or
  minimum area requirements. In 1947, an amendment
  to the ordinance adopted minimum frontage and
  minimum area requirements. Fewer than 25 of the
  homes in the area satisfied the new minimum
  frontage requirement. In over 30 years, only 2
  more homes have been built, one of them not
  meeting the minimum frontage requirement.

4
Commons v. Westwood Zoning Board of Adjustment
cont.

• Zoning the minimum frontage to build is 75
  feet. The lot in question is only 30 feet wide.
  ? wants to put up a house that is 19 feet wide.
• Q Why did the neighbors appose the ?s
  application for a variance?
• House on a 30 foot lot would be aesthetically
  displeasing
• Proposed house would differ from scheme because
  garage would be in front
• Proposed house would impair the value of property
  in the are
• Concern about privacy spillover effects noise
  and trespassing.

5
Commons v. Westwood Zoning Board of Adjustment
cont.

• Q What legitimate goals are being served (in
  the eyes of the neighbors?)
• Q Why did the court reverse the denial of the
  variance/
• Unnecessary hardship
• The negative criteria
• Undue Hardship
• Q The test for undue hardship?
• When the regulation renders the property
  unusable for any purpose, the analysis calls for
  further inquiries which may lead to a conclusion
  that the property owner would suffer an undue
  hardship.

6
Commons v. Westwood Zoning Board of Adjustment
cont.

• Q So, only if the property is unusable for any
  purpose, do you look further?
• If you look further, look to
• The origin of the existing situation. Was the
  hardship self-inflicted? Ex Did the owner of a
  conforming lot convey away a portion of that lot
  leaving herself with a nonconforming lot?
• Has the owner attempted to bring the lot into
  compliance or end the unusability? In this case
• the owner could have offered to buy additional
  properties from the neighbors or
• The owner could have offered to sell some of the
  land (or all of the land) to the neighbors.

7
Commons v. Westwood Zoning Board of Adjustment
cont.

• The Negative Criteria
• Assume that the test is the one in SSZEA
• The variance cannot be issued if it would be
  contrary to the public interest.
• Q Who is the public?

8
Commons v. Westwood Zoning Board of Adjustment
cont.

• Avoid a Taking
• Complete denial of use,
• BUT
• Variance would be contrary to public interest.
• ?
• Taking if denial.

9
Commons v. Westwood Zoning Board of Adjustment
cont.

• Ct. suggests possible remedy
• Deny the variance on the condition that the
  neighbors purchase the land for a fair price.
  The restrictive covenant and Spur solution.
• Q How do you determine price?
• on the assumption that the variance has been
  granted.
• Recall Nectow.

10
Commons v. Westwood Zoning Board of Adjustment
cont.

• Reviewing the decisions of Board of Adjustment
• Undue hardship?
• Record does not support conclusion of no evidence
  of undue hardship.
• Negative criteria?
• Not sufficient for Board to issue the conclusive
  statement that the variance would substantially
  impair the intent and purpose of the zone plan
  and ordinance.
• Board must explain reasons for this conclusion.

11
Commons v. Westwood Zoning Board of Adjustment
cont.

• Note size of the resulting house in and of
  itself would not justify a denial of a variance.
  
• No health goal
• No safety goal
• Possibly If character of neighborhood was
  affected both as to aesthetics and value, then a
  denial may be appropriate.