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Commons v. Westwood Zoning Board of Adjustment

    Brief Fact Summary. Landowners sought a variance to the zoning ordinance so they could sell their lot.

    Synopsis of Rule of Law. A variance may be granted where by reason of the extraordinary and exceptional situation of the property, the strict application of a zoning ordinance would result in exceptional and undue hardship upon the developer of the property.

    Facts. A vacant lot is the only undeveloped property in a residential neighborhood, which consists of one and two family dwellings. Gordon and Helen Commons (Plaintiffs) are the owners. A builder contracted to buy the lot on the condition that he could construct a one-family residence on the lot. A variance from the town’s zoning ordinance was necessary because the lot was undersized. The board of adjustment denied the variance because they found the application failed to demonstrate any evidence to establish hardship and that the granting of the variance would substantially impair the intent and purpose of the zoning plan of the town.

    Issue. Does an undue hardship sufficient to grant a variance from a zoning ordinance exist when the hardship is unique to a particular lot in the neighborhood?

    Held. Yes.
    A board of adjustment shall have power to grant a variance when by reason of the narrowness of the land or other extraordinary and exceptional situation of the property, the strict application of a zoning ordinance would result in exceptional and undue hardship upon the developer of the property.
    An undue hardship involves the notion that no effective use can be made of the property if the variance is denied.
    If the property owner or predecessors in interest creates the nonconforming condition, then the hardship may be deemed to be self-imposed.
    In determining undue hardship, the efforts of a property owner to bring the property into compliance with the ordinance’s specifications will be examined. If the owner is willing to sell at a fair and reasonable price and the adjoining property owners refuse to make a reasonable offer, then an undue hardship would exist.
    When an undue hardship exists, the grant of the variance must not substantially impinge upon the public good and the intent and purpose of the zoning plan and ordinance. This requires looking at the extent to which the variance will impact the character of the neighborhood.
    Here, ownership of the lot existed before the ordinance was made. An attempt was made to buy additional property to bring the lot into conformity. This is sufficient to find an undue hardship.
    The proposed house might be smaller than the other houses in the neighborhood, but that alone is not enough to justify the denial of a variance.

    Discussion. A variance is a way for a landowner to escape a specific zoning ordinance. This is granted if a land regulation would cause an undue hardship to a particular landowner because of his unique circumstances. But, the variance must still allow for the substantial purpose of the land regulation to prevail, otherwise the zoning ordinance would be ineffective.


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