Editorials

Commentary: It was a bad decision

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By Gary P. Custer

Tuesday, November 29, -0001

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Unfortunately, one of those rare instances occurred Sept. 26 when the ZBA granted a use variance to allow offices in a residential neighborhood.

The building, 523 East St., was a residence until Nov. 13, 1962 when a specific temporary use permit was issued to operate a florist and gift shop in the home for 10 years. According to the planning commission meeting minutes, the owner was to live in the building and not change the exterior. A request to rezone the property from residential to commercial had been denied because "it would be spot zoning that would have to be corrected later on."

Bert Smith, the current owner, bought the business in 1964 and the property in 1969. The ZBA granted a use variance for a florist and gift shop May 27, 1969 that expired in 1989. Since then the flower shop has moved and in 1993 the property was rezoned to two-family residential. Recently a foundation offered to buy the property if a variance was granted to allow it to be used for offices.

While all of this was going on, the neighborhood around the building was changing. Unlike similar neighborhoods near downtown, Central Park was becoming more residential.

In the late 1960s it was designated an urban renewal district. Deteriorated buildings were removed and those that remained were repaired. Properties used for commercial and institutional uses were converted to residential uses and residents successfully fought all attempts by institutions and businesses to convert residential properties for non-residential uses. In 1993, the neighborhood was rezoned from C-1 (multi-family) to the less intense B.

The ZBA ignored all of these facts Sept. 26. More importantly, its decision was contrary to the legal restrictions governing its exercise of power.

To grant a variance the board must find that there is "practical difficulty or unnecessary hardship" in using the property as allowed by law. Specifically, in order to be granted a use variance, an applicant must prove that all the following apply to the property
• The property cannot be put to a reasonable use without the variance, or compliance with the ordinance is unnecessarily burdensome.

• The problem requiring the variance is unique to the property and not shared by properties in the same zone.

• The problem is not self-inflicted.

• The variance is the minimum necessary to permit reasonable use of property.

• The variance, if granted, would not compromise the public health, safety and welfare.

The applicant did not prove that any of the five conditions exist.

The building can be put to a reasonable use without the variance. It was used as a residence before and during the life of the temporary use variances. Granted, the applicant will get a lot more money for the property because the use variance has been granted, but that is not a factor. All home owners in the neighborhood could get a lot more money if they could get a variance to allow their property to be used for offices. Even if getting more money was a factor the applicant would fail the second condition because the problem would not be "unique to the property and not shared by properties in the same zone."

If there is any "hardship" it is self-imposed. If the building needs expensive repairs it is because the applicant failed to maintain the property. Further, the applicant knew that there was a specific limit on how long his business could operate in the house. Eventually, it had to be restored to residential use.

Since the building can be used as a residence the variance is not "the minimum necessary to permit reasonable use of property."

Finally, if the earlier actions by the planning commission, zoning board of appeals and city council (refusing to rezone for commercial use, granting a specific temporary use permit for a flower and gift shop, designating the property for residential use in the urban renewal plan and rezoning the property to B) did not compromise the public health, safety and welfare, then the applicant probably fails to meet even the last of the five criteria.

So what was proven?

The applicant proved that you can get

more money for property in a good residential neighborhood if you can get a variance to allow it to be used for offices.

The commercial real estate broker proved that he could make a large commission by dealing in residential property.

The foundation proved it can get a lot of support from "movers and shakers" who do

not live in the neighborhood.

The ZBA proved that it can make a bad decision.

Neighborhood residents proved that …

GPC

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