Matthew v. Smith - 707 S.W.2d 411 (Mo. 1986)

Rule:

Mo. Rev. Stat. § 89.090 delegates to the zoning 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.

Facts:

Respondent landowner purchased a residential lot containing two separate houses upon a tract of land zoned for single-family use. Respondent landowner applied for a variance which would allow them to rent both houses with a single family in each house. After two hearings, respondent board granted the application. Appellant neighboring landowner challenged the grant of the variance. The lower court affirmed respondent board's order. The court of appeals held that respondent board was without authority to grant the requested variance. 

Issue:

May the respondent landowner obtain a use of variance?

Answer:

No.

Conclusion:

The court held that there was not sufficient evidence to show respondent landowner suffered any unnecessary hardship that would entitle them to a variance. The court noted that the only evidence in the record was the conclusory opinion of respondent landowner that they would be deprived of a reasonable return if not allowed to rent both houses. The court ordered that the cause be remanded back to respondent board with directions that respondent landowner be permitted to present evidence warranting the grant of a variance and to amend their application to claim a nonconforming use of the premises.