In the absence of material evidence of facts necessary to justify a variance, the allowance of a variance is arbitrary, unwarranted, and subject to reversal by judicial review.
A property owner was notified that his property was in violation of the local zoning ordinance, which allowed a maximum of two dwelling units in that area. The property contained five dwelling units. The owner appealed the zoning administrator's decision to the Board of Zoning Appeals, which permitted him to retain the five units for as long as he owned the property. When the owner decided to sell the property, he petitioned the zoning administrator to remove the ownership condition so that another owner could maintain the five units. The administrator denied this request, and the owner appealed to the Board of Zoning Appeals, which removed the ownership condition. Nearby property owners filed a writ of certiorari challenging the decision. The chancery court vacated the decision and remanded the case to the Board of Zoning Appeals for further consideration. The owner appealed, and the appellate court affirmed the chancery court's decision.
May a variance for a zoning ordinance be properly granted for want of consideration of the lasting effects of the decision to grant the variance?
The Board of Zoning Appeals' decision was arbitrary because it only considered the legality of a condition of the landowner's variance. Removing the limitation that the condition only applied to the landowner created a permanent use variance without assuring the property met the proper zoning ordinances. The Board of Zoning Appeals was not authorized in granting a variance in which the only hardship to the owner in complying with the zoning regulations was pecuniary loss. The remand to the Board of Zoning Appeals, instead of declaring the variance void, was proper because the Board of Zoning Appeals had not considered relevant factors in the zoning ordinances in making a decision.