recognizing that “[although all the requirements must be satisfied, it is generally held that unnecessary hardship is the principal basis on which a variance is granted” (quotation and brackets omitted)
How later courts described this case
- recognizing that “[although all the requirements must be satisfied, it is generally held that unnecessary hardship is the principal basis on which a variance is granted” (quotation and brackets omitted)
- ‘When the distinction is not statutory, the courts have always distinguished use from area variances.” (Quotation omitted.)
- adopting the New York approach and holding area variances may be granted upon a "slightly less rigorous" standard of "practical difficulties"
- to obtain a use variance an applicant must demonstrate an unnecessary hardship, but to obtain an area variance an applicant must establish the existence of conditions slightly less rigorous than unnecessary hardship
Written by the judges who cited it.
The opinion
BLACKMAR, Judge,
concurring.
The property owner has laid the foundation for the grant of a variance by showing that two separate houses were located on a single lot at the time the zoning ordinance was adopted. There would be a substantial waste if habitable structures were required to be torn down. This showing should permit the Board to find, in its discretion, after hearing all evidence, that the tests of “unnecessary hardship” and “practical difficulties” are met.
Rate of return is an important consideration. Although initial cost may not be a controlling circumstance in determining the base from which reasonable return is to be calculated, it is a starting point. The Board was plainly wrong in denying the plaintiff the right to inquire about the initial cost. This error taints the hearing, and the order based on it cannot stand.
I concur, therefore, in the judgment of reversal and remand to the Board.