Donald J. Weidner1

Commons v. Westwood Zoning Board of Adjustment

• 4 basic ways of putting flexibility into Euclidean zoning:– Variance– Special exception– Zone change– Continuation of nonconforming uses

• Commons v. Westwood involves a request for a variance from the – area requirement (min. of 7500 sq. ft. to build [vs. 5190 sq.

ft.])– Minimum frontage requirement [75’ requirement for 30 foot

lot]

Donald J. Weidner2

Commons v. Westwood Zoning Board of Adjustment, con’t.

• Recall SSZEA §7 provides that a Board of Adjustment may be appointed to (inter alia) grant variances:– “where, owing to special conditions, a literal

enforcement…will result in unnecessary hardship”

PROVIDED– The variance “will not be contrary to the public

interest” [what Commons v. Westwood calls “the negative criteria].

Donald J. Weidner3

Commons v. Westwood Zoning Board of Adjustment con’t.

Property in Q was a vacant lot – the only undeveloped property in the neighborhood. (Neighborhood has one and two-family dwellings.) Π’s and their predecessors in the title have owned the property since 1927. The ordinance was adopted in 1933, with no minimum frontage or minimum area requirements. In 1947, an amendment to the ordinance adopted minimum frontage and minimum area requirements. Fewer than 25% of the homes in the area satisfied the new minimum frontage requirement. In over 30 years, only 2 more homes have been built, one of them not meeting the minimum frontage requirement.

Donald J. Weidner4

Commons v. Westwood Zoning Board of Adjustment con’t.

Zoning: the minimum frontage to build is 75 feet. The lot in question is only 30 feet wide. Π wants to put up a house that is 19 feet wide.Q: Why did the neighbors appose the Π’s application for a variance?

– House on a 30 foot lot would be aesthetically displeasing;– Proposed house would differ from scheme because garage

would be in front;– Proposed house would impair the value of property in the

are;– Concern about privacy – spillover effects – noise and

trespassing.

Donald J. Weidner5

Commons v. Westwood Zoning Board of Adjustment con’t.

• Q: What legitimate goals are being served (in the eyes of the neighbors?)

• Q: Why did the court reverse the denial of the variance/– Unnecessary hardship– The negative criteria

Undue Hardship• Q: The test for “undue hardship?”

– “When the regulation renders the property unusable for any purpose, the analysis calls for further inquiries which may lead to a conclusion that the property owner would suffer an undue hardship.”

Donald J. Weidner6

Commons v. Westwood Zoning Board of Adjustment con’t.

• Q: So, only if the property is “unusable for any purpose,” do you look further?

• If you look further, look to:– The origin of the existing situation. Was the hardship self-

inflicted? Ex: Did the owner of a conforming lot convey away a portion of that lot leaving herself with a nonconforming lot?

– Has the owner attempted to bring the lot into compliance or end the unusability? In this case:the owner could have offered to buy additional properties from the neighbors; or

The owner could have offered to sell some of the land (or all of the land) to the neighbors.

Donald J. Weidner7

Commons v. Westwood Zoning Board of Adjustment con’t.

The Negative Criteria

• Assume that the test is the one in SSZEA:– The variance cannot be issued if it would be

“contrary to the public interest.”

• Q: Who is the public?

Donald J. Weidner8

Commons v. Westwood Zoning Board of Adjustment con’t.

Avoid a Taking

• Complete denial of use,

BUT

• Variance would be contrary to public interest.

• Taking if denial.

Donald J. Weidner9

Commons v. Westwood Zoning Board of Adjustment con’t.

• Ct. suggests possible remedy:– Deny the variance on the condition that the

neighbors purchase the land for a fair price. [The restrictive covenant and Spur solution].

• Q: How do you determine price?– “on the assumption that the variance has

been granted.”

• Recall Nectow.

Donald J. Weidner10

Commons v. Westwood Zoning Board of Adjustment con’t.

• Reviewing the decisions of Board of Adjustment:– Undue hardship?

• Record does not support conclusion of no evidence of undue hardship.

– Negative criteria?• Not sufficient for Board to issue “the conclusive statement

that the variance would substantially impair the intent and purpose of the zone plan and ordinance.”

– Board must explain reasons for this conclusion.

Donald J. Weidner11

Commons v. Westwood Zoning Board of Adjustment con’t.

• Note: size of the resulting house “in and of itself would not justify a denial of a variance.” – No health goal– No safety goal

• Possibly: If character of neighborhood was affected both as to aesthetics and value, then a denial may be appropriate.