New York Court On Zoning Boards and Area Variance

Hat tip to Patricia E. Salkin, Professor, Government Law Center, Albany Law School for blogging about the Matter of Kenneth Russo, Appellant v. City of Albany Zoning Board et. al., Respondents (508996).  According to New York Supreme Court, Appellate Division, Third Judicial Department:

The law is well settled that local zoning boards have broad discretion in considering applications for variances, and that judicial review is limited to determining whether the action taken by the board was

  • illegal,
  • arbitrary or
  • an abuse of discretion.

Therefore, a zoning board’s determination will not be disturbed if it has a rational basis and is supported by substantial evidence in the record.  Furthermore, in determining whether to grant an area variance, a zoning board must weigh the benefit to the applicant against the detriment to the health, safety and welfare of the neighborhood or community if the variance is granted.

Area Variance and Duncan v Middlefield

This is a follow up to the post titled Solon Planning Commission Inconsistent With Granting Zoning Variances.  I was informed that McDonald’s USA LLC filed an administrative appeal in Cuyahoga County Court of Common Pleas against Solon City Council.  We are a fast food nation (the site is adjacent to Pizza Hut, Arby’s, Burger King, Dunkin Donuts and Boston Market fast food businesses and other restaurants) and a country of law.  McDonald’s is entitled to the appeal and the choice should be respected and welcomed.  The appeal does not come as a surprise and I believe that Solon Planning Commission members may have pragmatically factored the above par chance of McDonald’s winning the appeal into their favorable ruling.

Types of Zoning Variance

  1. Area Variance
  2. Use Variance

The type of zoning variance appeals that usually come before a Planning Commission or Board of Zoning Appeals is that of Area Variance.  This type of request is usually not controversial because the applicant does not request a change in the permitted use.  The applicant’s simple request is for a less restrictive zoning requirement related to height, lot size, yard size, setback, accessory structures etc.

A request for Use Variance is a different ball game because the request is for a modification to the structure/classification of the zoning code and no city, town or village will/should take this lightly.  In an use variance appeal, the applicant desires to use the property for an use that is prohibited by the zoning code.

Standard for Area Variance and Use Variance

The standard for area variance is practical difficulties.  Practical difficulties exist whenever an area zoning requirement unreasonably deprives the property owner of a permitted use of the property.  The standard for use variance is unnecessary hardship.  If a property owner will not be able to viably use the property, unless granted a variance, unnecessary hardship may be occurring.

In a letter to members of Solon Planning Commission and Mayor Susan Drucker, Bruce Rinker, attorney for McDonald’s presents several interesting points.  Here is a salient one:

City officials and McDonald’s are working with the constitutional framework which treats the permitting process as administrative and not legislative.  In other words, the task of both the Planning Commission and, thereafter, the Council is not to legislate a new law but to administer the existing law following constitutional principles.  Law encompasses local, state and federal.  Objectivity is essential.  By prescribing the zoning classification of this site, by controlling the public thoroughfares and the platting of lots abutting them, by historically, administering laws for all of the adjacent properties that have resulted in the current landscape, Solon has by legislation predetermined this landscape.  The legal task, now is to administer rationally.

Here is one more:

While the practical difficulties present “special considerations”, they may not be treated by public officials as the applicant’s “request for favors“.

“Administrative power and discretion may be and usually are vested in designated departments, boards or officials or in the municipal legislative body itself to grant, deny or revoke building permits.  However the authority vested in them cannot be a arbitrary decision in each case, uncontrolled by any general rule.  In other words, the discretion must be made subject to a standard or rule to operate uniformly in all cases…..9 McQuillan on Municipal Corporations (3 ed), 484, 26.203

Duncan v. Middlefield

In Ohio, a set of 7 guidelines are prescribed for officials and courts to employ in fairly and equitably considering how to gauge practical difficulties.  These are informally referred to as the Duncan Criteria or Duncan Factors → continue reading Area Variance and Duncan v Middlefield

U.S. Home Prices Are High On Government Hormones

Credit: Peter Schiff

Credit: Peter Schiff

 

 

 

 

 

 

The Real Estate Cartel

A cartel refers to a small group of producers of a good or service who agree to regulate supply in an effort to control or manipulate prices.  Larry MacDonald writes that according to Ned Goodman of Dundee Corp. the real estate industry is a

“monopoly, it’s a cartel, it’s an oligopoly,”

that derives its power by controlling access to the Multiple Listing Service.

A study by Stephen Brobeck and Patrick Woodall of Consumer Federation of America titled How The Rel Estate Cartel Harms Consumers and How Consumers Can Protect Themselves states the following about the real estate industry,

Begin Copy and Paste

Can across-the-board 6% or 7% commissions be justified?  We respond with a series of questions that suggest there is not one shred of a justification for this fixed price. → continue reading The Real Estate Cartel

Solon Planning Commission Inconsistent With Granting Zoning Variances

 

Solon Zoning Ordinance

Solon Zoning Ordinance Section 1288.02 Item 2 T

Recently, McDonald’s Corporation approached City of Solon Planning Commission with a proposed project at the intersection of SOM Center Road and Aurora Road and requested a number of zoning variances.  The project features included a $2 million investment,  a 4,000-square-foot building and a 20-year commitment.  Solon’s Zoning Ordinance, required that at least 81 parking spaces be provided to serve the proposed restaurant use.  As only 36 parking spaces were provided on the proposal, a 45 space parking variance was requested :!: .

The owner of the property, Visconsi Solon Land Company Limited was agreeable to dedicating 13 feet of their property for a potential future right turn land which would have improved the the congested, high traffic volume intersection.  The high traffic volume is considered more profitable to businesses and makes this location desirable.  This request was approved by a 3-2 vote after an interesting discussion that involved among others, Kevin Westbrooks of URS and Michael Hobbs of GPD Group.  Here is an extract from the minutes of November 9th meeting of the Solon Planning Commission  → continue reading Solon Planning Commission Inconsistent With Granting Zoning Variances

Dirty Home Appraisals

Real Estate Appraisal Guidelines

The Federal Reserve, the Office of the Comptroller of the Currency, the Federal Deposit Insurance Corp., the Office of Thrift Supervision and the National Credit Union Administration released the new guidelines for home appraisals.  A copy of the guidelines document is available for download from the News and Issuances tab of the Office of the Comptroller of the Currency website.

  • Lenders can exchange information with home appraisers, but they cannot directly or indirectly coerce, influence, or otherwise encourage an home appraiser or a person who performs an evaluation to misstate or misrepresent the value of the property.
  • Banks cannot tell the home appraiser of any expected or qualifying estimate of value.
  • Banks cannot specify a minimum value requirement for the property that is needed to approve the loan or as a condition of ordering the home appraisal.
  • Banks cannot tie a home appraiser’s compensation to loan approval.
  • Banks can’t blacklist a home appraiser if the home appraiser’s valuations fail to meet expected thresholds.

Some real estate brokerages own their title companies and they try to steer → continue reading Dirty Home Appraisals

High Voltage Transmission Lines in Solon Ohio

According to Norman Becker, author of Home Inspection Checklists, a study concluded that children exposed to an electromagnetic field were more likely to develop leukemia.   High voltage transmission lines near a house cause electromagnetic fields of concern as do local power distribution lines.

This incredible sight of home backyards adjacent to high voltage transmission lines may be observed in Preserve subdivision located in Solon Ohio.

High Voltage Transmission Lines

High Voltage Transmission Lines-Click to enlarge

Preserve Subdivision of Solon Ohio

Preserve Subdivision of Solon Ohio-Click to enlarge