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