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Property owners who live in municipalities are subject to zoning codes and other ordinances that regulate, among other things, the kinds of activities which are acceptable on particular lots, the height of buildings, the amount of space structures may occupy, and the location of buildings on the lots.  However, certain lots make it particularly difficult for property owners to comply with these regulations due to their exceptional shape, narrowness, shallowness, topography or other extraordinary circumstances.  In these situations, municipalities generally have procedures in place for property owners to apply to a Board of Adjustment for variances from the lot restrictions.

After a Board of Adjustment has made a decision to grant or deny a request for a variance, Missouri courts must give deference to that decision.  In reviewing a decision by a Board of Adjustment, a court is limited to determining whether the Board’s decision is supported by competent and substantial evidence upon the whole record, or whether the decision is arbitrary, capricious, unreasonable, unlawful, or in excess of the Board’s jurisdiction.  Moreover, the court must view the evidence and reasonable inferences therefrom in a light most favorable to the decision.

On March 20, 2012, the Missouri Court of Appeals reiterated the foregoing principles, but made it clear that a Board of Adjustment exceeds its authority by granting a variance to relieve mere inconvenience to the property owner.  In Board of Alderman of the City of Cassville v. Board of Adjustment of the City of Cassville, et al., the property owner applied for a non-use variance to allow him to keep a carport that he built which infringed upon the five foot side yard setback requirement.  During the hearing, the property owner argued in part that removing the carport would create a hardship for his daughter and granddaughter because they would have to “get out in the rain and snow.”  After the hearing, the Board of Adjustment granted a variance for a property owner, finding that the lot was unique in size and that failure to grant the variance would cause the property owner unnecessary hardship.  The Missouri Court of Appeals reversed the Board’s decision both as to the uniqueness of the property and the hardship.

In its decision, the Missouri Court of Appeals opined that the property owner “presented no evidence that the infringement was due to exceptional narrowness, shallowness, or the shape of his property, or showed exceptional topographical conditions or other exceptional circumstances that prohibit him from using his property in the same manner as the other residents in his zoning district. . . .”  The court further stated that “the attributes of his property do not create the uniqueness, but his attempted use makes his property unique.”  Accordingly, the court held that the Board of Adjustment’s decision was not supported by competent and substantial evidence as to the uniqueness of the lot.

With regard to whether the property owner would suffer unnecessary hardship, the Court of Appeals noted that a person seeking a non-use variance must demonstrate that, as a practical matter, the property cannot be used for a permitted used without coming into conflict with the restrictions contained in the ordinances.  The court opined that the phrase “practical difficulties or undue hardships” as that term is used in variance ordinances does not refer to conditions personal to the landowner in question, but rather refers to the conditions especially affecting the lot in question and must be different from that suffered throughout the zone or neighborhood.  With respect to the property owner at issue, the Court of Appeals held that subjecting individuals to rain and snow “is nothing more than merely an occasional inconvenience.”  And “[l]egislation granting relief by way of variances to zoning codes is not intended to relieve mere occasional inconvenience.”  As such, the court held that the decision of the Board of Adjustment was arbitrary, capricious, unreasonable and unlawful.