September 30, 2014
Utah Court of Appeals
August 21, 2014
2014 UT App 200 (Click for full text of Opinion)
This case arose from a proposed settlement of a boundary dispute. The parties own adjoining lots in a subdivision. A fence had been constructed about five feet from the actual lot line, increasing one lot while diminishing the other. The dispute became quite heated, and the parties wound up in lawsuit.
The defendants, who were the owners “losing” property because of the fence, offered to convey a five-foot strip of their lot in order to settle the suit. After the offer was made, however, the defendants discovered that the conveyance would cause their lot to drop below the minimum allowable lot size, creating an illegal (or noncomplying) lot. Before the offer was accepted, the defendants withdrew it, but the plaintiff’s accepted it anyway, and the district court concluded that the offer was valid despite the illegality, because the parties could seek a variance of the minimum lot size.
The Court of Appeals agreed, holding that even though the offer technically created an illegal lot, the problem could be solved by obtaining a variance. The Court reasoned that even though a variance was not contemplated at the time of the offer, the parties assumed responsibility to carry out whatever actions were necessary to complete the agreement. This included requesting and obtaining a variance.
The decision notes an affidavit from the affected City (Sandy City), stating that it “would grant a variance” unless the owners disagreed.
OPRO COMMENTARY: This decision presents two noteworthy issues: First, the plaintiffs presented evidence that the City had committed to granting a variance allowing the lot to be smaller than the minimum area. However, a variance may only be granted by an appeal authority, and only when all five of the “variance criteria” are established. (See “Variances“). It is improper for a city or county to commit to a variance without approval from its appeal authority.
Secondly, the City arguably should not be able to grant a variance in these circumstances. A variance is a mechanism that allows some deviation from the strict application of a zoning ordinance that is necessary due to special circumstances unique to the property. A variance should not be granted to allow a use that is otherwise illegal. In addition, a variance should not be granted if the hardship was self-imposed.
In this case, the Court of Appeals appears to condone a variance that would reduce the minimum lot size. This allows a use that is not legal under the local zoning ordinances, and should therefore not be allowed as a variance. In essence, the proposed variance amends the zoning ordinance, by allowing a smaller lot. That is not the function or purpose of a variance.