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Home My WebLink About1983-01-04 Support Documentation Town Council Work Session.- ~ ,--,. ~ ,~*,,,,y ~o~~~~ o~ ~oii ~~~ box 100 vait, Colorado 81657 (303) 4765613 ITEI`J~ N0. ~ ~Z ~. DATE: ~- y - ~,~ ... office of the town attorney October 3, 1978 T0: To-,~n Council FROM: Larry Rider, To-,-n Attorney SUBJECT:. Variances and the Hardship Rule The Council has been supplied with a memorandum on variances dated April 29, 197b. A .copy of that memorandum is attached. As discussed in that memorandum, t}re general rule is that "hardship" is a necessary criteria for the granting of variances. An example of a hardship that the Colorado Supreme Court has considered i.as the case of Board v. Handley. In that case a building was built for commercial purposes and then the zon- 'y,~;ng restrictions were changed ~,hich forbade new business uses. The Court found•that a variance should be granted because the building could only have been used for a purpose for ~,~hich.it was not suited under the zoning. As a result thereof "its value (r,ould have been) depreciated to such an extent as to constitute an invasion of individual property rights ." In the case of Johnson v._B_oard, the Court was faced with a topography problem of the site_ The Court found that because. of the topography of the land, the o~,~ner was faced with "peculiar and exceptional practical dif- ficulties" as well as "exceptional. and undue hardship upon him as the owner . of the land." The above-stated hardship cases seem to be rather obvious and the real question comes down to how do you translate those kinds of hard- ships to floor area cases. Tradi.tional.ly, variances are broken doti.Tn into two categories, the first "physicll variances" and the second "use variances." There has cone to be considered 'a third area that seems to straddle both which is knoti,•n as "area variances." It includes such thinns as setbacks, frontage requirements, height limitations, lot-size restrictions, density regu]ations, and floor area regulations. A case out of 'N'ebraska described the differ- ence bet~.•een "use" and an "area" variance and noted the practical signifi- cance of the distinction. The Court stated a "use variance is one which permits a use other than that prescribed h}' the zoning ordinance, whereas an area variance }ias no relation to charrne of use. It is primarily a grant to erect, alter, or use a strrrcti~re for a permitted use in a manner other .. s`, htemoranduin °° Town Council October 3, 1978 Page 2 .,. than that prescribed by the ordinance. Use variances are customarily concerned with hardship, while area variances are more concerned with _ practical difficulties." For example, a use variance is granted where the hardship would preclude the land from yielding a reasonable return if used only in accordance with the use restrictions of the ordinance. 'The vari- _ ance is necessary to avoid confiscatory operation of the ordinance, while area variances are concerned with practical difficulties. The Court speci- fically stated that area variances should be granted only if in harmony with the spirit and intent of the zoning regulations and only in such a manner as to grant relief without substantial injury to the public health, safety and welfare. In other words, the Courts have looked at area vari- ances more in terms of whether they threaten adjacent land with incompati- ble uses or create a hazard which will change the character of a neighbor- hood. Generally, the area. variance opinions reflect a practical approach to the problem. The following are some of the things considered by the Courts in granting area variances: . (a) ?What is the size of the deviation that is sought, and what probable effect will it have on the neighborhood? ~'}' (b) Is the requested variance in the public interest, i.e., is it a good faith attempt to relieve traffic congestion in a given area? tc) The applicant's argument that a more profitable use could be made of the land if the variance is granted has been held to be insuf- ficient to establish practical difficulties or otherwise to :arrant the granting of an area variance. - (d) The applicant must show that he•is more than inconvenienced by the restrictions and that if his onl}~ proof is his inconvenience, the variance should not be granted. As an example of these cases, the Court has held that the shoitiing that redrafting of plans is not a sufficient reason to rant an area variance, nor is _~oi,~.ng that a ore erable al- ternative could be obtaine y the variance. 't'he variance may be denied where the app scant is prevented by the regulations from building a struc- ture as large as he would like, provided he can build one of reasonable size. No basis for a variance exists where an applicant shows merely that a more economical improvement could be built if the variance were granted. (e) The Courts have overturned variances t}tat have been granted solely to relieve a problem that is personal to the applicant rather than one affecting the lot in question. (f) As with traditional variance cases, practical difficulties relating to the size or shape of the lot have been upheld as reasons for ~,rant:ng area variances. ,~ ~lcmorandum Town Council October 3, 1978 Page 3 .~ (g) Of course, practical difficulties created by the applicant's or his .agent's negligence, or that are otherwise self-created are not the • grounds fox granting a variance. (h) Consistently the Courts have held that variances, whether they be a use or an area variance, can be granted only if the hardship or practical difficulty relates crniquely to the applicant's property and is not characteristic of all or other lots of similar size. Anderson, in his treatise "American Law of Zoning" summarized area variances as follows: "In general, the area variance opinions reflect a practical approach to t}le problem. The Courts appear to consider the size of the deviation that is sought, ' and to ~,eigh its probably effect on the neighborhood against the harm ti,~hich will be suffered by the appli- cant if the variance is refused. Usually, nothing. is, said about the inabilit of the o~,~ner to derive a • reasona le return from his land unless tTie variance is gran e , ~':'cd ~ . d .~'~~ § 25.166 ~ MUNICIPAL CO}tl'~RATIONS view cf Newport, 99 R1 23, 205 A2d 135; Bernstein .v. 7..oning Board of Review of City of Fast Providence, 99 RI 494, 209 .A2d 52 (power to establish available ex- ceptions not ..delegable to .board of re- view); Cole v. Zoning Board of Review of 'East Providence, 94 RI 265,.T'19 A2d 846; Paterson v. Zoning Board of Review of Town of Fast Providence, 80 RI 494, 98 A2d 847 (must not exceed authority granted in ordinance); Abbott v. Zoning Board of Review of ~4'arwick, 78 RI 84, ?9 A2d 620. Texas. Swain v. Board of Adjustment of University Park (Tex Civ App), 433 SW2d 727. a Florida. Dlayflower Property, Inc. v. Fort Lauderdale tFla App), 137 Sold 849, citing McQuillin text. Indiana. O'Connor v. Overall Laun- dry, 98 Ind App 29, 183 NE 134. Massachusetts. Coolidge v. Zoning Board of Appeals of Framingham, 343 11lass 742, 180 NE2d 670 (statutory crite- ria for variance must be found as facts). New Jersey. Potts v. Board of Adjust- ment of Borough.of Princeton, 133 NJL 230, 43 A2d 850, 853. Ohio. Appeal of Clements, 2 Ohio App2d 201, 207 NE2d 573, quoting n4c- Quillin Text. Pennsylvania. Taylor v. Moore, 303 Pa 469, 154 A 799. Rhode Island. De Stefanis v. Zoning Board of Review of Town of North Provi- Bence, fi4 RI 343, 124 A2d 544. ~ Connecticut. Powers v. t ,mmon Council of City of Danbury, 154 Conn ,156, 222 A2d 337 (special permit). Illinois. Speroni v. Board of Appeals of Sterling, 368 Ill 568, 15 NE2d 302. Louisiana. McCauley v. Albert E. Briede & Son, Inc., 231 La 36, 90 Sold 78, quoting McQuillin text. 496 New York. Concordia Cullc•giate In- stitute v. Miller, 3U1 NY 189, 93 NE2d 632. Ohio. Appeal of Clements. 2 Ohio App2d 20I, 207 N'E2d 573, quoting >\Ic. Quillin text. Pennsylvania. In re Application of Phi Lambda Theta House .4ss'n, 400 pa 60, 161 A2d 144 (absence of signs, guides posts, standards ir. ordinance prevented grant of any except ion I; Dooling's \'l'indv Hill, Inc. v. Zoning Board of Adjustment of Springfield Tp., 371 Pa 290, 89 A2d 505. Texas. Texas Consol. Theatres v, pit_ tillo (Tex Civ App), 204 S\i'2d 396. s >•Saryland. Jack Lewis, Inc. v. '~1av- or RCity Council of Baltimore, 16.9 Dtd 146,164 A 220, app dismd 290 US 585, 78 L Ed 517, 54 S, Ct 56. s Connecticut. Devaney v. Board of Zoning Appeals of New Haven, 132 Conn 537, 45 A2d 828, 529. Illinois. ~'Velton v. Hamilton, 394 Ill 82, 176 NE 333 (uncontrolled discretion- ary power without standards, invalid). Louisiana. McCauley v. Albert E. Briede & Son, Inc., 231 La 36, 90 Sold 78, quoting McQuillin text. Pennsylvania. See Taylor v. Aloore, 303 Pa 469, 154 A 799. Connecticut. Beating v. Patterson, 132 Conn 210, 43 A2d 659, citing A1cQuil- lin text. Ohio. Appeal of Clements, 2 Ohio App2d 201, 20? NE2d 573, quoting >tIc• Quillin text. s New Jersey. Schaible v. Board of Adjustment,134 NJL 473, 49 A2d 50 (rec- ommend variance). See §25.173. § 25.166. Unnecessary hardship or difficulty. ;,; ~' Generally, ordinances following the express authorization of zon- '~ ing statutes confer upon administrative agencies the power to var}• or modify the application of any of the regulations or provisions of the ordinance where there are practical difficulties or unnecessary ~. i `s: ,1 ~c :.,, .: . "»f'.'.-,tea-A•a„~,~~:,c---.-r~:~- .~~.-.z~•~-~~T,-~„_. ~.', .. .._..~._.__..___, ... _... •- :1 q97 ZONING § 25.166 r:..t~; hardships in the way of carrying out the strict letter of the ordi- nance, so that the spirit of the ordinance will be observed, pu~ lic ;k _ y_. ' , .; .i , ~~ fety and welfare secured and s~.ibstantia] justice done.' The vari- -. "' ante ecr.+us essary ar s r rs t e recognized and ap- . • : ° proved legal device by which the basic constitutional right of proper- ~ `''` _ : ty is reconciled with the paramount right of government to protect ' by zoning the public health, safety, morals and ~velfare.= .~ ~ - :, Under most zoning statutes and ordinances, practical difficulties _ ~ • ~ -, or u ec •~ _ ~ •~s ~n is ant of a variance.' „ • ...,e us, a variance rom a setback or side-line restriction may be per- • . mitted or denied according to a finding of unnecessary hardship.' • • ~ - But it has been said that mere hardship alone is not sufi'icient to ~'~ jt}stify gran ing a variance. Under some laws, there may be no requirement of a finding of _, ~; • Y special or unnecessary hardship,e particularly where a distinction is ~ -- made between different kinds of variances;' and ordinarily no show- `=~' ing ofhai•dship is required upon application for an exception, special ~ exception, or special use, as distinbuished from a variance.e But under same laws the hardship issue must also be considered - ~ ,' ~.,~, on an application for an exception.° • • z ;~ 3 United States. Village of Euclid, for allowing apartment building in sin- • Ohio v. Ambler Realty Co., 272 US 365, gle-residence zonel. ,~ 71 L Ed 303, 47 S Ct 114, 54 ALR 1016, Indiana. Bromley v. Indianapolis, 119 • ~ .~ revg 297 F 307. Ind App 189, 85 NE2d 93; Board of Zon- _ ,• ~. Colorado. Cross v. Bilett, 122 Colo Ong Appeals of Indianapolis v. R'heaton, 278, 221 P2d 923. 1l8 Ind P.pp 38, 76 NE2d 597; Keeling v. - , ,. . Connecticut. Berlani v. Zoning Board Board of Zoning Appeals of Indianapolis, ` y' - ' of Appeals of Town of• Plainville, 160 117 Ind App 314, 69 NE2d 613; Board of t' . ,, Ccnn 166, 276 A2d 780: Allen v. Zoning Zoning Appeals of Indianapolis v. ?Boyer, ` ., ~ Board of Appeals of Town of Danbury, 108 Ind App 198, 27 NE2d 905. ' 155 Conn 506, 235 A2d 654; Parsons v. Iowa. Board of Adjustment of City of . .. Board of Zoning Appeals of \rew Haven, Des Aloines v. Ruble (Iowa), 193 NW2d " ' 140 Conn 290, 99 A2d 149; Mc1llahon v. 497; Anderson v. Jester, 206 Iowa 452, • Board of Zoning Appeals of New Haven, 221 N1'V 354, citing 111cQuillin teat. -, ~. - ~ 140 Conn 433, 101 .42d 284; Rafala v. Kentucky. Bray v. Beyer, 292 Ky 162, • . _. Zoning Board of Appeals of Hartford, 135 166 S~4'2d 290; Smith v. Selligman, 270 Conn 142, 62 A2d 337; Bishop c. Board of Ky 69, 109 Sw2d 14. Zoning Appeals of New Haver., 133 Conn Maryland. Jack Lewis, Inc. v. Mayor 614, 53 A2d 659. & City Council of Baltimore, 164 Md 146, Delaware. Searles v. Darling, 7 Terry 164 A 220, app dismd 290 US 785, 78 L Ed (46 Dell 263, 83 A2d 9fi. 517, 54 S Ct 56 (particular difliculties or ' ~~~ Florida. State v. Valz, 117 Fla 311, unnecessary hardshipsl; R. B. Const. Co. • 157 So 651: ' v. Jackson, 152 Ald 671, 137 A 278. • Illinois. Feople v. Gill, 389 Ill 394, ,59 A'Iassachusetts. Tanzilli v. Casassa, ' NE2d 671, 674 ("practical difliculties or ~ 324 Alass 113, 85 NE2d 220; Real Proper- particular hardship" statutory ground ties, Inc. v. Board of Appea! of Boston, ,.t .. .. ,. r, :s - - r . • -k .. . - ,. a f .. ~> - - s •~, ~. ~, .. ., 4.: ~- 501 ZONING ship. Sc:arpati v. Feriola, 8 App Div2d 111, 186 NYS2d 927. In New York a variance may begrant- ~ without a showing of unique hardship. q'he variation may be made to meet the specif is case in order to enable the owner to make a reasonable and profitable use of his property if it can be done without violence to the general zoning plan and without causing substantial inconve- nience to the immediate neighborhood, although the applicant has no right to insist upon a decision in his favor. In re St. Nicholas Russian Orthodox Church of Whitestone, 25 ~iisc2d 380, 201 NI'S2d 424. ~ District of Columbia. Palmer v. Board of Zoning Adjustment (DC App), 287 A2d 535. Missouri: Brown v. Beuc (Mo App), 384 S~V2d 845. I\'ew~ York. Bellamy v. Board of Ap• peals, 32 biisc2d 520, 223 NYS2d 1017 ("practical difficulties" have important application only to so-called "area" vari- ances and play little part in so-called "use;' or exception from zonir;g limita- tion, variances); Hagar v. Stokna, 28 DSisc2d 522, 214 NYS2d 18; Fina Homes, Inc. v. Becket (11isc), 212 NYS2d 635; Quagtio v. La Freneire (Mist), 2I1 NYS2d 239. - In New York special hardship need not be established where an area variance is involved. Perri v. Zoning Board of Ap- peals of Incorporated Villat. of Scars- dale, Westchester County, 283 App Div 818, 128 NYS2d 774. . In application for area variance, as dis- tinguisl;ed from use variance, unneces- sary hardship is not required to be shown. Satin v. Board of Standards &. Ap- peals of New York, 28 Misc2d 931, 214 NYS2d 89. § 25.167 Area variance may be granted on ground of practical difficulties alone without showing of unnecessary hard- ship. McInroy v. Gruncwald, 14 App Div2d 547, 218 NYS`ld 116. Applicant for variance of an area re- quirement isnot required to show special hardship, but merely practical difficul- ties. Stadden v, Macauley, 12 hlisc2d 297, 178 NYS2d 954, affd 4 App Div2d 704, 164 NYS2d 1004. House separated by topographical fea- tures from main property, but on too small a parcel to permit partition under existing zoning, could be occupied as an independent d~•elling upvn grant of an area variance, which grant did not re- quire showing of special hardship as con- dition precedent. G;-uen v. Simpson (IVlisc), 153 NYS2d 287. e Indiana. Long v. Board of Zoning Appeals for Indianapolis, 134 Lnd App 97, 1S2 ~'~TE2d 790. Kentucky. Schmidt v. Craig (Ky), 354 S~V2d 292. New York. Spann v. Baldwin (Mist), 214 NYS2d 780; Application of Foland, 26 Ivfisc2d 1093, 207 NYS2d 607; Syosset Holding Corp. v. Schlimm, 15 Misc2d 10, 159 NY52d 88; Kcssel v. I\iichaelis, 15 A4isc2d 755, 159 Nl"S2d 109; Family Con- sultation Sen•ice of Eastchester, Inc. v. Ho«'ard, 14 A1isc2d 194, 176 NYS2d ?07 (special exception); An*.hony v. Liber- man, 13 D4isc2d 335, 175 NYS2d 743 (spe- cial use). Pennsylvania. In re Appeal of Gage, 402 Pa 294, 167 A2d 292. Rhode Island. Cardin v. Zoning Board of Review of ToH•n of North Provi- dence, 81 RI 497, 109 A2d 752. e New Jersey. G6ugeon v. Board of Adjustment of Borough of Stone Harbor, 52 NJ 212, 245 A2d 7. § 25.167. - «'hat constitutes and proof. "Unnecessary hardship" has been said to exist ~~~here a zoning limitation vte«•in~ : e property in the settin of its em•ironment, is so~easonable as.t.o constt u .. ~ - rv and cat~rictous inter- Se• ~Tnc~ wi P a~}r r±g~t of ri~•ate`ooerty.' Under other efini- 25.167 ' 1VIUIrtC[PAL CORI'OFtATIONS 502 tions, practical difficulties or unnecessary hardships as grounds for zoning variances in particular cases have been viewed as those that under the circumstances are so unreasonable, arbitrary or Capri- . cious as to constitute interference with the basic right of property= A condition of difficulty or hardship is not deemed equivalent to a taking of property, in the constitutional sense,' although, within the contemplation of particular laws, unnecessary hardship a^es where it is proved that a literal application of the terms of the or Inance corn -. an u:~~ner o a eneficial use of his land.` It has also been sal t a to~ustl y a variance or unnecessary ~.._.. hardship, it must appear that the change will not substaltially feet the comprehensive zonin )an and that strict adheren . he plan will cause ar s Ip which is unnecessary to the carrying out ofthe plan.' In any event, a variance may e permitted only in cases of pr~ actical necessity, where the reasons for it are substantial, seri- ous and compelli~b t Is un amental that the difficulties or hardships must be unique to ~ustl~a variance; they must ~e peen rar t.o t ie app Ication of zoning restnctlons to particular property and not eneral in charac- ter, since Iflrcu tees or hardships_snared by all ~o to the r~se~nable- ness of 'the zoliina restrictions broadly and render them invalid or call for their modification b arn~ ordinance.' In other H'or s, the plight of an applicant for a variance must be due to peculiar circumstances and conditions,° and it must be special or unique in contrast with that of other property owners in~me district.' Fulahermore, it is not uniqueness of the plight of the own- er, b t uniqueness ofthe land causing the plight, which is the criteri- on.1O If the hardship is common to the v:hole neighborhood, it may be ground for an exception or special use permit;" but generally in such case the remedy is to seek a change in the ordinance rather than a variance.12 D4oreover, the hardship must not only be peculiar to the applicant's property but it must relate to the particular prop-. erty ofthe applicant for which he seeks the variance." No one factor determines the question of what is practical difficulty or unneces- sary hardship,'` but all relevant factors, when taken together, must indicate that the situation of the premises in question is unique in t at t ey cannot e put reasona v to a con ormini~e~~er=ruse of the limitation Imposed upon them b}• reason of their classification in a specified zone; «' Ien t is appears, the further uestion ha to e determine w e er eslra ]e relief may be granted without substantially derogating from the intent and purpose of the zoning law." But this doctril:e, that before a variance or exception can be granted a special hardship must be shown to fall upon t.Ie particular <:. _ ,. ~,~ t .. .. ''" .iM(' .. .~ _' t - - :~ -, ~~ ,u , ..a .a ... . ... .. ~. .~ 503 ZONING §.25.167 property, should not be applied so narrowly as to destroy the power of a zoning board t,o act where grounds for action really exist.16 The condition is fulfilled where premises have become obsolete for exist- ingpurposes, buildings are ~t~o.rn out, and neither land nor buildings can be converted into any conforming use consistently with exercise of reasonable business judgment." Variances have been granted to permit the use of structures erected at considerable cost ~ti-ith appar- ent approval of governing authorities and which are in fact unsuit- able for any use permitted under the zoning laws.18 A hardship resulting from the peculiar topography or condition of the land or a aon «~ is > n~ -es e an un~. ~ e or the to ~<htc~ies may well be such a hard- s ip as is contemplated by the ordina ce.19 an unnecessary hardship exists may be a question of fact to be determined by the zoning board or other appropriate public body or officers.20 The one applying for or seeking the vari- ance has the burden of showing the hardship to himseif.21 Proof of unnecessary hardship has been declared to be a jurisdictional pre- requisite to granting of variances.22 1 Connecticut. Talmadge v. Board of Zoning Appeals of New Haven, 141 Conn 639, 109 A2d 253 (variance cannot be granted merely because it will do no harm). Kentucky. b4oore v. Lexington, 309 Ky 671, 218 S~'i'2d 7 (loss of rental from garage in rear }•ard, not a hardship). Maryland. Carney v. Baltimore, 201 A1d 130, 93 A2d 74. Missouri. Beckmever v. Beuc (IVIo App), 367 S1'i'2d 9, quoting McQuillin text. New Hampshire. Bouley v, Nashua, 106 NH ?9, 205 A2d 38. New Jersey. Protomastro v. Board of Adjustment of Hoboken, 3 NJ 494, ?0 A2d 873, revg 3 NJ Super 539, 67 A2d 231. New York. North Titus Residential Assn of Irondequoit, New York v. Board of Zoning Appeals of Town of Ironde- quoit, 205 Misc 970, 127 NYS2d 502 (land cannot yield a reasonable return if used for permitted purposes in zone). =Connecticut. I,xveille v. Zoning Board of Appeals of Meriden, 145 Conn 468, 144 A2d 45 (deficiency in ordinance as to specific boundary of commercial zone, a_s hardship). Florida. Forde v. ~Iami Beach, 146 Fla 676, 1 Sold 642 (changes in character of property from natural causes may give rise to hardships, etc.). Iowa. Deardorf v. .Board of .Adjust- ment of Flanning & Zoning Commission of the City of Fort Dodge, 251 Iowa 380, 118 NW2d 78, citing 1~1cQuillin text. New Jersey. Beirn v, ;\~Iorris, 14 NJ 529, 103 A2d 361; Albright v. Johnson, 135 NJL 70, 50 A2d 399; Interboro Truck- ing Co. v. Board of Adjustment of City of Ferth Amboy, 135 NJL 520, 53 A2d 213; National Lumber Products Co. v. Fonzio, 133 NJL 95, 42 A2d 753; Scaduto v. Town of Bloomfield, 127 NJL 1, 20 A2d 649; Rodee v. Lee, 14 NJ Super 188, 81 A2d 517. New York. Calcagno v. Town Board of Town of ti~'ebster, 265 App Div 687, 41 I`TYS2d 140: Court Blvd., Inc. v. Board of Standards R Appeals of :Vew York lMisc), 72 NYS2d 753. Khode Island. Fetrarca v. Zoning • ` t , ~, § 25.168 MUNfC1PA C(~Ftl OHATION3 5117 _s•~". Upper Dublin Tp., 410 Pa 362, 189 A2c. of Northern New Jersey v. Borough of ~„ . ' 138; Covering v. Zoning Board of Adjust- Paramus, 7 NJ 335, 81 A2d 753; National ~r ment, 406 Pa 339, 178 A2d 740; In re House & Farms Assn, Inc. v. Board of Application of.Phi Lambda Theta House Adjustment of Borough of Oakland, 2 NJ rE Ass'n, 400 1'a 6, 161 .A2d 149; Philade]- 11, G5 A2d 518, revg 137 NJL 542, 61 A2d =~ phia Zoning Board of Adjustment v. Earl 55; Ramsbotham v. Board of Fublic .q. :i: Scheib Realty Corp., 8 Pa Cmwlth 11, 301 \Vorks of'Paterson, 2 NJ 131, 65 A2d 748, A2d 423; Boulevard Land Corp. v. Zoning revg 137 NJL 559, 61 A2d 196, and 137 ~" :_' Board of Adjustment of Philadelphia, 8 .NJL 561, 61 A2d 197; Sitgreaves v. Board ~, Pa Cmwlth 584, 303 A2d 234; Jackson v. of Adjustment of Town of Nutley, 136 Y Zoning Board of fork City, 5 Pa Cmwlth NJL 21, 54 A2d 451. ~~ 271, 290 A2d 438. 1~'ew York. Clark v. Board of Zoning a' Rhode Island. Raposo v. Zoning Appeals of Town of Hempstead, 301 NY Board of Review of Towm of Middletown, 86, 92 NE2d 903; Hickox v. G riff-in, 298 104 RI 172, 243 A2d 99; :Mount Pleasant NY 365, 83 NE2d 836; Muller v, Zoning ~~ Realty & Construction Co. v. Zoning Board ofAppeaIsofTownofRamapo,272 - Board of Review of City of East Provi- App Div 1074, 75 Nl'S2d 192 (record dente, 100 RI 31, 210 A2d 877; Benoit v. must show consideration of hardship ele- Zoning, Board of Review of R'oonsocket, ment); Levandowski v. Zoning Board of ;,~ - 95 RI 46, 182 A2d 432; Cournoyer v. Zon- Appeal of Town of Murray, 29 Misc2d ing Board of Review of Town of Lincoln, 1.98, 217 NYS2d 957. 92 RI 42, 166 A2d 128; Beaulac v. Zoning Pennsylvania. Pyzdrowski v. Board Board of Review of Town of Cumberland, of Adjustment of Pittsburgh, 437 Pa 481, 91 RI 459, 165 A2d 497. 263 A2d 426; Appeal of Riccardi, 393 Pa s ~ Vermont. L. A1. Pike & Son, Inc. v. 337, 142 A2d 289 (absence of'objection by _' Town of \Vaterford,.130 Vt 432, 296 A2d adjacent owners does not dispense with _ 262. requirement of proof of hardship to ap- zz New Jersey. Home $ui]ders Assn plicant). h _ ;x ~a } § 25.168. - «'hat does not constitute or prove. Practical difficulty or unnecessary hardship, to ground a variance, _ ~/ is not mere hardship,l inconvenience,2 interference ~i_ithc_ onvenien- !~ ce' or ecoVno~mic:13d~•antage,` disc ointm, rnini7 that land is Flo ~vai able for business uses,' financial or pecuniary hardship or disadvant.atre~b loss of prospective profits-' r -PVPntI/l'1 c,far, increase of profits,e or prohibition of the most profitable use of property.a Thus, t ~e ~;~ere inconvenience or additional exp~r.~e of filling a depression in land to erade for use for Zoned purposes \vould not ~tecessarily anloLnt. t,n endue hardship.'.° And it is not per sea suffi- cient reason for a variance that a nonconforming use is more profit- . able to the landowner," or that his land is better adapted for a forbidden use than for the one which is permitted.' Nor is a vari- ance usually considered justified because of the mere fact that grant- ing it might improve the selling or rental value of the property involved,l' although there appear to be contrary views.l' In fact, even a substantial detriment may not suffice to ground a variance.' ° • But financial disadv~ ~tase or loss may be a factor in constituting ~~ 511 7ornrrc § 25.168 ~ s: unnecessary hardship as a ground for a variance,16 even though such loss alone is insuflicient to establish a hardship." .~~ F The practical difTiculty or unnecessary hardship, essential to a .: • ~ ~, variance, is not difficulty or hardship which would have existed in • ~.. `,.$ the absence of the ordinance and which is not occasioned by it.'~ ~. ~-. °~ Thus, a prezoning ownership ~f an undersized parcel is not per se an - `° undue hardship that justifies the granting of a variance." Nor in : general, is it self-created hardship, viz., that aricing from the con- ,, .d-..,-r ,acs r fissions o e o~4•ner o proper y an not irectly • ~ " cons~quen ui?on zoning regu.a ions.2O Conse uently, one ~.~ho pur- phases nrnne t~v ~~n ~r znmm~ restrictions ordinarily i5 foreclosed - ~ . { from seehinR a variance on the ground of hardships or special dif- ., -<°~ ficulties,~' since in suc a case any rea ,ar s i is ei per self- • ~ "~4 create , ~r ~s an .n uent~a consideration in fixing the purchase • °~ ~ rprice.s: Thus, one «~ o -no~.vin~rly a .quires ar. or a pro i ite use ` ,~; cannot thereafter ave v~ r•^ the ground of special hard- • s s gyp, and this rule applies to an unconditiona vendee under an - - '~ executory contract as well as a purchaser under an executed con- ,.,# tract.2` Ho"~ever, but not necessarily,2' such rule does not necessi- •• tate holding that a ~-endee under a contract both executory and • conditional must likewise be denied a ~°ariance, since in such case " ., the vendee maybe consdered to have applied for the variance as the " agent and with the consent of the holder of the legal title.26 Indeed, according to the weight of authority, while prior kno~s-ledge of the owner of existing zoning restrictions is an element in determining the existence of a hardship, it does not necessarily preclude his right - ~ ;~~°' ` to a variance.z' Likewise, one who conveys a portion of his land may ~ . ~ - ' ~ not be granted an.the ground ofhardslip a variance as to the portion - ' '~ remaining.28 And, as already has beeri noticed, unless the applicant ' ' ` owns some right, title or interest in the property to which the appli- t. •-"~ cation relates, he can incur no hardship which will ground a vari- • - - - ` ance.29 Certainly, it is not hardship or loss consequent on building • ? ~ construction, business investment or individual enterprise in viola- - "'~ tion of zoning ordinances or restrict.ions;30 and this is true even - •`~• though construction or expenditures have been made," under color - '"~ of a permit,32 or pending the determination of a right to a permit or " ~ to a variance." Furthermore, the fact that a business use or build- ' ~ , ing, constitutes a losing enterprise does not, at least in principle, ' ~ ~ warrant a variance.36 Moreover, the difficulty or hardship that ' "'' grounds a zoning variance must come from the zoning ordinance or ` restrictions, and not from deeds," contracts36 or plat restrictions.' '' v The self-created hardship doctrine has in some cases been said to ' •'``-~ require a property owner to make some reasonable effort to relieve ___. ... 25.165 MUNICIPAL CoItI'ORATIO\S 512 ~i Y s b • F 1'. or remove difficulties peculiar to his use of land in compliance with zoning restrictions.38 The self-created hard~hio rule does not anply, it has been said;t.o "area variances, where such variances are Is Inguished from use variances.79 It does not sufT'ice as a basis for a variance, it has been ruled, that -- a zoning regulation is unreasonable in its application to the locality and confiscatory in its application to particular property, since these circumstances fail to constitute a special or unique hardship in con- trast to that of other property ownel-s.`0 A change in the ge-ieral condition of the entire area so as to require a fundamental revision of the zoning ordinance presents a legislative question and not spe- cial hardship to particular property, and should be remedied by - revision of the general zoning law and not b~- granting a special privilege to a single owner.`1 Needless to state, convenience or incon- venience to the general public is not a ground for the grant or denial of a hardship variance.42 1 Alabama. Nelson v. Donaldson, 255 Ala ?6, 50 Sold 244. Alassachusetts. Barnhart v. Board of Appeals of Scituate, 343 ~1ass 455, 179 NE2d 251 (special conditions personally affecting landowner, and not his land, are not grounds for variance). New Jersey. Brandon v. Board of Com'rs of Town of Montclair, l25 NJL 367, 15 A2d 598, affg 124 NJL 135, 11 A2d 304. . ~ Pennsylvania. Rinck v. Zoning ' Board ofAdjustment, 19 Pa Cmwlth 153, 339 A2d 190 (denial of use variance for beauty parlor in home); Colonial Park for Mobile I. %mes, lnc. v. New Britain Bor- ough Zoning Hearing Board, 5 Pa Cmwlth 594, 290 A2d 719. t Delaware. Sear)es v. Darling, 7 Ter- ry (46 Del) 263, 83 A2d 96, citing McQui]- Iin text. Illinois. River Forest State Bank & ' Trust Co. v. Zoning Board of Appeals of D4aywood, 34 Ill App2d 412, 181 NE2d 1. Louisiana. State v. Board oz' Zoning Adjustments of New Orleans (La App), 94 Sold 138. Maryland. Carney v. $altimore, 201 Md 130, 93 A2d 74; Cleland v. Mayor City Council of Baltimore,193 Md 440, 84 A2d 49; Heath v.'tlayor & City Council of Baltimore, 1~~ ~1d 478, 58 A2d 896. Mississippi. ~~'estminster Presbytc~ri- an Church c. Jackson, 253 Itliss 495, 1 ~ 6 Sold 267. IVew fork. Quaglio v. La Freniere (Misc), 211 ':1'SZd 239 (lack of space, in rear- yard for construction, not a hard- ship). Rhode Island. Raposo v. Za~ing Board of Rev:ew of Town of Middletown, 104 RI 17l, 2=3 A2d 99 (lot-line restric- tion); Fogan}~ ~-. Zoning Board of Review of ~Var~.vick, S6 RI 1, 133 A2d 641 (long distance from school not a hardship); Cardin v. Zoning Board of Review of Town of No-:h Providence, 81 RI 497, 104 A2d 752 mere inconvenience or ex- pense of filling depression to bring land to grade); Fiske v. Zoning Board of Re- view of Tou-n of East Providence, 72 RI 2I7, 50 A2d 65, distg East Providence 1Sills, Inc. ~-. Zoning Board of Review of Town of Eas: Pro~•idence, 57 RI 428, ]55 A 531, because ]and in that case was bought. before enactment of ordinance and other facts were different. South Carolina. Hodge v. Pollock, 223 SC 342, ~ 5 SE2d ?52 (reduction of six-foot side-~~ard requirement to three and one-half fret). Verrnont. De~i'itt v. Town of Brattle- '_...~ r .... ,... „. ~# 523 ~ 7.oxrxc § 25.169 - 9.~ ~ C. REQUISITES AND GOVEKNING CONSIDERATIONS << :~ : § 25.169. Generally. .x . ` ~z Statutes and ordinances may establish fundamental policies to - ~ ~" govern the authorization of variances, exceptions, and special uses.l ", ~ Generally, variances are authorized only in cases of unique and - ~ " unnecessary Tif~u7~y or ar s~ip2 and only ~n cases of real meat.' - , : <*' gur e common y prove e y zoning or mances is t .at exceptions ~'~` d variances be allowed to affect substantial justice, in the public • ~ ' interest, and in keeping with the spirit of t e or rnance as a whole.' _ - _ ~ .~ Needless to state, the maximum possible enrichment of the appli- - ~ cant is not a controlling factors In order that a variance may be K ~ ~ ..: granted on the ground of unnecessary hardship, it has been ruled, .. "- -;.~ the record must show (1) that the land in question cannot yield a • reasonable return if used .only for a purpose allowed in that zone; (2) ` - ~ that the plight of the owner is due to unique circumstances and not ~~ to the general conditions in the neighborhood which may reflect the unreasonableness of the zoning ordinance itself; and (3) that the use ~ _ to be authorized by the variance will not alter the essential charac- ter of the loca]ity.b It has also been ruled that a use variance should . not be granted unless the property, including improvements, cannot: . _ ', reasonably be used in a manner consistent with existing zoning.' -. ': ~ These rules have been held to apply not only when a variance is •~ sought as to use, but also .when a variance is sought as to area where . - N the applicable ]aws distinguish between types of variances.e Vari- _ ,. .¢ - ances are not to be granted to meet a situation that would have existed in the absence of the ordinance and which is not occasioned }~ _ by it.° Provisions ofordinances for variances and their granting or denial ~~ by zoning boards must be reasonable10 and not arbitrary" or dis- . - _ criminatory.12 Preservation of the property rights of others must be considered relative to the grant or denial ofvariances;" in fact, such _ ~ consideration has been said to be a matter of material consequen- ce." Indeed, it may be specifically provided that a variance or special .~ ~ use may be granted only if it will not substantially or permanently injure the appropriate use of neighboring property.'s A variance to - relieve a hardship that is shared generally, particularly where it would be unjust to those whose property remained subject to the F restriction, must be refused.16 Although the procedures of a zoning board may limit an application for a permit to one particular use , it has been said that the board cannot, in a proper and reasonable discharge of its function, ignore the total picture, of which it has personal knowledge, and act on a piecemeal basis." Thus, for exam- ;v is , h~ . ~. ~' r: -~ .5 "r .-.: r § 25.169 Murrtcll>nl. Cot~t•ort,~•rlorrs 524 plc, it may be a material consideration that the grant of a variance would leave certain land in a residential zone with territory on both sides devoted to commercial use.18 A zoning board has no right to re ;ard. the prevention of competi- tion as a factor in administering zoning taws or to permit objections of competitors. to constitute a basis of denial of a variance.19 A vari- ance cannot impose restrictions more severe than those imposed by the ordinance itself.20 An application for a permit for a special use may not be deniEd for the reason that a more suitable location is available.=' 1 California.. Essick v. Los Angeles, 34 Ca12d 614, 213 P2d 492. Connecticut. Sen•ice Realty Corp. v. Planning & 7,oning Board of Appeals of Town of Greenwich, 141 Conn 632, 109 A2d 256 (holding invalid a restriction on the amount of permissible psrking on a lot in a business zone as a condition to granting a special exception authorizing use of the premises as an automobile salesroom and garage). Indiana. Antrim v.' Hohlt, 1^2 Ind App 681, 108 1\E2d 197. Massachusetts. O'Brian v. Board of Appeals of Bruckton, -1~Tass App -, 326 NE2d 728 (setting out ;indir.gs justifying variance for undue hardship]. btichigan. Beatrice Block Club Assn v. Facen, 40 Mich App 372, 198 NW2d 828. - Rhode Island. Sun Oil Co..v. Macau- Iey, 72 RI 206, 49 A2d 917. Without sufficient record, support for a necessary finding of exceptional nar- rowness, shallowness or shape or excep- tional topographic conditions, or other extraordinar}• and exceptional situation or condition, the grant ing of a variance is an arbitrary act and will be set aside. Hill Iiumeowners Assn v. Zoning Board of Adjustment, 134 NJ Super 107, 338 A2d 824. See exhaustive note, Zoning variances, in "r4 Harv L'Rev 1396. ~ See ~§25.166-25.168. ~ Connecticut. Bishop v. Board of Zoning Appeals of New Haven, 133 Conn 619, 53 A2d 659. 1lontana. Lambros v. Board of Ad- justment of Missoula, 153 :11ont 20, 452 P2d 395. Neµ• Jersey. Rexon v. Board of Ad- justment of Borough oi' iladdonfield, 10 NJ 1, 89 A2d 233 (factory use in residen- tial Tune under variance coald r.ot be per- mitted where factory was threat to health and well-being ~f resident=); Sie- gel v. Board of Adju=tmcnt of \e•.yark, 137 NJL 4'13, 60 A2d f;26. Olaahoma. Bailey v. lih?s (Okla), 503 F2d 877. Penrsyl>•ania, Foster Advertising Co.: Inc. v. Zoning Board of Adjustment, 408 Pa 248, 182 A2d 521; Suh}• v. Zoning Board of Adjustment of Philadell:~hia, 402 Pa 657, 169 A2d F,2 (best interests of community mast be considered and mere absence of objectors may .not be inter- przted by board as approval of ap- plicant's intentions). Texas. Texas Comoi. 'fh~atres v. Pit- tillo (Tex Civ App}, "04 S\V2d 396. Ohio. State v. }iiefaber, 114 Ohio App 279, 181 NE2d 905. c Indiana. East Chic;,go, Inc. v. Sin- clair RefiningCo., 232 Ind _°95, ] 11 :~E?d 409. Iowa. Deardorf v. Board of Adjust• meat of Planning fi. "honing Commission of City of Fort Dodge, 254 Iowa 380, 118 N\\'2d 78, citing blcQuillin text. '•fichigan. Beatrice Block Club .4ss'n v. Facen, 40 Mich App 372, 198 N\V2d 528. New fork. \ViIii;ims v. Oster Bay. 32 NY2d 78, 343 N1'S2d 118, 195 1E?d .~ ;,. - a . * i • .` ,,,.~ *- . t-,.,- , a,' f . l 1 .~~ 07 . -~~, ..~ . - • ~ - =•q<, r "~ F • .. ..~ . ,` ~k r, .. .a • ,...~ " • , . A'. - . •-.a . ,. i - ?1 ,y . ~ -t ~ • ,~ . ~.9 -. x - . • M1~ .•. ~ ' . _. ss . ""*~ . ,. ,a • ~ •~ .. _. ~~~ _. .::r "t . .:. ~~ • ~ >. • 535 ZoNlrvc § 25.172 have detrimental effect on surrounding residential property): Mississippi. Jackson v. Ridbnvay (Miss), 256 Sold 439. New York. Hopkins v. Board of Ap- peals of Rochester, i<lonroe County, New York, 179 b4isc 325, 39 NYS2d 167. 1~ Arizona. Nicolai v. Board of Ad- justment of Tucson, 55 Ariz 283, 101 P2d 199 (warehouse). Kentucky. Arrow Transp. Co. v: Plan- ning & Zoning Commission of Paducah and D9unicipal Area iKyl, 299 SW2d 95 (petroleum storage tanks). Maryland. Leimbach Const. Co. v. Baltimore, 257 >tld 635, 264 A2d 109 (de- nying permit to construct. driveway and culvert across residential property as ac- cess to commercial property). is Tract of more than an acre in.area, located v~•ithin a homogeneous residen- tial zone in which no commercial uses existed, could not be used for building, repairing, and storing of boats. Atherton ~•. Board of Appeals of Tuw•n of Bourne, 334 b4ass 451, 136 NE2d 201. 36 I~'ew Jersey. ~~'ajdengart v. Broad- way-Thirty-Third Corp., 66 NJ Super 346, 169 A2d 178. § 25.172. Doing of substaatiaT justice. The pur ose of variances in the broadest sense is the rendering of justice in unique and m tv~ ua cases o practical t tcu ties or u essary ar ships arising from ]iteraI a-U15c~on of zoning or mances; zoning st.a utes an ordinances commonly provide in a t e grant o variances s. "ou d be to the end of doing su s an ~ _. n is respect zoning measures are undoubted- lyconstitutional and valid.Z Thus, generally speaking, a variation of a zoning ordinance must do substantial justice,' and, to be permit- ted, must affect alike all persons in the same situation, since equali- ty of privileges is the basic principle of government.° 1 Nebraska. Alumni Control Board, Alphi Psi Chapter, Delta Sigma Phi Fra- ternity, Inc. v. Lincoln, 179 Neb 194, 137 NW2d 800, quoting McQuillin text. a United States. Village of Euclid, Ohio v. Ambler Realty Co., 272 US 365, 71 L Ed 303, 47 S Ct 114, 54 ALR 1016, revg 297 F 307. Connecticut. Rommel) v. Walsh, 127 Conn 16, 15 A2d 6; s.c., 127 Conn 272, I6 A2d 483; Torello v. Board of Zoning Ap- peals of 1``ew Haven, I`l7 Conn 307, 16 A2d 591; First Nat. Bank S Trust Co. v. Zoning Board of Appeals of Greenwich County, 126 Conn 228, 10 A2d 691. Florida..State v. Valz, 117 Fla 311, 157 So 651, 655 citing McQuillin text. Missouri. In re Botz, 236 Mo App 566, 159 SW2d 367. Nea• }iampshire. Vogel v. Board of Adjustment for >vlanchester, 92 NH 195, 27 A2d 105." i\'ew Jersey. Schaible v. Board of Ad- justment, 134 NJL 473, "' A2d 50. New York. Selleck v. `'Waterbury, 257 App Div 1049, 13 ti~'S2d 591. Oklahoma. Thompson v. Phillips Pe- troleum Co., 194 Okla 77, 147 P2d 951; Oklahoma City v. .Harris, 191 Okla 125, 126 P2d 988. Pennsyh•ania. Darling v. Zoning Board of Adjustment of Philadeiphia, 357 Pa 428, 54 A2d 829. South Carolina. I1lomeier v. John McAlister, Inc., 203 SC 353, l7 SE2d 504. a Montana. Lambros v. Board of Ad- justment of i•lissoula, 153 Mont 20, 452 P2d 398. Connecticut. Libbv v: Board of Zon- i~,~; Appeals of New Haven, 143 Conn 46, 118 A2d 894. ~I r- . _ __ •A~_ ~. , . b `" a ' § 18.51 AMERICAN LAW OF 'CONING .. ..•, berg one was decided by the Bronxville court, and both cases ` ~ support rules which arguably apply to area variances. A showing that a variance will improve the efficiency of the applicant's business will not support an area variance. Such proof falls short of a showing that the applicant will suffer practical difficulties .or unnecessary hardship if the variance is not granted.97 § 18.52. -Variance to remove inconvenience: .. While most courts apply a less stringent standard to the " ~ ~ granting of area variances than is true of that of use variances,9R it is clear that an applicant cannot qualify for an area variance simply by showing that he will be incom~enienced if relief is not rante us, a variance zn sz e-yar requirements may not be granted upon a showing that it would serve the convenience of •. the applicant to construct a bedroom and bath downstairs and avoid the necessity of climbing to the second floor.' Proof is insufficient which shows that without a variance of setback and yard restrictions the owner of a nursing home will be unable to construct an additional building in conformity with existing structures. A variance will be disapproved where the applicant proves no .c uz ~in~ n any ~~-ill have t~ hP adiu~tr•rl if the ~~ variance is not granted. The Supreme Court of South Carolina, The case is discussed in § 18.47, (1961); Carney v Baltimore, 201 Md .supra, where the development of the 130, 93 A2d 74 (1952); Hemlock Devel- New York rule is described. opment Corp. v McGuire, 35 App Div 96. Otto v Steinhilber, 282 NY 71, 2d 567, 313 NYS2d 608 (1970); Di 24 I`'E2d 851 (1939), reh den 282 NY Iorio v Zoning Board of Review, 105 681, 26 1~'E2d 811. RI 357, 252 A2d 350 (1969); Sun Oil Co. v Zoning Board of Review, 105 RI The case is discussed in § 18.16, 231, 251 A2d 167 (1969); Raposo v supra, where the evolution of the un- Zoning Board of Review, 104 RI 216, necessary hardship standard is de- 243 A2d 99 (1968); Travers v Zoning scribed. Board of Review, 225 A2d '222 (1967, - 97. Troiano v Volz, l9 Misc 2d 953, RI); Hodge v Pollock, 223 SC 342, 75 • 189 NYS2d 451 (1959). SE2d 752 (1953). 98. § 18.50, supra. 1. Carney v Baltimore, 201 Md 130, 93 A2d 74 (1952). • 99. B. L. Ivey, Inc. v Allen, 105 Ga • .App 728, 125 SE2d 549 (1962); Cities 2. Covering v Zoning Board of Ad- Service Oil Co. v Board of County justment, 906 Pa 339, 178 A2~I 740 Comrs., 226 Md 204, 172 A2d 523 (1962). 284 .. • V w~ 1 '- .. n'' 18.52 AMERICAN LAW OFI,ONING ,, a more economical improvement could be built if a variance were granted.e Variances to permit uses which are traditionally regarded as .serving the public welfare may be treated more generously than others. A New York court held that practical difficulty ~s•as demonstrated where a home for the aged sought a height vari- ance and proved that the cost of a lower building of comparable size would cost more.9 A board of adjustment is without author- ity to grant a variance solely on the ground that the proposed building will provide housing which is needed in the commu- ' nity.10 Even a religious institution may. be required to make some showing of practical difficulty where a major area variance is sought." § 18.53. -Variance to relieve personal problem of applicant. An area variance will not be affirmed if it is granted solely to relieve a roblem w rc rs persona to e app rcan ra ier than es 11 affecting the of in question. T us, a Massachu- setts court held that a variance may not be granted to permit encroachment of a side yard by the construction of a. porch, simply because the porch is to be used for an invalid child.' The Supreme Court of Pennsylvania affirmed the denial of a variance to permit a 31h-foot encroachment on a 30-foot setback. The applicant desired to build an inclosed porch for his asthmatic wife and a son wha suffered from a respiratory ailment.13 Similar 8. 4672 Broadway Corp. v Board of Standards 8: Appeals, 225 App Div 97, 232 NYS 266 (1928), affd '250 NY 571, 166 NE 328. 9. Methodist Homes for Aged Fund v Lawson, 61 Misc 2d 184, 305 NYS2d 192 (1969). 10. Elliott v Galvin, 40 App Div 2d 317, 339 NI'S2d 467 (1973), reed 33 NY2d 594, 347 NYS2d 457, 301 NE2d 439. 11. A variance to permit construc- tion of a building within two feet of a rear property line, where the zoning ordinance requires a rear year of 50 feet, is improper in the absence of proof that the landowner cannot rea- 286 sonably develop his property within the zoning restrictions. ~4inist.ers, El- ders & Deacons of Reformed Protes- tant Dutch Church v Schultz, 37 App Div 2d 611, 323 NYS2d 485 (1971). 12. Aronson v Board of Appeals, 349 Mass 593, 211 NE2d 228 (1965). The personal health and family cir- cumstances of a variance applicant who had suffered a heart attack and had 10 minor children were not hard- ships affecting the land which would constitute substantial hardship. «'inn v Board of Appeals, 358 Mass 804, 263 I~TF,2d 440 (1970). 13. P.ppcal of Kline, 395 I'a 122, 148 A2d 915 (1959). .,~.-- ~ .,,,t }' kz.i~ ~.,,. . y.'ti _, y ,t . ~,: r . '- .! _,._ :,.~;: *., ~ . ,s+ l .-..~ . _... ,. ,... 'l ._..~. , ...-...~ ,.:~ ..+ t .._ -•e ~ ~ - .., y~ VAKIANCES § 18.53 rulings have been made by the courts of Oregon," Illinois,'s and Maine.'s The zoning board of appeals exceeded its authority when it granted to the municipal housing authority a variance permitting a 9-story, apartment house containing 100 units of low-rent housing for elderly persons with parking spaces for only 15 automobiles instead of the 90 spaces required by the ordi- nance. It was improper. to find hardship based on the number of cars which would be owned by aged tenants of low income." Denial of a yard variance was sustained by a Maryland court where the proposed construction would have provided a down- stairs bedroom and bath for an aged woman who experienced difficulty in climbing stairs.' In each instance, the deficiency in the applicant's proof lay in its relation to his personal problems, and not to problems inherent in the land, or in the application of the regulations to such land. The New York courts, applying. the practical difficulties stan- dard,19 have been somewhat more willing to find basis for an area variance in a personal problem of the applicant. The case of Quaglio v La Freneire20 deserves special mention, not because it is intrinsically important, but because it demonstrates the ex- tent to which the term "practical difficulties" cari be stretched to reach a problem which commands the sympathy of a court or board. The applicant sought a variance of a rear-yard require- 14. The age, physical condition, or the owner's. inability to maintain his property cannot justify a grant of a variance of lot size to permit the property owner to sell an undersized lot to be used for a site to erect a home. Erickson v Portland, 9 Or App 256, 496 P2d 726 (1972); citing 3 An- derson, American Law of Zoning. 15. A homeowner who wished to extend and rebuild a porch into an enclosed room failed to meet the hardship requirement to obtain a set back variance where she stated that the additional room was needed be- cause of an increase in family size and that she had broken her leg and it would be easier to supervise the family on the ground level. Karasik v Highland Park, 130 IIl App 2d 566, 264 NE2d 215 (1970); citing. Anderson, American Law of Zoning. 16. The criteria for granting an area "variance upon the ground of undue hardship was not met by a showing that the property o«•-~er was in deteriorating health, o«~ned three cars, had an unusable basement ga- rage and a nonconforming front yard area. Lippoth v Zoning Board of Ap- peals, 311 A2d 552 (1973, Me). 17, Russell v Zoning Board of Ap- peals, 349 Mass 532, 209 NE2d 3.37 (1965). 18. Carney v Baltimore, 201 Md 130, 93 A2d 74 (1952). See also Brown v Beuc, 384 SW2d 845 (1964, Mo App). 19. § 18.47, supra. 20. 2U3 NYS2d 968 (1960, Sup). 287 :. i t r •. .~ f ., f~. T t~ is ~ ~. f j ~. • b' ~, :~ g~.; ~_... 18.53 AIVIF.KICAN LAW OF ZONING ment to permit construction of an additional room on his home. His practical difficulty was the addition of a another-in-law to his family. A denial by the board of zoning appeals vas reversed by the court, which held that the increase in the applicant's family was a practical difliculty authorizing the board to grant relief. Litigation did not terminate at this point. The board denied a variance to permit the construction of a 20-foot room, because a 16-foot room could be cor7structed without any offense to existing regulations. The court agreed, holding that no practical difficulty was shown where a room of reasonable size could be built within the zoning restrictions.21 § 18.54. -Variance to relieve difficulties due to shape or size of lot. Where an applicant for a variance can demonstrate that owing to the size or shape of his Iand he cannot make any reasonable use of it unless the literal application of the zoning regu ations as ~~ar~e ~e is en i e o a vartanee:- Such an app rcant can sat.i~f the Stan ar or an area ~~ariance in states which require only proof of -ractical drthctr ties,- and he usually ca ose courts which require that unnecessary hard- ship be proved.' 21. Quaglio v La Freniere, 211 NYS2d 239 (1960, Sup). - The owner of a dwelling containing a single bedroom, and situated on a substandard lot in a minimum 2-acre district, is entitled to a +•ariance to construct a second bedroom to accom- modate a 14-year-old child. Lippe v Cisternino, 44 A4isc 2d 510, 254 NY52d 273 (1964). A landowner sought an area vari- ance to permit expansion of his house to accommodate his son's family. The second family +vas needed to maintain the dwelling due to the ill health of the owner., The court held that the owner had demonstrated practical dif- ficulty. Zebrowski v Herdman, 72 Misc 2d 973, 339 NI'S2d 989 (1972). 22. See Crosby v Board of Appeals, 1975 Adv Sheets 321, 323 I`'E2d 772 (1975, A4ass App). Practical difficulties exist which warrant the granting of an area vari- ance where (1) an SO-foot difference in grade between front and rear render site preparation more expensive, (2) the topographical ,problem will add X225;000 to the cost of construction, and (3) a literal application of the zoning regulations would deprive the landowner of a reasonable return on his land. ~vilcox v Zoning Board of Appeals, 17 N1'2d 249, 270 NYS2d 569, 217 lv'E2d 633 (1966). «'here a lot split by a zone bound- ary lies 75% in one zone where com- pliance is possible, but 25% in a dis- trict ++•ith greater area requirements which cannot be met, the situation involves a practical difficulty which justifies the granting of an area vari- ance. Christian v Laufer, 24 App Div 2d 624, `162 NYS2d 359 (1965). 23. Board improperly denied pe- titioner avariance from the lot area 288 1° ;: VARIANCES § 18.54 ,,n his home. :i1.13~ti~ to his n ti ersed by _ tnt~s family ~~rr;,nt relief. ;.3 denied.a _,. 1~ccause a ;: tv eai~ting - :al difficulty ;,oils ~cithin :.:,i>~ or size _,•r:1te that .. ~ ::::-ke anY r ;-:r zoning ,• r tiuch an _ -, r in Mates .~ -.,. usually .. „ •. . tlt add ~c.•.7,'tiun, _ „ ..f the _..~ .. , ;tt• the --:. s er:::f rt On ..~ . - ~ • !••und- ' A ~:!:. ~., • r ..int. 1. .. r!:iCh . t s~ ••~~a \arl• ;~.. The problem of substandard lots, especially with regard to special provisions for relief, has been considered in an earlier chapter.z° This section is concerned with- administrative relief for the owners of substandard lots under ordinances which make no special concessions to such owners, and with the miscellany of problems which result from the application of setback, yard, and coverage restrictions to lots of various sizes and shapes. Where the setback provisions of the zoning ordinance, as app to app scant s ot, preven e exec i o a dwe ling ~o r asona e size, denial of a variance o Hermit some beneficial use o t e rbitra a c ricious.~s. Thus, where a 100- foot setback from the public way was required of an owner whose land was smaller than the setback required, all use of the land was denied and he was entitled 'to a variance.~s Where the application of setback regulations to the owner's corner lot limited the usable portion of. the land. to 11 feet, he suffered practical difficulty and was entitled to -a variance which would permit construction. of a building of reasonable size.n Setback regulations were said to impose practical di$iculties where they limited to 10 percent the usable portion of a triangular plot of ground. - A rear-yard requirement which prevents the construction of an addition to a warehouse in an industrial district, although the reduced yard will abut land owned by the warehouseman, imposes a practical difficulty upon the owner. A side-yard requirement which prevents . the use of a house _ constructed under a variance which wt. ; subsequently annulled was held to result in a practical difficulty ~i~hich warranted an area vari- ~~ requirements of the zoning ordinance when literal application of the ordi- nance deprived petitioner of all bene- ficial use of his land and unnecessary hardship was shown. Saravo Bros. Constr. Co. v Zoning Board of Review, 102 RI 442, 231 A2d 9 (1967). 24. ~ 9.49, supra. 25. Peterson v Vasak, 162 Neb 498, 76 IVR'2d 420 (1956). 27. Richards v Zoning Board of Ap- peals, 285 App Div 287, 137 NYS2d 603 (1955); Mandalay Constr., Inc. v Zimmer, 22 Misc 2d 543, 194 NYS2d 404 (1959) (lit.eral enforcement of set- back would result in 9-foot structure). 28. Re Fein, 67 NYS2d 218 (1946, Sup), affd 272 App Div 819, 72 NYS2d 264. 26. Kane :Zoning Board of Review, 29. VVuttke v Kramer, 140 NYS2d 196 A2d 42T (1964, RI). 214 (1955, Sup). 289 -.. ,,_ ,, § 18.54 AMF;ItICAN LAW OF ZUNING .. ance.'° An area variance permitting deviation from yard and lot- . area requirements .was sustained where the application of such restrictions to a lot of irregular shape and size had discouraged . its development for a quarter of a century." An area variance was warranted where the submachinegun shape of the lot made it `.`wholly impractical to build any kind of substantial struc- Lure."32 The clearest case of hardship due to the literal application of :zoning regulations is that of the subsfanda~hich cannot bemused-for an ur ose without relief from the restrict ions. et er the standard is practical di icu yes or unnecessary hardship, the applicant for a variance can satisfy it in a case of this kind." If the zoning regulations as applied to the land in issue result in sterilization of the land, there is a taking without due process of law. Not only may a board of zoning appeals grant an area variance to relieve the applicant, but it is required to do so.~' ~~ An applicant who shows that his land falls short of the minimum-frontage requirement of the zoning ordinance satisfies the requirement of practical difficulties or unnecessary hardship . and is entitled to a variance.' Similarly, the owner of a lot 30. Fulton v Board of Appeals, 158 NYS2d 434 (1956, Sup). Where the zoning ordinance would impose 5-foot side yard requirements on plaintiff's 25-fvot ~ti•ide lot, and the neighborhood was composed of many lots with homes providing for side- yards ranging from one to sixteen feet, and there was testimony that a fifteen foot wide home tivould have an adverse effect on the adjacent proper- ties, the ordinance was arbitrary as to plaintiff's land and she would be al- lowed to build with three foot side- yards in addition to other conditions. Ziman v Glencoe, 1 III App 3d 912, 275 NE2d 168 (1971). 31. Carlyle-Lowell, Inc. v Ennis, 330 StV2d 164 (1959, Mo App); Gougeon v Board of Adjustment, 54 NJ 138, 253 A2d 806 (1969). 33. Chater v Board of Appeals, 348 Mass 237, 202 NE2d 805 (1964); Feld- man v I~Tassau Shores Estates, Inc., 12 Misc 2d 607, 17`l NYS2d 769 (1958), affd 7 App Div 2d 757, 181 NYS2d 79. It is an abuse of discretion to deny an area variance to the owner of a substandard lot where permits have been granted,. with and without vari- ances, to a large number of lots in the same subdivision, notwithstanding the fact that the hardship was created by the applicant's grantor. Ozolins v Horn, 26 App Div 2d 555, 270 NYS2d 1001 (1966). 34. Peters & Whalen, Inc. v Schnet- zer, 194 NYS2d 333 (1959, Sup); Linc- ourt vZoning Board of Review, 201 A2d 482 (1964, RI); Denton v Zoning Board of Review, 86 RI 219, 133 A2d 718 (1957). 32. Baas v Zoning Board of Adjust- 35. Lessner v Zoning Board of Ap- ment, 403 Pa 155, 169 A2d 287 (1961). peals, 151 Conn 165, 195 A2d 4 ,7 ' 290 ,. ...~„~..~,.x .............}-,- .r-,..-, , rir~.~-Rte,,,,-v.,...._._ «_. ... .. ,, ... . , z ;. .,-- ~ ,, ~ ~,,,.. , -t~~~ ' Y,.„i1/ f ~ ~,.. .-~ .! _....,:~ --a -,.: <; : - T .~ ..••~f .d __ _...~ e ._:,~a ,,~ d _.~_• ~~ .Y . :. t -.- ..., , . i ~• ~. .,,_~ •~ ,. _ .., , ? i, = -~ - ~'+ _.. ~ ~~Y w~ 37. ~Veeks v Koehler, 134 NYS2d 796 (1954, Sup). 38. Hartsdale Station Shopping Center, Inc. v Liberman, 11 App Div 2d -1073, 206 NYS2d 699 (1960), revg 25 Misc 2d 684, 216 NYS2d 255. 39. Rodee v Lee, 14 NJ Super 188, 81 A2d 517 (1951). r Where plaintiff owned a single "lot" according to the provisions of the ap- plicable city code, and was denied a ~ lot-split variance that would establish i t~vo separate adjoining building sites ! of about 5,300 square feet apiece, it I was not an abuse of discretion by the city council since the comprehensive zoning ordinance provided. fora mini- mum single lot area of 7,500 square feet. Hill v I<•lanhattan Beach, 6 Cal 3d 279, 98 Cal Rptr 785, 491 P2d 369 (1971). Where the record indicated that ~ landowner acquired a tract consisting of .303 acres and a second adjoining , tract of .585 acres and there was an indication that construction of a 1 dwelling on the first tract would ag- ~ gravate an existing drainage problem which would tend to be injurious to , the neighborhood, landowners request f for a variance to permit such con- struction on the undersized lot was tt` properly denied by the zoning board t of appeals. Jenkins v Zoning Board of Appeals, 162 Conn 621, 295 A2d 556 (1972). Where substandard lot came under 291 ~. f t. }~~~ .~--..,-,.~. ... ._ ---- _ ~ ~ ,-,.~- .--.. - ~ ..~,._~,..,~.~,...~-,...~-T,,,. - VAKIANCES § 1.8.54 N,hich falls short of the minimum-area requirements,' or which cannot be successfully ,developed within the lot-coverage" or maximum-height requirements,~'N is entitled to a variance. Administrative relief is. not warranted where the owner of contiguous substandard lots can solve his own probletn by com- bining them to meet the minimum requirements of the coning regulations. In such a case, his development plans may have to be revised, and he may not be able to extract the maximum profit from his tract, but he has not been denied reasonable use of his land.39 (1963) (applicant's lot was 100 feet; the ordinance required 120 Feet); I;ryscnski v Shenkin, 53 NJ Super 590, 148 A2d 58 (1959) (applicant's frontage was substandard); Chasanoff v Silberstein, 6 I`'Y2d 807, 188 NYS2d 194, 159 I`'E2d 684 (1959) (applicant's lot lacked one foot of the required frontage); Fina Homes, Inc. v Thomp- son, 226 NYS2d 613 (1962, Sup) (ap- plicant's lot was 25 feet wide; the regulations required 40 feet); Land Purchasing Corp. of America v Grune- w•ald, 20 Misc 2d 175, 195 NYS2d 69 (1959) (applicant's lot was 40 feet; the regulations required 70 feet). A board of zoning appeals may grant a variance from frontage re- quirements where area requirements are satisfied and where two lots can be made to conform only by the crea- tion of.irregularly shaped lots. Willits v Schoepflir 46 '`list 2d 292, 259 NYS2d 294 (1964), a(Fd 23 App Div 2d 868, 259 NYS2d 297. An owner of a lot with frontage of 40 feet is entitled to a variance from the terms of an ordinance requiring frontage of 70 feet, even though the owner, subsequent to the passage of the ordinance, acquired an adjacent strip with frontage of 20 feet. Mos- chetti vZoning Board of Review, 102 RI 532, 231 A2d 783 (1967). 36. Mandalay 'Constr., Inc. v Eccle- ston, 9 App Div 2d 918, 195 NYS2d 84 11959); Poster Advertising Co. v Zon- ing Board of Adjustment, 408 Pa 248, • l82 A2d 521 (1962). § 18.54 AMERICAN I.AW OF 'CONING - A variance to permit development .of a substandard parcel . _ may not be denied solely on the ground that the, applicant had . an offer of purchase. Alandowner- has the right to develop his land; he is not required to sell it.'° However, an applicant is not entitled to a variance on a substandard lot .simply because the board of adjustment has granted such a variance to the owner of - a lot similarly situated and in the same .neighborhood." § 18.55. -Variance to rectify builder's error. ro ert owner who a lies for an area variance after constructing a building in violation o a zoning regu anon poses court. If the applicant is the victim of an error made by a builder or a surveyor, he presents a case which evokes sympathy. In addi- tion, the economic waste which will result if a portion of the building must be destroyed. to effect compliance is something which the board and the .court prefer to avoid. On .the other hand easy relief through a variance invites_£raud, or at least leaves a door afar through which variances of doubtful merit may enter to harm the .community plan. The courts give careful at en ion o variances which purport to relieve hardship due to the mistakes of the applicant or his agents.42 No relief is available t.o an applicant who is believed to have common ownership with adjoining landowner, it was improper to grant an area variance upon the subsequent unlawful subdivision of the parcel in a manner which violated area and width requirements. Vollet v Schoepflin, 28 App Div 2d 706, 280 NYS2d 950 (1967). A landowner has failed to demon- strate the practical difficulties prere- quisite to the granting of a rear yard variance where his land is split by a municipal boundary but where his property can be de~•eloped ~+~ithout offense to the zoning regulations of either municipality. Dudley Lawrence Corp. v Eisenberg, 24 NY2d 932, 301 NYS2d 993, 249 NE2d 769 (1969). 40. Kent County Land Co. v Zoning Board of Review, 216 A2d 511 (1966, RI). 292 41. Kenny Development Corp. v Kramer, 22 A4isc 2d ]22, 202 NYS2d 421 (1960). 42. See Fulton ,v Board of Appeals, 152 NYS2d 974 (1956, Sup). The hazard of evasion has been reduced by the decision of a New York court in Midgett v Schermer- horn, 24 App Div 2d 572, 262 NYS2d 269 (1965). The court held that where an owner accepted title with knowl- edge that an occupancy had been de- nied because the building violated side-yard restrictions, he was not enti- tled to an area variance on the ground of practical difficulties. This result was said not to be affected by the fact that the encroachment .vas caused b}~ a builder's error which had been Overlooked by the official who issued the building permit. ;~,_.. i .~~ ~f . ,,yard Parcel .,i,i,lic1nt had d~,~.elop his •-i::tnt is not ~' t,~tiause the .r~, o«•ner of ,~ _... r,i;tnce after ~~;ttion poses ;~;~ court. If --~:ilder or a ..• _ ;;~.. In addi- ~, -• iun of the +., <,•mething t,:; ;}~~ other .. at least ,,,,f~] merit ., ,.:~•r careful _,;,?;ip due to ;,•~j to have ~~,t Corp., v, .ti r? 1\ 1'S2d ,.,~ o~ ;appeals, ,:,~,. ,,. ., has been >..: of a I`~ew ~ S;hermer- . .~;2 `YS2d ~..; that where ~.,th knowl- . + ! ..d 1K•en de- ... ..,; ,::• violated `• • ~. not enti- n~.f-.•~ on the .'...:Itirs. This . « !.:gent was -- which had • ~•''.,cial vrho .. N:.t ti, VARIANCES § 18.55 violated an area restriction intentionally. Where, .for example, a landowner constructed a theater lobby which encroached a required side yard, on the assumption that. a variance would be granted, a Maryland court reversed the board's action in grant- ing relief.°' Where building plans showed no violation of setback, and .the applicant was warned when the offense became observa- ble .but declined to stop construction, denial of a variance vas upheld." A variance to relieve a builder's error will not be sustained when it_ i_ s cause y the builder's negligence. Thus, a variance of side-yard restr~ct~ons where the applicant. had made no survey t lines «~ere located, ~ti•as is~roved,45 and denial of a variance to permit si e-}'ar encroachments of %i inch, and 11 inches, was sustained.46 In each case, the court remarked that the difficulty complained of vas due to the applicant's carelessness and was, in effect, self-created hardship. In some instances, the courts simply require strict proof of 43. Park Shopping .Center, Inc. v Lexington Park Theatre Co., 216 Md 271, 139 A2d 843 (1958). li'hile a landowner is entitled to an area variance upon a showing of prac- tical difficulties, he is not so entitled where he has constructed a building in violation of a zoning ordinance, on a site where construction could have been accomplished in compliance therewith. Balsam v Jagger, 231 NZ'S2d 450 (1962, Sup): 44. Valicenti's Appeal, 298 Pa 276, 148 A 308 (1929); Kerr's Appeal, 294 Pa 246, 144 A 81 (1928). See also Berard v Board of .Adjust- ment, 138 S~V2d 731, (1940, 11o App). The board was without authority to grant a variance from a setback re- quirement where construction was be- gun by mistake in violation of the requirements. State ex. rel. Rabenau v Beckemeier, 436 SR'2d 52 (.1968, b1o App). A variance was properly denied where the applicant filed plr,ns which conformed to the zoning regulations but constructed buildings which var- ied materially from such plans, and which violated the regulations from which relief was sought. Stratford Arms, Inc. v Zoning Board of Adjust- ment, 429 Pa 132, 239 A2d 325 (1968). 45. Misuk v Zoning Board of Ap- peals, 138 Conn- 477, 86 A2d 180 (1952). Where o~+mers sought a side }•ard variance the contention that their un- awareness of the side yard require- ment and expense of conforming to the requirement after construction, with loss of aesthetic character of the home, were insufficient to entitle owner to grant of a side yard vari- ance. Boyd v Wilkins Board of Adjust- ment, 2 Pa Cm++~lth 324, 279 A2d '363 (1971). 46. Deer-Glen Estates v Board of Adjustment ~~ Appeal, 39 NJ Super 380, 121 A2d 26 (1956). Builder had no vested right. in a building permit issued to him to com- plete construction begun in violation of setback rc quirements by mistake. State ex rel. Rabenau v Beckemeier, 436 S~V2d 52 11968, i\4o App). 293 18.55 AMEI~ICA,N LAW OF CONING unnecessary hardship, and .decline .to give relief merely because " the error is very ~ma ," or t e cos an rncorivenience of * ~ is rat er rar Some courts have given relief where the good faith of the applicant was apparent and the offense to the ordinance ~;~as sma or arm ess. Thus, tie upreme Court of Pennsylvania • a rme a variance of a side-yard requirement where the viola- tion resulted from a mistake, and the building remained 38 feet from its nearest neighbor.°' A Rhode Island court upheld a variance to permit a 4-foot .encroachment into a required 15-foot • setback where the applicant, in good faith, was mistaken con- cerning the location of "a lot line.50 In New York, a builder secured a variance to .construct an applicant's home within 22 feet of the rear lot line, the requirement of the regulations being a 25-foot rear yard. He proceeded to construct the home 16.5 feet from the line. When the owner of land to the rear of applicant's " property demanded X10,000 for a strip sufficient to bring appli- cant into compliance with .the regulations, a variance was sought. The board refused, but the court reversed, f nding practi-. _ _ cal difficulty in the applicant's uncomfortable position bet«-een the builder's error and the neighbor's avarice.s' . § 18.56. pelf-created hardship. In most jurisdictions, an applicant whose problems in the use _. ?R . y. .Qf his land are caused by his own conduct, rather than by ircumstances which are peculiar y reTat.ed t.o die ]an is not entitled to an area ~~ariance. The courts of these states apply t.o •ea variances the self-created hardship rule «~hich has been discussed in an earlier section dealing with use variancess2 As in 47. I`Teithamer v Hayer, 39 Ohio App 532, 9 Ohio L Abs 441, 177 NE 925 (1931) (encroachment of .15 feet). 48. Place v Board of Adjustment, 42 NJ 324, 200 A2d 601, 7 ALR3d 1434 Q964) (fallout shelter). 49. Moyerman v Glanzberg, 391 Pa 387, I38 A2d 681 (1958). 50. De Felice v Zoning Board of Review, 189 A2d 685 (1963, RI). 51. Badish v O'Regan, 212 NYS2d 632 (1961, Sup). Where a property owner has con- 294 structed a building in good faith but in violation of area restrictions, and where refusal to grant a variance will deprive the owner of soil-erosion pro- tection and injure the value of the building, the beard should grant an area variance. Friend v Feriola, 35 Misc 2d 250, 230 NYS2d 783 (1962), affd 23 App Div 2d 822, 258 NI'S2d 807. 52. § 18.43, supra. The substantial hardship conclusion reached by the trial court was found, ' ~ of. ~ . c ~. ,.. , ,' )' ..~ • .~. ~~f the ., .. _.~r .t_ w:!S - s' ,a •.. ~,.~.~1113 ..,,~.. t .t'1=' - i- " .,.~ . . ti. ;) _ :•+`~"' ..,, ~ :'. ', ~~ci .. 1,~. ~. +. ... r•~l ,.. .~ . , ... .S.' ; n ,_S, ..,, ::c.a ,,.II ~ r_.. . • _ _~ •~ : ~ iy . y - .... .. , ~} , -.. . _... ...t i VARIAI`'Cf';S § 1 R.:~6 the case of use variances, a person who purchases land ~~~ith knowledge of zoning restrictions is not qualified to receive an area variance which relieves him of such restrictions.53 Aland- o~c-ner who negligently improves his land in violation. of a yard res roc don crew es own ar s tp and may not obtain relief t ou an area variance waivin the restrictions as try apply to his land.sa Hardship is self-created and not. curaT~le through ' Ice rocedures where a landowner commences or continues construction of an improvement which violates the zoning regu- on review, to have no support in the record where plaintiff-developer made his land investment in full knowledge of the zoning limitation requiring large residential lots. Such hardship was self-inflicted. Nopr.o Co. v Cherry Hills Village, 180 Colo 217, 504 P2d 344 (1972). A variance was improperly granted to an individual who constructed. a building designed for the sale of alto- holic beverages within 500 feet of a similar 'building, ,conduct proscribed by the zoning ordinance, because the hardship was self-created. M. & R. Enterprises, Inc. v Zoning Board of Appeals, 155 Conn 280, 231 A2d 272 (1967). The mere fact that plaintiff-pur- chaser, seeking a variance to permit construction of an 88-foot high office building in a district limiting building heights to 40 feet, purchased.a vacant lot- for more than the lot was worth did not establish a hardship in rela- tion to the present zoning. Plaintiff- purchaser was aware when it pur- chased the lot that the city zoning restrictions prohibited the construc- tion of any building over 40 feet in height. Reichard v Zoning Board of .Appeals, 8 Ill App 3d 374, 290 NE2d 349 (1972). Where applicant for an area vari- ance bought the .property in full awareness of the existing zoning regu- lations, he was barred from favorable consideration. Marrone v Kalin, 14 Pa Ctma•lth •242, 322 A2d 150 (1974). 53. where owner who purchased lot had full knowledge of its nonconform- ing dimension, evidence supported de- nial of permit to build a home on undersized lot, absent a showing of sufficient evidence that property was purchased in reliance on suggestion of city administration. C & W Homes, Inca v Livonia Zoning Board of Ap- peals, 25 >\lich App 272, 181 Nw2d 286 (1970). The zoning board of adjustments abused its discretion in granting an area variance to allow the construo- tion of an apartment house with more floor space, on evidence that a smaller apartment house could not be built profitably and where the owner pur- chased the land with knowledge of the regulations. O'Neill v Zoning Board of Adjustment, 434 Pa 331, 254 A2d 12 (1969). 54. 114isuk v Zoning Board o. Ap- peals, 138 Conn 477, 86 A2d 180 (1952); Deer-Glen Estates v Board of Adjustment & Appeal, 39 NJ Super 380, 121 A2d 26 {1956). where a corporation builds a house five feet from the side line of the lot, while the applicable zoning ordinance requires a minimum sideyard of ten feet, relief by means of a variance is not available because the hardship is self-inflicted. Highland Park, Inc. v Zoning Board of Appeals, 155 Conn 40, 229 A2d 356 (1967). 295 VARIANCES §.18.56 f ~,,ti;truction ' -::nit is self- { ~~ ; st the rule - .~ faith ,: •a • h ..~.,.,_,~;~y and _-..i gill not "' ,, ~, c;~rport ,,.t ~. -,;,r to the ::~.~ :-n ;area .~ _,_~ .tj~;gest ~ , _. ~ 1ri.l t~~e ~S ~, : . ,~ :' ~: F:IlU~~'1- - , :,:rt from -- :,;,i,lica- . _ } .. ~ ~ :.,.,,~•~• of . F , , ,~'• rif;ht . :.~~ t !..~c~~~ltip ;.::irirk}t ...a l` lii d~, . ...,.:. ~ . ': J ,... :3 ':a . ,......~ 1t. ,-~! - ~ ...w-. ~ ~~ ~ t.... .. :,... .:,1 ! hr The New York courts have a fully def ned position which, like their rule permitting proof of practical difficulties in lieu of unnecessary hardship in support of area variances; is not widely accepted. Prior to Broiixville,e2 it was assumed by the New York courts that the self-created. hardship rule, which limits the granting of use variances,' applied equally to area variances.~° But Bronxville removed the requirement of hardship, and the limitation which proscribed the granting of a Variance on the ground of aself-created hardship vas held not to apply to area variances. Accordingly, a person can buy a lot with full ktlowl- edge of the zoning restrictions and still qualify for a variance to avoid the restrictions, provided he can s}1ow practical diflicul- ties.`~ Similarly, in New York, a landowner can construct an affected property does. not preclude assertion of "practical difficulty" by an applicant for an area variance. 1~IcLean v Soley, 270 :~1d 208, 310 A2d 783 (1973). ~'Vhere landowners subdivided their land into two parcels with 125' and 125.1' parcels respectively after the passage of a zoning amendment re- quiring 150' parcels, they were not entitled to a variance on the ground that their hardship was self-created. Slawson v Zoning Board of Review, 1.02. RI 552, 232 A2d 362 (1967). 62. Bronxville v Francis, 1 App Div 2d 236, l50 NYS2d 906 (1956), affd 1 NY2d 839, 153 NYS2d 220, 135 NE2d 724. This case, and the New- York rule established by . it, are discussed in § 18.47, supra. 63. § 18.43, supra. 64. Stevens v Connor, 120 NYS2d 345 (1953, Sup). 65. Gruen v Simpson; ]53 NYS2d 287 (1956, Sup), affd 3 App .Div 2d 841, 161 NYS2d 843; Ryan & Gable, Inc. v ASontesano, 36 AD2d 680, 319 NYS2d 770 (1971); Ozolins v Born, 26 App Div 2d 555, 2~0 NYS2d 1001 (1966 ). A variance from minimum frontage requirements may be granted al- though the applicant purchased the property with knowledge of the prob- lem. Conley v Brookhaven Zoning Board of Appeals, 49 App Div 2d 567, 370 NYS2d 182 (1975). It is within the discretion of a board of zoning appeals to grant an area variance to a landow•nerwho acquired the property with knowledge that it was substandard. The fact that practi- cal difficulties are self-created does not foreclose the granting of an area variance in an appropriate case. Re Application of Young, 42 App Div 2d 833, 345 NYS2d S12 (1973), affd 35 NY2d 662, 360 NYS2d 640, 318 NE2d 796. 66. See 293 North Broadway Corp. v Lange, 282 'App Div 1056, 126 NYS2d 374 (19531; Leone v Yates, 280 App Div 823, 113 NYS2d 915 U.952); Stadden v ?1lacauley, 12 Misc 2d 297, 178 NYS2d 954 (1956), affd 4 App Div 2d 704, 164 N1"S2d 1004. A board of zoning appeals has not abused its discretion where it granted a variance from the lot width require- ment of the r.oning ordinance, for a lot which met the area requirement, notwithstanding the fact that the ,ap- plicant's difficulty was self-created. Applicant denumstrated significant ec- onomic injury by proving the lot could be sold for X16,000 with the 297 • § 18.56 AMERICAN LAW OF ZONING ._ improvement and get an area variance which validates it, al- . though he has created his own difficulties within the meaning of the self-created hardship cases.e7 Although a landowner seeking an area variance in New .York is not foreclosed by the self- created nature of his difficulties, purchase of land with knowl- edge of the restriction which he seeks to avoid is a material consideration in determining iti~hether he will be granted relie£~ ' Denial of .an area variance on the ground of self-created hard- . ~ ship will be sustained if it is not otherwise unreasonable. variance, but only half that amount without such relief. Sarant v Zoning Board of Appeals, 39 App Div 2d 711, 331 NYS2d 856 (1972). Where ordinance provision required a lot area of 6,000 square feet, owner of property at the time of enactment of the ordinance with lot area of 2,500 square feet had a vested right to a nonconforming use, and upon transfer of the property the contract vendee became entitled to an area variance. Bexson v Board of Zoning & Appeals, 28 App Div 2d 848, 281 NYS2d 569 (1967), affd 21 NY2d 961, 289 NYS2d 990, 237 NE2d 239. - - 67. Gapinski v Zoning Board of Ap- peals, 3 App Div 2d 976, 162 NYS2d • 945 (1957), app dismd 3 NY2d 920, t'~ 167 NYS2d 936, 145 NE2d 878. 68. Petitioner had. purchased the property several months prior to the • area variance application; the prop- erty when purchased had the same • topography and it was subject to the _ same zoning ordinance. Thus, any financial hardship in complying with the zoning restrictions was voluntar- ily assumed by petitioner. Although this factor does not completely pre- - ~ elude a property owner from seeking an area variance, it is a material consideration if such variance is sought. Designer Homes, Inc. v City Council of Yonkers, 36 AD2d 836, 321 NYS2d 688 (1971), citing Anderson, - American Laws of Zoning. 69. A zoning ordin: ice, enacted in 1960, required a minimum of 100 feet frontage and a minimum of 10,000 square feet for lots in a residence B zone. Petitioner's property had less than half the frontage, but it had 16,675 square feet. This substandard lot was created by a deed to petitioner in 1965 from a portion of a larger lot. The grantor had been the owner of the larger lot at the time the ordi- nance was adopted in 1960;.but the ordinance limiting frontage had long been in force when she created the substandard lot in 1965. In such a situation of self-created hardship, a variance is not mandated. The eco- nomic loss is not controlling. Cherry Hill Homes, Inc. v Barbiere, 28 NY2d 381, 322 NYS2d 225, 271 NE2d 211 (1971). Zoning board denial of an area vari- ance in cases of self-created hardship will not be overturned where it ap- pears the denial was based on efforts to preserve the character of the neighborhood and thus was not arbi- trary or capricious. Work v Delany, 36 App Div 2d 819, 321 NYS2d 526 (1971). Where a conditional vendee know- ingly purchased a substandard sized parcel of land for 82,000.00, the de- nial of his application for an area variance on the grounds of a self-im- posed hardship (illegal subdivision) and a failure to show economic loss or hardship was neither arbitrary nor capricious. Klevan v Volz, 67 Misc 2d. 196, 323 NYS2d 866 (1971). 298 -++*° ,_ ~,~ , ~d ~. •ltcs it, al- .~•• ' ~,_~ •" ~~ ~ seeking c .~,,'?,. ~+ the self- .; ~~)' "~ t ri t~ a. ~~""" •~terial . ul ? :1 In• ~•~~' , d relief. .d hard- . ., .;t. .; -'•',' T _ ,r lt?0 Ceet :. - :~ ~, ~" . ~ f lu,oo0 .. • .~,,u:rnCC B ~• . •-- .., .~rl:~.r ]c,t. . ... . ~ , ..,,c•r of •....- hu; the ~<- _ .. . - _~•~ ~>~,~=.t the . ... ~ s 1. I., I,• ,+ ... .~ .. .. . ~ 1 ?lr 1'l i1 .. .. -r-i. ... t. ~~ ~. I ..17 -i r~. t '.l...L~::11 ..._1 .._ ,. ., ai, .- .. r, ,.. ., ... ~,! tlw f . . ! t ~!o ._ ... .. .~.I a VARIANCES § 1$.57 § 18.57.,-Sale resulting in substandard lot. Although there is some division of opinion as to. whether the self-created hardship rule should be applied in .area variance cases,70 there is general agreement that a variance may not be granted to the owner of a substandard lot where such lot was created by the deliberate conduct of the applicant. Thus, the owner of a lot with frontage of 100 feet may not sell a 56-foot portion of it and avoid a 50-foot frontage requirement by obtain- ing avariance to build on. the remaining 44-foot lot." An owner of three lots which combine to meet the zoning restrictions is not entitled to sell the center lot and develop the substandard remainders under area variances.72 An area variance may not be granted to solve the problem of an applicant who subdivided. his land and sold portions of it, retaining a substandard lot,'' who wishes to subdivide a lot to create both a standard and a substandard lot," or who proposed to divide his property into 70. § 18.56, supra. 71. Board of Zoning Appeals v ~ Waskelo, 240 Ind 594, 168 NE2d 72 (1960). ~~'hen a zoning ordinance sets a minimum frontage and a property owner reduces his property so that it does not meet the frontage require- ment, he is not entitled to relief. Ol- sen v Hopkins, 288 D'Iinn 25, 178 Nw2d 719 (1970). An extensive area variance granted to an applicant who created his own hardship by selling off portions of a parcel will not be sustained where the • record is devoid of evidence showing that no other use could be made of the property and that the variance granted was the least that could ena- ble practicable use of the land. Steele v Shultz, 40 App Div 2d 1027, 339 NYS2d 1S5 (1972). An area variance may be denied when a substandard lot is created by the owner through a sale of part of • the frontage. Baumhofer v Ullrich, 20 App Div 2d 751, 247. NYS2d 251 (1964); discussed in Anderson, Local Government, 1964 Survey of NY Law, • 16 Syracuse L Rev pl60 (1964). The fact that an applicant for. a variance from an 85-foot ,.•idtl-c re- quirement divided his property .into tw•o lots of 73 and 85 feet respectively, because he wanted to get as much as he could out of property that had been willed to him, was not sufficient to justify a variance. Campbell v Ughes, 7 Pa,Cmw•lth 98, 29S A2d 690 (1972). A landowner subdivided his prop- erty in such a manner as to create a substandard lot which he gave to his son. Under these circumstances, the son is not entitled to a variance re- gardless of his participation in or knowledge of the subdivision scheme. Baldwin v Bench, 11 Pa Cmwlth 410, 315 A2d 911 (1974). 72. Ardolino v Board of Adjustment, 41 NJ~Super 582, 125 A2d 543 (196), revd on other grounds 24 NJ 94, 130 A2d 847. 73. Russell v Board of Adjustment, 31 NJ 58, 155 A2d 83 (1959); ~'olpe's App=aal, 3S4 Pa 374, 121 A2d 97 . (1956). ?4. Bierce v Gross, 47 NJ Super ?_49 ....... ~,1,..... -.,_.._. t I:,nd. "''~ ~ .:~, Fi .."~ .. . ~ t}iis a-~'' ,-; u,n .- ~~ .~:~ ., t~~r .: i-~'K .. ~~ e , y,`,: i' . .. ~.>::r .. ~~ ..~ f . ~ t:r - ~~ . ~:~~ ~... -.err ~ ~,. :.,, .~ . _ .. .; -!: ' .; :, ., ~ . _ ,., . ...__. t ;t. VARIANCF,S § Y8.57 from an owner who was ,entitled to a variance may sell one lot and obtain a variance for the other."2 In New York, where the self-created hardship rule does not apply generally to area variances,"' the courts have disapproved the granting of relief to the owners of substandard lots, where such lots were created by the deliberate conduct of the appli- cant. Thus, a person can purchase a substandard lot and get a variance .to permit its -use, but he cannot create a substandard -lot by .selling a portion of his land and obtain relief on the ground that he is suffering practical difficulty due to the zoning regulations.A° This limited application of the self-created hard- ship rule also. applies to an applicant wllo prepares and obtains approval of a subdivision plat which includes a substandard lot that adjoins a parcel large enough to supply the land necessary to effect compliance with the zoning regulations."5 s~ 82. Ardolino v Board of Adjustment, 24 NJ 94, 130 A2d 847 (1957). 83. § 18.56, supra. 84. Chasanoff v Silberstein, 6 NY2d 807, 188 NYS2d 194, 159 NE2d 684 (1959); Kenny Development Corp. v Kramer, 22 b'lisc 2d 122, 202 NYS2d 421 11960). Plaintiff owned a parcel of land measuring 100 feet by 100 feet; zon- ing restrictions in force at the-time of purchase required a minimum of 7,- 000 square feet of lot area for each dwelling. The parcel consisted of two lots, one of which had been improved by the construction of a dwelling on 6,000 square feet, a standard lot at that time. In an action for a judgment declaring the area restriction uncon- stitutional insofar as it prer•ented the subdivision of the pat•cel into two lots, the court sustained the ordinance. Plaintiff was cognizant of the restric- tion when he purchased the land, and the development on substandard lots would injure a well deve]oped neigh- borhood. Rowe Street Associates, Inc. v Oyster Bay, 2? NY2d 973, 318 NYS2d 502, 267 NE2d `L77 i 1970). An owner decided to subdivide in such a way as to create nonconform- ing parcels, and then sought an area variance. The character of the neigh- borhood justified the denial of the variance and the owner did not sus- tain any undue economic or financial loss. Krehely v Board of Appeals, 35 AD2d 974, 3l? NYS2d 980 (1970). 85. Johnson v'\loore, 13 App Div 2d 984, 216 NYS2d 740 11961). Plaintiff had subdivided his land, selling part and retaining a lot so small as to render development im- practical within the setback require- ments of the zoning ordinance. His application for a variance was denied, on the ground that nothing in~Fullin_. v Palumbo, 21 NY2d 30, 286 NYS2d 249, 233 NE2d 272 (1967), required the conclusion that a constitutional right was denied where a landowner subdivided and sold off portions of his land, retaining a lot incapable of de- velopment within tine zoning regula- tions. Contino v Hempstead, 27 NY2d 701, 314 NYS2d 15, 262 NE2d 221 (1970). A determination denying an appli- cation for an area variance will be sustained where, as here; it appears that the substandard condition re- sulted from t e owner's own act. 'T'here is nothing in the record to 301 -i ' ~. :1.$.57 AIVII,;RICAN LAW OF LUNING An applicant is not entitled to a variance to permit division of _ a parcel into six substandard lots where he purchased .the parcel after a variance had been denied. Commenting upon the refusal of a board to grant such a variance, a I\?ety York court said that either the applicant's difficulties were anticipated, and an appro- - priate adjustment made in the purchase price, or the applicant ' was suffering from his own improvidence ~ ' i ~ .. I § 18.58. Unique circumstances. In determining the validity of area variances, the question whether hardship is due to circumstances which are peculiarly related to the applicant's property, or t;o conditions shared by other land in the neighborhood,87 arises infrequently. Such vari- ances commonly are. sought to obtain relief from problems peculiarly associated with the size, shape,. and existing improve- ment of the applicant's land, and not shared by other property in the neighborhood or area. V~'here the problem does arise__it is held that a variance .may be granted only for hardship which relates specifically to the applicant's land."~ Thus, a lando~i-per negate the finding that the character of the neighborhood justified the de- nial of the variance. Work v Delany, 36 App Div 2d 819, 321 NY52d 526 (1971). 86. Spano v Baldwin, 214 NYS2d 780 (1961, Sup).. - Where petitioners purchased addi- tional land for parking purposes, after having been previously ordered to re- move their retail stores from the premises because they had been con- structed under an 'illegally issued per- mit and may have failed to comply with the parking requirements of the ordinance, their subsequent applica- tion for an area variance was denied because any hardship suffered was self-created. Sherman v Gustafson, 28 App Div 2d 1082, 285 NYS2d 255 (1967), affd 22 NY2d 793, 292 NYS2d 896, 239 NE2d 641. Practical difficulty is not demon- strated where the lot became substan- dard due to condemnc~Hon of a por- tion of it by the state, rut the o«•ner received an amount equal to the 302 value of the portion taken plus conse- quential damages for injury to the part that «ss left. Acierno v Barr, 28 App Div 2d 541, 279 NYS2d 601 (196?). 87. §§ 18.33 et seq., supra. 88. 1i'here the statute clearly di- reefs the zoning board to consider only conditions, difficulties or unusual hardship peculiar to the parcel of land which is the subject of an appli- cation for a variance, and there has been no showing of any conditions peculiar to the land, the application must be denied. H}~att v Zoning Board of Appeals, l63 Conn 379, 311 r12d 77 (19721. Mere findings which described the size, area, present use, and purchase price of the pruperty in question and stating the plight of the-owner to be due to unique circumstances, and that a variaiion would not alter the essen- tial character of the locality, «ere insufficient to form a basis for grant- ing a variance permitting constrvc- i :. .,,;: of ~F. ,. 1 ter.-. r '.-1 r`~ . _~ :,. . ,, _ . ;~:.ut ..t .1~ ,_ t.. i ~. • - ~ :+' 1' .. .•.. r. ;! ;, --. 's ~• ~ ::~•r - ~ ~ ~. _. ' ... : t ... -.± ''.'1 .., ~ : < . . .~ t .... .. . r .... ..~ ~-:~r nl\cls § 1.$.58 was not entitled 'to a •~~;-.:•i:~nce to relieve •his land from a restriction which applied t~ all lots of similar size."y A variance to permit a liquor store ~~ ithin prohibited distance of another such store may not be gr ;zted without proof of circumstances particularly .related to the land of the applicant." ~'~'here appli- cant's proof demonstrates that an entire neighborhood. may be unjustly affected by a zoning restriction, such circumstances are not unique and will not sustain an area variance."' T ie .circumstances which must be proved to «rr{.rrant adminis-. tratiue rl•11nf arP thn~e rel;~ted to the peculiar s~ uatton of the applicant.9L Commenting upon an application for a ~ ariance to tion of an 88-foot high office building in a district limiting building hc~i•~hts to, 40 feet. Reichard v Zoning Board of Appeals, 8 Ill App 3d 374, 290 NE2d 349 (1972). The phrase "unique circumstances" as respects a variance from the zon- ing ordinance is not to be construed as "unique hardship," as though t}sere were a requirement For proving s~~me- thing-more severe than an "unnr~ces- sary hardship" resulting to the prop- erty. Beatrice Block Club Asso. v Fa- cen, 40 Mich App 372, 198 N~V2d 828 (1972). An area variance of the set-hack requitement was denied where the applicant did not establish that the hardship, due t.o the topography of the property, was unique or peculiar to the property. ilSarrone v Kalin, 14 Pa Cmwlth 242, 322 A2d 150 (1974). 89. See `ScGavin v Zoning Board of Appeals, 26 Conn Supp 251, 217 A2d 229 (1965). tVhere nothing in the record re- vealed that the property in question, as devised to applicant, was- affected by the 85-foot lot ~-idth requirement differently from any other lot on the road, and applicant did not show that the width requirements uniquely af- fected him, the lot width requirement did not inflict an unnecessary h~rrd- ship upon applicant's interest in the property. Campbell v Ughes, 7 Pa Cmwlth 98, 298 A2d 690 (1972). 90. Cymerys v Zoning Board of Ap- peals, 151 Conn 49, 193 Aid 521 (1963); Benoit v Zonir;g Board of Ap- peals, 148 Conn 443, 172 A2d 71 (1961). 91. Deardorf v Board of Adjustment of Planning & Zoning Com., 254 Iowa 380, 118 N~V2d 78 (1962). 92. Appeal of Fred Jones Co., 203 Okla 321, 220 P2d 245 (1.950). Compare Perri v Zoning Board of Appeals, 283 App Div X18, 128 ti~'S2d 774 (1954). The predicament of property lead- ing to a grant of variance on the ground it has unique characteristics preventing reasonable use of it as zoned must be due to "unique circum- s±ances" and not to the genera: condi- tions in the neighborhood; this does not mean that only a single owner- ship parcel of land be affected by unique circumstances in the neighbor- hood in order to qualify for relief, i.e. the "unique circumstances" may af- fcct land having two owners rather than one. Beatrice Block Club .Asso. v Facen, 40 Mich App 372, 193 \~~'2d 32S (1972). Changes in lot si~.es are specifically provided for but they are limited to "unique, .unusual or peculiar circum- s*.ances." These circums;.ances must arise out ~f conditions inherent in the land that distinguishes it from other 303 •PDRCHAS~ AGREE~IEAIT Dated as of f~- - ~ - - - - _, 1983 between THE PDLIS RAId.CH, a Colorado limited partnership as Seller and TOr+~AI OF VAIL, COLORADO, a Colorado manicipal corporation as Purchaser 2/14/83 PIIRCHASE AGREB~'iERIT Dated as of ---~----~-, 1983 between THE PDLIS RANCH, a Colorado limited partnership as Seller and TOi~TN OF NAIL, COLORADO, a Colorado municipal corporation as Purchaser 2/14/83 r -PDRCHASE AGREBE4SNT Dated as of ---~---- , 183 betc~een THE PDLIS RANCH, a Colorado limited partnership as Seller and TO-dN OF HAILo COLORADO, a Colorado municipal corporation as Purchaser 2/14/83 PQRCHASE AGREEMENT Dated as of ~--~----~-, 1983 between THE PI7LIS RANCH, a Colorado limited partnership as Seller and TOWN OF j1AIL, COLORADO, a Colorado ffiunicipal corporation as Purchaser 2/14/83 FDRCHASS AGREE~EA7T Dated as of -------- -8 1983 between THE PDLIS RANCH, a Colorado limited partnership as Seller and TOtVid OF SIAILo COLORADO, a Colorado x~unicipal corporation as Purchaser 2/14/83 PIIRCHASE AGRESt~EA1T Dated as of ---~----~-D 1983 between THE PIILIS RANCH, a Colorado lis~ited partnership as Seller and TOWR1 OF NAIL, COLORADO, a Colorado municipal corporation as Purchaser 2/ 1 4/8 3 PQRCHASB AGREB~'lBNT Dated as of ---~---- -, 1983 between THE POLIS RANCH, a Colorado limited partnership as Seller and TOWN OF MAIL, COLORADO, a Colorado ~anicipal corporation as Purchaser 2/ 1 4/8 3 Section 14.2. Waiver. No waiver of any event of default hereunder shall extend to or affect any subsequent or any other event of default then existing or impair any rights, powers or remedies consequent thereon. Section 14.3. Severability. In the event any one or more of the provisions contained in this Deed of Trust shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision of this Deed of Trust, but this Deed of Trust shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein. Section 14.4. Successors and Assigns. This Deed of Trust shall be binding upon the heirs, successors and assigns of the respective parties hereto. Section 14.5. Governing Law. This Deed of Trust shall be construed, enforced and governe in accordance with the laws of the State of Colorado. erection 14.6. Gender,. As used herein, the singular shall include the plural, the plural includes the singular, words of one gender shall include another gender. Section 14.7. Amendment. This Deed of Trust shall be amended only by an instrument in writing signed by the party against whom enforcement is sought. However, in the event any provision hereunder conflicts with the applicable laws, such provision shall be deemed to conform thereto. ATTES'T' GRANTOR: TOWN OF VAIL, COLORADO, a Colorado municipal corporation Town Clerx By: Town Manager By Mayor BENEFICIARY: THE PULIS RANCH, a Colorado limited partnership By: Jay B. Pulls, Jr., a general partner By: Warren Kamer Pulls, a general partner -6- - VAIL,yCOLORADOV("PURCHASER") DATED ' Recorded at o'clock Reception No. M., 1983 Recorder. THIS DEED, hfade this day of 19 83 between THE PULIS RANCH, a Colorado limited partnership of the Count}• of Eagle and State of Colorado, of the first part, and TOWN OF VAIL, COLORADO, a Colorado municipal corporat whose legal address is C~O Town Manager, Mun-icpal Building Vail, Colorado 81657 of the County of Eagle and State of Colorado, of the second part: WITNESSETH, That the said party of the first part, for and in consideration of Ten Dollars ($10.OQ) and other good and valuable consideration DOLLARS to the said part y' of the first part in hand paid by said party of the second part, the receipt whereof is hereby confessed and acknowledged, has granted, bargained, sold and conveyed, and by these presents does grant, bargain, sell, convey and confirm, unto the said party of the second part, its~uea§,~~s~igns for- ever, all the following described lot or parcel of land, situate, lying and being in the County o! Eagle and State of Colorado, to wit: See Exhibit A attached hereto and incorporated herein by reference (the "Property") to be used in perpetuity for a public golf course or open space or park for the benefit of the public and only such other related support facilities required for those purposes and if all or any part of the Property shall not be so used, then all of the right, title and interest in and to all of the Property shall revert to Grantor, its successors and assigns. also known as street and number TOGETHER with all and singular the hereditaments and appurtenances thereto belonging, or in anywise apper- taining, and the reversion and reversions, remainder and remainders, rents, issues and profits thereof, and all the estate, right, title, interest, claim and demand whatsoever of the said party of the first part, either in law or equity, of, in and to the above bargained premises, with the hereditaments and appurtenances. TO HAVE AND TO HOLD the said premises above bargained and described with the appurtenances, unto the s ccessprs. said party of Cfle second part, itS ~e•+rs arld assrgns forever. And the said party of the first part, for it sal f ~ 1 ~S Su CCOrS a~1 da~s~S ns ei~s~~ efs,-aru A ~~rs, does covenant, grant, bargain, and agree to and s~ccess~rs. with the said party of the second part, its c+rxc.an assrgns, that at the time oC the ensealing and delivery of these presents, it iS well seized of the premises above conveyed, as of good, sure, perfect, absolute and indefeasible estate of inheritance, in law, in fee simple, and hag good right, full power and authority to grant, bargain, sell and convey the carne in manner artd form as aforesaid, and that the same are free and clear from all former and other grants, bargains, sales, liens, taxes, assessments and encumbrances of whatever kind of nature soever., except easements, covenants, restrictions, reservations, rights-of- way or record and the above bar ained premises in the quiet and peaceable possession of the said party o(the second part, success s itS i~errs an~assigns against all and every person or persons lawfully claimingor to claim the µ•hole or any part thereof. the said party ofthe first part shall and will WARRANT AND FOREVER DEFEND. IN tl'ITNESS tti'HEREOF, the said party of the first art has hereunto set its hand and seal the day and year first above written. ~HE PULIS RANCH, a Colorado limited partnership By ~-a - - EE ' Y., a-general p3Y~ner B (SEAL) arren er u s, a genera Partner _ _ (SEA L1 STATE OF COLORADO, ss. County of Tht~ foregoing instrument was acknowledged before me this day of Is83 .b>•Jay B. Pulis, Jr. and Warren Kamer Pulis, general partners of ~1~ commission expires , ]9 .Witness my hand and official seal. Notary Public Address: i II * The Pulis Ranch,-a Colorado limited partnership No. 932 WARRANTY DEID.-Poi P6oto~r~pblc Reeord- Bradford Publisbing.3tl2S W.6rb Avg.. LakcWUUd. GU N0?I.1 - (!0)1 :)7-6400- 4-RI d~-j Section 14.2. Waiver. No waiver of any event of default hereunder shall extend to or affect any subsequent or any other event of default then existing or impair any rights, powers or remedies consequent thereon. Section 14.3. Severability. In the event any one or more of the provisions contained in this Deed of Trust shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision of this Deed of Trust, but this Deed or Trust shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein. Section 14.4. Successors and Assigns. 'T'his Deed of Trust shall be binding upon the heirs, successors and assigns of the respective parties hereto. Section 14.5. Governing Law. This Deed of Trust shall be construed, enforced and governe in accordance with the laws of the State of Colorado. Section 14.6. Gender. As used herein, the singular shall include the plural, the plural includes the singular, words of one gender shall include another gender. Section 14.7. Amendment. This Deed of Trust shall be amended only by an instrument in writing signed by the party against whom enforcement is sought. However, in the event any provision hereunder conflicts with the applicable laws, such provision shall be deemed to conform thereto. ATTEST: GRANTOR: TOWN OF VAIL, COLORADO, a Colorado municipal corporation Town Clerk By: By. By. gown Manager Mayor BENEFICIARY: THE PULIS RANCH, a Colorado limited partnership Jay B. Pulls, Jr., a general partner By. Warren Kamer Pulls, a general partner -6- VAIL,}COLORADOv("PURCHASER") DATED ' Recorded at o'clock M., Reception No. - 1983 Recorder. THIS DEED, Made this day of By~ay~s. ;3ui~~r. ,- a general p3Ytn)er B (SEAL) arren er u s, a genera Partner -. -(SEAL) between THE PULIS RANCH, a Colorado limited partnershil of the County of Eagle and State of Colorado, of the first part, and TOWN OF VAIL, COLORADO, a Colorado municipal corporat whose legal address is C~O Town Manager, Municipal Building Vail, Colorado 81657 of the County of Eagle and State of Colorado, of the second part: WITNESSETH, That the said party of the first part, for and in consideration of Ten Dollars ($10.OQ) and other good and valuable consideration DOLLARS to the said part y of the first part in hand paid by said party of the second part, the receipt whereof is hereby confessed and acknowledged, has granted, bargained, sold and conveyed, and by these presents do gg grant, bargain, sell, convey and confirm, unto the said party of the second part, its~uea~~~s~igns for- ever, all the following described lot or parcel of land, situate, lying and being in the Count}• of Eagle and State of Colorado, to wit: See Exhibit A attached hereto and incorporated herein by reference (the "Property") to be used in perpetuity for a public golf course or open space or park for the benefit of the public and only such other related support facilities required for those purposes and if all or any part of the Property shall not be so used, then all of the right, title and interest in and to all of the Property shall revert to Grantor, its successors and assigns. also known as street and number TOGETF3ER with sil and singular the hereditaments and appurtenances thereto belonging, or in anywise apper- taining, and the reversion and reversions, remainder and remainders, rents, issues and profits thereof, and all the estate, right, title, interest, claim and demand whatsoever of the said party of the first part, either in law or equity, of, in and to the above bargained premises, with the hereditaments and appurtenances. TO HAVE AND TO HOLD the said premises above bargained and described with the appurtenances, unto the s ccess~rs. said party of the second art, itS rs art assigns forever. And the said party of the first part, for it sal f ~ its succors aft ~a~su ns ei~sr-e•x 9F6~-AR( a c~zters, doe3 covenant, grant, bargain, and agree to and s ccess~rs. with the said party of the second part, its ~icvss_an assigns, that at the time of the ensealing and delivery of these presents, it is well seized of the premises above conveyed, as of good, sure, perfect, absolute and indefeasible estate of inheritance, in law, in fee simple, and hag good right, full power and authority to grant, bargain, sell and convey the same in manner and form as aforesaid, and that the same are free and clear from all former and other grants, bargains, sales, liens, taxes, assessments and encumbrances of whatever kind of nature soever., except easements, covenants, restrictions, reservations, rights-of- way or record and the above bar ained premises in the quiet and peaceable possession of the said party of the second part, successb~~s it S ~ei-rs an assigns against all and every person or persons lawfully claiming or to claim the whole or any part thereof, the said party of the first part shall and will WARRANT AND FOREVER DEFEND. IN tt'ITNESS «'HEREOF, the said party of the first part has hereunto set its hand and seal the day and year first above written. t,HE PULIS RANCH, a Colorado limited partnership STATE OF COLORADO. ss. County of The foregoing instrument was acknowledged before me this lsg3 .b~'Jay B. Pulis, Jr. and Warren Kamer ~1~ cemmissionexpires 19 83 day of Pulis, general partners of 19 .Witness m~' hand and official seal. Address: * The Pulis Ranch, _a Colorado limited partnership Notary Pu No. 932 WARRANTY DEID.-For Photo~r~p~1e Record- Bradfurd Publishing. }tl2y W, 6~~ Ave.. Lakrwuud. GU g0?la- 1107 ?316')00- y~Ri ~~ Section 14.2. Waiver. No waiver of any event of default hereunder shall extend to or affect any subsequent or any other event of default then existing or impair any rights, powers or remedies consequent thereon. Section 14.3. Severabi`li`ty. In the event any one or more of the provisions contained in this Deed of Trust shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision of this Deed of Trust, but this Deed oc Trust shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein. Section 14.4. Successors and Assigns. This Deed of Trust shall be binding upon the heirs, successors and assigns of the respective parties hereto. Section 14.5. Governing Law. This Deed of Trust shall be construed, enforced and governe in accordance with the laws of the State of Colorado. Section 14.6. Gender. As used herein, the singular shall include the plural, the plural includes the singular, words of one gender shall include another gender. Section 14.7. Amendment. This Deed of Trust shall be amended only by an instrument in writing signed by the party against whom enforcement is sought. However, in the event any provision hereunder conflicts with the applicable laws, such provision shall be deemed to conform thereto. ATTEST: GRANTOR: TOWN OF VAIL, COLORADO, a Colorado municipal corporation 'town Clerk By: Town Manager By: Mayor BENEFICIARY: THE PULIS RANCH, a Colorado limited partnership By: Jay B. Pu is, Jr., a general partner By: Warren Kamer Pulis, a general partner -6- VAIL,yCOLORADOv("PURCHASER") DATED Recorded at o'clock Reception No. THIS DEED, blade this day of bi., 19 83 , between THE PULIS RANCH, a Colorado limited partnership of the Count}• of Eagle and State of Colorado, of the first part, and TOWN OF VAIL, COLORADO, a Colorado municipal corporati whose legal address is C~O Town Manager, Municipal Building, Vail, Colorado 81657 of the County of Eagle and State of Colorado, of the second part: WITNESSETH, That the said party of the first part, for and in consideration of Ten Dollars ($10.00) and other good and valuable consideration DOLLARS to the said party of the first part in hand paid by said party of the second part, the receipt whereof is hereby confessed and acknowledged, haS granted, bargained, sold and conveyed, and by these presents dogs grant, bargain, sell, convey and confirm, unto the said party of the second part, itS uC ea~~~s~igns for- ever, all the following described lot or parcel of land, situate, lying and being in the County of Eagle and State of Colorado, to wit: See Exhibit A attached hereto and incorporated herein by reference (the "Property") .~ to be used in perpetuity for a public golf course or open space or park for the benefit of the public and only such other related support facilities required for those purposes and if all or any part of the Property shall not be so used, then all of the right, title and interest in and to all of the Property shall revert to Grantor, its successors and assigns. also known as street and number TOGETHEK with all and singular the hereditaments and appurtenances thereto belonging, or in anywise apper- raining, and the reversion and reversions, remainder and remainders, rents, issues and profits thereof, and all the estate, right, title, interest, claim and demand whatsoever of the said party oC the first part, either in law or equity, of, in and to the above bargained premises, with the hereditaments and appurtenances. TO HAVE AND TO HOLD the said premises above bargained and described with the appurtenances, unto the s ccess~rs said party of the second ari, its rs arl assigns forever. And the said party of the first part, ztg succ~s ors a ass ns for It self , kei~s.-~ce~+~,a~srwxx~acia~uu~as.ers, does covenant, grant, bargain, and agree to and with the said party of the second part, its si+~~and assigns, that at the time oC the ensealing and delivery of these presents, it iS well seized of the premises above conveyed, as otgood, sure, perfect, absolute and indefeasible estate of inheritance, in law, in fee simple, and hag good right, full power and authority to grant, bargain, sell and convey the same in manner and Corm as aforesaid, and that the same are free and clear from all former and other grants, bargains, sales, liens, taxes, assessments and encumbrances of v.~hatever kind of nature soever., except easements, covenants, restrictions, reservations, rights-of- way or record and the above bar ained premises in the quiet and peaceable possession of the said party of the second part, success s It S firirs an~assigns against all and every person or persons lawfully claiming or to claim the whole or any part thereof, the said party of the first part shall and will WARRANT AND FOREVER DEFEND. IN WITNESS WHEREOF, the said party of the first part has hereunto set itS hand and seal the day and }~ear• first above written. THE PULIS RANCH, a Colorado limited nartnerchin ~~ay~-PLi3~5~Y, ,- a-general p~Y~ner Recorder. B (SEAL) arren er u s, a genera Partner STATE OF COLORADO, ss. County of The foreRoinq instrument was acknowledged before me this 1983 .b>'Jay B. Pulls, Jr. and Warren Kamer ~l} cornmissronexpires SEAL1 day of Pulls, general partners of . 19 .Witness my hand and official seal. Address: * The Pulls Ranch, .a Colorado limited partnership Notary Public 1983 No. 932 WARRANTY DEED.-For Photogripblc Record- 8rad(urd Pu blish~ng. }N25 W, 6tb Avc.. Lakcwo~d. GU N021~- (lO1~'_!3-6900-9.R1 ^,~ Section 14.2. Waiver. No waiver of any event of default hereunder shall extend to or affect any subsequent or any other event of default then existing or impair any rights, powers or remedies consequent thereon. Section 14.3. Severability. In the event any one or more of the provisions contained in this Deed of Trust shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality br unenforceability shall not affect any other provision of this Deed of Trust, but this Deed or Trust shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein. Section 14.4. Successors and Assigns. This Deed of Trust shall be binding upon the heirs, successors and assigns of the respective parties hereto. Section 14.5. Governing Law. This Deed of Trust shall be construed, enforced and governe in accordance with the laws of the State of Colorado. Section 14.6. Gender. As used herein, the singular shall include the plural, the plural includes the singular, words of one gender shall include another gender. Section 14.7. Amendment. This Deed of Trust shall be amended only by an instrument in writing signed by the party against whom enforcement is sought. However, in the event any provision hereunder conflicts with the applicable laws, such provision shall be deemed to conform thereto. ATTEST: Town Clerk GRANTOR: TOWN OF VAIL, COLORADO, a Colorado municipal corporation By: Town Manager By: Mayor BENEFICIARY: THE P(3LIS RANCH, a Colorado limited partnership By: Jay B. Pulls, Jr., a general partner By: Warren Kamer Pulls, a general partner -6- VAIL,yCOLORADOv("PURCHASER") DATED Recorded at o'clock M., Reception No. - 1983 Recorder. THIS DEED, blade this day of between THE PULIS RANCH, a Colorado limited partnershi; of the Count}• of Eagle and State oCColorado, of the first part, and TOWN OF VAIL, COLORADO, a Colorado municipal corporat whose legal address is C~o Town Manager, Municipal Building Vail, Colorado 81657 of the County of Eagle and State of Colorado, of the second part: WITNESSETH, That the said party of the first part, for and in consideration of Ten Dollars ($10.00 and other good and valuable consideration DOLLARS to the said party of the first part in hand paid by said party of the second part, the receipt whereof is hereby confessed and acknowledged, has granted, bargained, sold and conveyed, and by these presents do eS grant, bargain, sell, convey and confirm, unto the said party of the second part, its~u+eo+xs a~~~s~igns for- ever, all the following described lot or parcel of land, situate, lying and being in the County of Eagle and State of Colorado, to wit: See Exhibit A attached hereto and incorporated herein by reference (the "Property") to be used in perpetuity for a public golf course or open space or park for the benefit of the public and only such other related support facilities required for those purposes and if all or any part of the Property shall not be so used, then all of the right, title and interest in and to all of the Property shall revert to Grantor, its successors and assigns. also known as street and number TOGETHEK with all and singular the hereditaments and appurtenances thereto belonging, or in anywise apper- taining, and the reversion and reversions, remainder and remainders, rents, issues and profits thereof, and all the estate, right, title, interest, claim and demand whatsoever of the said party of the first part, either in law or equity, of, in and to the above bargained premises, with the hereditaments and appurtenances. TO HAVE AND TO HOLD the said premises above bargained and described with the appurtenances, unto the s ccess~rs . said party of the second art, itS rs an assrgns forever. And the said party of the Cirst part, It succ~s ors a ass~~~ do for it set f , ~eirsi-e~raru+AF~6rA>i[nladn~u~+ eS covenant, grant, bargain, and agree to and With the said art of the second art, s~.tccess~rs. P y P its e~ss-an assrgns, that at the time of the ensealing and delivery of these presents, it is Well seized of the premises above conveyed, as of good, sure, perfect, absolute and indefeasible estate of inheritance, in law, in fee simple, and hag good right, full power and authority to grant, bargain, sell and convey the same in manner and form as aforesaid, and that the same are free and clear from all former and other grants, bargains, sales, liens, taxes, assessments and encumbrances of whatever kind of nature soever., except easements, covenants, restrictions, reservations, rights-of- way or record and the abo~~e bar ained premises in the quiet and peaceable possession of the said party of the second part, success s it S •he;-rs an~assigns against all and every person or persons lawfully claiming or to claim the whole or any part thereof, the said party ofthe first part shall and will WARRANT AND FOREVER DEFEND. IN «'ITNESS ~4'HEREO.F, the said party of the first art has hereunto set its hand and seal the day and year first above written. ~HE PULIS RANCH, a Colorado limited ~ partnership Ev~ay-~->'~-i~s~`r.; a~ertera]: p~f~ner B (SEAL) arren er u s, a genera Partner (SEAL) STATE OF COLORADO, ss. County of The foreROinq instrument was acknowledged before me this day of 1983 •b~'Jay B. Pulis, Jr. and Warren Kamer Pulis, general partners of ~1~ commissron expires , 19 .Witness my hand and official seal. Address: ery Public j * The Pulis Ranch, .a Colorado limited partnership 19 83 No. 932 WARRANTY DEID.-For PEoto~r~p64c Record- andfurd Publishing, tN21 W.6~T Avr.. LakcwuuA. GUN021i-110)1 =1)-6900-4.R1 ~~ Section 14.2. Waiver. No waiver of any event of default hereunder shall extend to or affect any subsequent or any other event of default then existing or impair any rights, powers or remedies consequent thereon. Section 14.3. Severability. In the event any one or more of the provisions contained in this Deed of Trust shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision of this Deed of Trust, but this Deed or Trust shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein. Section 14.4. Successors and Assigns. This Deed of Trust shall be binding upon the heirs, successors and assigns of the respective parties hereto. Section 14.5. Governing Law. This Deed of Trust shall be construed, enforced and governe in accordance with the laws of the State of Colorado. Section 14.6. Gender. As used herein, the singular shall include the plural, the plural includes the singular, words of one gender shall include another gender. Section 14.7. Amendment. This Deed of Trust shall be amended only by an instrument in writing signed by the party against whom enforcement is sought. However, in the event any provision hereunder conflicts with the applicable laws, such provision shall be deemed to conform thereto. ATTEST 'town Cler GRANTOR: TOWN OF VAIL, COLORADO, a Colorado municipal corporation By: Town Manager By: Mayor BENEFICIARY: THE PULIS RANCH, a Colorado limited partnership By: Jay B. Pulls, Jr., a general partner By: Warren Kamer Pulls, a general partner -6- VAIL,~COLORADOv("PURCHASER") DATED 1983 ' Recorded at o'clock M., - Reception No. Recorder. THIS DEED, blade this day of , 19 83 between THE PULIS RANCH, a Colorado limited partnership of the County of Eagle and State of Colorado, of the first part, and TOWN OF VAIL, COLORADO, a Colorado municipal corporat whose legal address is C~o Town Manager, Municipal Building Vail, Colorado 81657 of the County of Eagle and State of Colorado, of the second part: WITNESSETH, That the said party of the first part, for and in consideration of Ten Dollars ($10. ~0) and other good and valuable consideration DOLLARS to the said party of the first part in hand paid by said party of the second part, the receipt whereof is hereby confessed and acknowledged, has granted, bargained, sold and conveyed, and by these presents does grant, bargain, sell, convey and confirm, unto the said party of the second part, its~uea~l~~s~igns for- ever, all the following described lot or parcel of land, situate, lying and being in the County of Eagle and State of Colorado, to wit: See Exhibit A attached hereto and incorporated herein by reference (the "Property") to be used in perpetuity for a public golf course or open space or park for the benefit of the public and only such other related support facilities required for those purposes and if all or any part of the Property shall not be so used, then all of the right, title and interest in and to all of the Property shall revert to Grantor, its successors and assigns: also known as street and number TOGETHER With all and singular the hereditaments and appurtenances thereto belonging, or in anywise apper- taining, and the reversion and reversions, remainder and remainders, rents, issues and profits thereof, and all the estate, right, title, interest, claim and demand v.~hatsoeti~er of the said party of the first part, eit}ier in law or equity, of, in and to the above bargained premises, with the hereditaments and appurtenances. TO H.A~'E AtiD TO HOLD the said premises above bargained and described with the appurtenances, unto the s ccessprs said party of the second art, l.ts rs artd assigns forever. And the said party of the first part, for it sel f ~ 1t~S succ~sors a~1 ~a~su ns e+rs~-e-x er~rwp-c a ~aivss, does covenant, grant, bargain, and agree to and s ccess~rs. µ•ith the said party of the second part, its ~e+~-an assigns, that at the time of the ensealing and delivery of these presents, it is well seized oCthe premises above conveyed, as ofgood, sure, perfect, absolute and indefeasible estate ofinheritance, in law, in fee simple, and hag good right, full power and authority to grant, bargain, sell and convey the same in manner and form as aforesaid, and that the same are free and clear from all former and other grants, bargains, sales, liens, taxes, assessments and encumbrances of whatever kind of nature soever., except easements, covenants., restrictions, reservations, rights-of- way or record and the above bar ained premises in the quiet and peaceable possession of the said party of the second part, successes it S fiei-rs an assigns against all and every person or persons lawfully claimingor to claim the whole or any part thereof, the said party of the first part shall and will WARRANT AN D FOREVER DEFEND. IN WITNESS R'HEREOF, the said .party ofthe first part has hereunto set its hand and seal the day and yeat• first above written. ,jHE PULIS RANCH, a Colorado limited ~ partnership ~v~~a r. ,- a general p~f~ner B (SEAL) arren er u s, a genera Partner _ _ (SEAL) STATE OF COLORADO, ss. County of The foregoing instrument was acknowledged before me this day of 1983 ,b~•Jay B. Pulls, Jr. and Warren Kamer Pulls, general partners of ~lv commission expires , 19 .Witness m}' hand and official seal. Address: * The Pulls Ranch, .a Colorado limited partnership otery Public No. 932 WARRANTY DEPT.-For Fboto~r~phlc Record- Bedford Publishing. SR25 W, 61h ~.... L~krWOU1. GU RO?I~- I)O37 ?33-6900-v-RI ~~ Section 14.2. Waiver. No waiver of any event of default hereunder shall extend to or affect any subsequent or any other event of default then existing or impair ahy rights, powers or remedies consequent thereon. Section 14.3. Severability. In the event any one or more of the provisions contained in~th s Deed of Trust shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision of this Deed of Trust, but this Deed of Trust shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein. Section 14.4. Successors and Assigns. This Deed of Trust shall be binding upon the heirs, successors and assigns of the respective parties hereto. Section 14.5. Governing Law. This Deed of Trust shall be construed, enforced and governe in accordance with the laws of the State of Colorado. Section 14.6. Gender. As used herein, the singular shall include the plural, the plural includes the singular, words of one gender shall include another gender. Section 14.7. Amendment. This Deed of Trust shall be amended only by an instrument in writing signed by the party against whom enforcement is sought. However, in the event any provision hereunder conflicts with the applicable laws, such provision shall be deemed to conform thereto. ATTEST: GRANTOR: TOWN OF VAIL, COLORADO, a Colorado municipal corporation 'I'owa Clerk By: By. 'T'own Manager Mayor BENEFICIARY: THE PULIS RANCH, a Colorado limited partnership By: Jay B. Pulls, Jr., a general partner By: Warren Kanner Pulls, a general partner -6- VAIL,~COLORADOv("PURCHASER") DATED Recorded at o'clock Reception No. 19 83 1983 Recorder. THIS DEED, blade this day of between THE PULLS RANCH, a Colorado limited partnershi; otthe County of Eagle and State of Colorado, of the first part, and TOWN OF VAIL, COLORADO, a Colorado municipal corporat whose legal address is C~O Town Manager, Municipal Building Vail, Colorado 81657 of the County of Eagle and State of Colorado, of the second part: WITNESSETH, That the said party of the Cirst part, for and in consideration of Ten Dollars ($10.00) and other good and valuable consideration DOLLARS to the said part y' of the first part in hand paid by said party of the second part, the receipt whereof is hereby confessed and acknowledged, has granted, bargained, sold and conveyed, and by these presents do eS grant, bargain, sell, convey and confirm, unto the said party of the second part, its~+~ a~t~~s~igns for- ever, all the following described lot or parcel of land, situate, lying and being in the County of Eagle and State of Colorado, to wit: See Exhibit A attached hereto and incorporated herein by reference (the "Property") to be used in perpetuity fora public golf course or open space or park for the benefit of the public and only such other related support facilities required for those purposes and if all or any part of the Property shall not be so used, then all of the right, title and interest in and to all of the Property shall revert to Grantor, its successors and assigns. also known as street and number TOGETHER with all and singular the hereditaments and appurtenances thereto belonging, or in anywise apper- taming, and the reversion and reversions, remainder and remainders, rents, issues and profits thereof, and all the estate, right, title, interest, claim and demand whatsoever of the said party of the first par[, either in law or equity, of, in and to the above bargained premises, with the hereditaments and appurtenances. TO HAVE AND TO HOLD the said premises above bargained and described with the appurtenances, unto the s ccess~rs. said party of the second art, itg rs art assigns forever. And the said party of the first part, for it set f ~ its succors aft ~a~s~S ns etrsr-e•s erg.-acu a r~~rs, does covenant, grant, bargain, and agree to and s~ccess~rs. with the said party of the second part, itg eassan assigns, that at the time of the ensealing and delivery of these presents, it is well seized of the premises above conveyed, as of good, sure, perfect, absolute and indefeasible estate of inheritance, in law, in fee simple, and hag good right, full power and authority to grant, bargain, sell and convey the same in manner and form as aforesaid, and that the same are free and clear from all former and other grants, bargains, sales, liens, taxes, assessments and encumbrances of whatever kind of naturesoever., except easements, covenants, restrictions, reservations, rights-of- way or record and the above bar ained premises in the quiet and peaceable possession of the said party of the second part, success s lts i~ei•rs an~assigns against all and every person or persons lawfully claimingor to claim the whole or any part thereof, the said party of the first part shall and will WARRANT AND FOREVER DEFEND. IN ii'(TNESS ii'HEREOF, the said party ofthe first ppart has hereunto set ltg hand and seal the day and year Cirst above written. 1'HE PULLS RANCH, a Colorado limited ~ partnership ~-may-i~PU-l~s; ,TY. ,- a ~general~ p~~ner B (SEAL) arren er u s, a genera Partner J STATE OF COLORADO, ss. County of The foregoing instrument was acknowledged before me this 1983 •b>'Jay B. Pulis, Jr. and Warren Kamer plc commission expires (SEAL) day of Pulis, general partners of 19 .Witness inv land and official seal. Address: * The Pulis Ranch, _a Colorado limited partnership Notery Public No. 932 WARRANTY DEID.-For Pboto~r~phte Reoord- Bnd(urd PublisAing. }N2S W. 6th Ave.. Lakewood. GU KO?I~-1?o?~ :)1~6Y00-Y.RI ~~ Section 14.2. Waiver. No waiver of any event of default hereunder shall extend to or affect any subsequent or any other event of default then existing or impair any rights, powers or remedies consequent thereon. •. Section 14.3. Severability. In the event any one or more of the provisions contained in~t-h s Deed of Trust shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision of this Deed of Trust, but this Deed or Trust shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein. Section 14.4. Successors and Assigns. This Deed of Trust shall be binding upon the heirs, successors and assigns of the <<;. respective parties hereto. Section 14.5. Governing Law. This Deed of Trust shall be Construed, enforced and governe in accordance with the laws of the State of Colorado. Section 14.6. Gender. As used herein, the singular shall include the plural, the plural includes the singular, words of one gender shall include another gender. Section 14.7. Amendment. This Deed of Trust shall be amended only by an instrument in writing signed by the party against whom enforcement is sought. However, in the event any provision hereunder conflicts with the applicable laws, such provision shall be deemed to conform thereto. ATTES'T' 'Town Clerk GRANTOR: TOWN OF VAIL, COLORADO, a Colorado municipal corporation By: Town Manager By: Mayor BENEFICIARY: THE PULIS RANCH, a Colorado limited partnership By: Jay B. Pulls, Jr., a general partner By: _ _ _ Warren Kanner Pulls, a general partner -6- VAIL,yCOLORADOv("PURCHASER") DATED , Recorded at o'clock M., Reception No. Recorder. THIS DEED, Made this day of 19 83 between THE PULLS RANCH, a Colorado limited partnershil of the County of Eagle and State of Colorado, of the first part, and TOWN OF VAIL, COLORADO, a Colorado municipal corporat whose legal address is C~O Town Manager, Municipal Building Vail, Colorado 81657 of the County of Eagle and State of Colorado, of the second part: WITNESSETH, That the said party of the first part, for and in consideration of Ten Dollars ($10.00) and other good and valuable consideration DOLLARS to the said part y' of the first part.. in hand paid by said party of the second part, the receipt whereof is hereby confessed and acknowledged, has granted, bargained, sold and conveyed, and by these presents do eS grant, bargain, sell, convey and confirm, unto the said party of the second part, its~u~ea~~~s~igns for- ever, all the following described lot or parcel of land, situate, lying and being in the County of Eagle and State of Colorado, to wit: See Exhibit A attached hereto and incorporated herein by reference (the "Property") to be used in perpetuity for a public golf course or open space or park for the benefit of the public and only such other related support facilities required for those purposes and if all or any part of the Property shall not be so used, then all of the right, title and interest in and to all of the Property shall revert to Grantor, its successors and assigns. also knoµ•n as street and number TOGETHER with all and singular the hereditaments and appurtenances thereto belonging, or in anywise apper- taining, and the reversion and reversions, remainder and remainders, rents, issues and profits thereof, and all the estate, right, title, interest, claim and demand whatsoever of the said party of the first part, either in law or equity, of, in and to the above bargained premises, with the hereditaments and appurtenances. TO HAVE AND TO HOLD the said premises above bargained and described with the appurtenances, unto the s ccess~rs. said party of theSsecond pasr~t, its rs art assigns forever. And the said party of the first part, for it sel f ~ ltl~ei~~Ce-oxeec+~.tit~Twwc~ad~uue~atvxs,pdoeg covenant, grant, bargain, and agree to and with the said party o(the second part, its S~eo•+~nd assigns, that at the time of the ensealing and delivery of these presents, it is well seized of the premises above conveyed, as of good, sure, perfect, absolute and indefeasible estate of inheritance, in law, in fee simple, and hag good right, full power and authority to grant, bargain, sell and convey the same in manner and form as aforesaid, and that the same are free and clear from all former and other grants, bargains, sales, liens, taxes, assessments and encumbrances of whatever kind oC nature soever., except easements, covenants, restrictions, reservations, rights-of- way or record and the above bar ained premises in the quiet and peaceable possession of the said party of the second part, success~~s itS ~te•irs an assigns against all and every person or persons lawfully claimingor to claim the whole or any part thereof, the said party ofthe first part shall and will WARRANT AND FOREVER DEFEND. IN WITNESS R'HEREOF, the said party of the first ppart has hereunto set its hand and seal the day and year first above written. THE PULLS RANCH, a Colorado limited partnership By~sy~I3-YU~Jr. ,- a-general p~Y`~n)er B (SEAL) arren er u s, a genera Partner - - -. (SEAL) STATE OF COLORADO, ss. County of Thr fore RoinR instrument was acknowledged before me this day of 1983 •1>>~Jay B. Pulis, Jr. and Warren Kamer Pulis, general partners of ~1~ commission expires , ]9 .Witness m~ hand and official seal. Address: * The Pulis Ranch, .a Colorado limited partnership Notary Public 1983 No. 932 WARRANTY DEID.-For P6oto~r~pbta Reoord- Brodfurd Publishing. Stl2S W, 61h Ave.. Lake WUOd. GU g021a- 1!071 ?73-6900- 4~R1 ~~ Section 14.2. Waiver. No waiver of any event of default hereunder shall extend to or affect any subsequent or any other event of default then existing or impair any rights, powers or remedies consequent thereon. Section 14.3. Severability. In the event any one or more of the provisions contained in this Deed of Trust shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision of this Deed of Trust, but this Deed or Trust shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein. Section 14.4. Successors and Assigns. This Deed of Trust shall be binding upon the heirs, successors and assigns of the respective parties hereto. Section 14.5. Governing Law. This Deed of Trust shall be construed, enforced and governe in accordance with the laws of the State of Colorado. Section 14.6. Gender. As used herein, the singular shall include the plural, the plural includes the singular, words of one gender shall include another gender. Section 14.7. Amendment. This Deed of Trust shall be amended only by an instrument in writing signed by the party against whom enforcement is sought. However, in the event any provision hereunder conflicts with the applicable laws, such provision shall be deemed to conform thereto. ATTEST: GRANTOR: TOWN OF VAIL, COLORADO, a Colorado municipal corporation 'Town Clerk By: Town Manager By: Mayor BENEFICIARY: THE PULIS RANCH, a Colorado limited partnership By: Jay B. Pu is, Jr., a general partner By: Warren Kamer Pu ls, a general partner -6- VAIL,~COLORADOV("PURCHASER") DATED Recorded at o'clock M Reception No. - 1983 Recorder. THIS DEED, ?`lade this day of , 19 83 , between THE PULLS RANCH, a Colorado limited partnership :, i of the Count}' of Eagle and State of Colorado, of the first part, and TOWN OF VAIL, COLORADO, a Colorado municipal corporati whose legal address is C~O Town Manager, Municipal Building, Vail, Colorado 81657 of the County of Eagle and State of Colorado, of the second part: 4i'ITNESSETH, That the said party of the first part, for and in consideration of Ten Dollars ($10. ~0~ and other good and valuable consideration DOLLARS to the said party of the first part in hand paid by said party of the second part, the receipt whereof is hereby confessed and acknowledged, has granted, bargained, sold and conveyed, and by these presents do e5 grant, bargain, sell, convey and confirm, unto the said party of the second part, itS t1C a~J~~s~igns for- ever, all the following described lot or parcel of land, situate, lying and being in the County of Eagle and State of Colorado, to wit: See Exhibit A attached hereto and incorporated herein by reference (the "Property") to be used in perpetuity for a public golf course or open space or park for the benefit of the public and only such other related support facilities required for those purposes and if all or any part of the Property shall not be so used, then all of the right, title and interest in and to all of the Property shall revert to Grantor, its successors and assigns. also known as street and number TOGETHER ~•ith all and singular the hereditaments and appurtenances thereto belonging, or in anywise apper- taining, and the reversion and reversions, remainder and remainders, rents, issues and profits thereof, and all the estate, right, title, interest, claim and demand whatsoever of the said party of the first part, either in law or equity, of, in and to the above bargained premises, with the hereditaments and appurtenances. TO HAVE AND TO HOLD the said premises above bargained and described with the appurtenances, unto the s ccess~rs said party of the second ppart, its rs art assigns forever. And the said party of the first part, It SuCC2s Ors a ass~n~s~ does covenant, grant, bargain, and agree to and for it self , ~ei~s.-e-xec~r~e~Twcunlacla~uu s~iccess~rs. with the said party of the second part, its ~'+~s-an assrgns, that at the time of the ensealing and delivery of these presents, it iS w'eil seized of the premises above conveyed, as of good, sure, perfect, absolute and indefeasible estate of inheritance, in law. in fee simple, and hag good right, full power and authority to grant, bargain, sell and conve}~ the same in manner and form as aforesaid, and that the same are free and clear from all former and other grants, bargains, sales, liens, taxes, assessments and encumbrances of whatever kind of naturesoe~•er., except easements, covenants, restrictions, reservations, rights-of- way or record and the above bar ained premises in the quiet and peaceable possession of the said party o(the second part, success~~s it S -heirs an assigns against all and every person or persons lawfully claiming or to claim the whole or any part thereof, the said party of the first part shall and will WARRANT AND FOREVER DEFEND. IN 1t'ITNESS 11'HEREOF, the said party of the first art haS hereunto set itS hand and seal the day and year first aboti•e written. ~HE PULIS RANCH, a Colorado limited partnership B~sap-~>'u1'i~~X, ,- a~eneraT p~Y~ner B (SEAL) arren er u s, a genera Partner -. (SEAL) STATE OF COLORADO, ss. County of The foregoing instrument was acknowledged before me this day of 1983 •b>'Jay B. Pulis, Jr. and Warren Kamer Pulis, general partners of ~1v commission expires , 19 .Witness Im• hand and official seal. Address: * The Pulis Ranch, .a Colorado limited partnership ery Public No. 932 WARRANTY DEID.-For P6oto~rap6lc Record- Bnd(urd Publishing, tR25 W, 61h Air.. LakcwuuA. CU RO?li - (JOL JJ)-6900- 9~R1 4~ /~-~ \ Colorado Municipal League T0: Mayors and Managers or Clerks V'~ G ~ ` Susan Griffiths, CML General Counsel /~0~'- 12 November 1982 Adoption of Resolution Urging Federal A titrust exemption Legislation for Municipalities "` FROM: ~~. DATE r SUBJECT: 4 With the recent elections concluded, now is an excellent time to urge support from our U.S. representatives and senators for federal legislation to provide municipalities appropriate exemptions from federal antitrust liability. A special CML committee of municipal officials met during the summer to study municipal antitrust concerns. The committee, chaired by Pat Aiello, councilmember from Wheat Ridge, asked the League staff to draft a sample resolution which can be adopted by municipalities urging such support from Colorado's Congressional delegation. The League's Executive Board approved the idea and a copy of the sample resolution is enclosed. Both. the Committee .and the. Board are concerned. over the increased antitrust exposure of municipalities in Colorado .and throughout the country resulting from recent U.S. Supreme Court decisions. As you know, therLeague worked with interested cities and other local government associations in 1982 for"adoption of state legislation to address the antitrust issues. While the 1982 state legislation was reported out of a House committee, it was opposed by various interest groups and failed to pass the full House.' An interim committee of Colorado legislators voted 12-0 not to recommend any local government antitrust exemption legislation for the 1983 state legislative session. Even if' state legislation had been adopted, however, it would have provided little .comfort because of the unclear and changeable nature of the federal court decisions on the subject of local government antitrust immunity.- Years of litigation would have been necessary to decide .whether the state exemption legislation effectively resolved municipal concerns. Federal legislation on the other ,hand, can directly and effectively address municipal concerns. At least four Colorado municipalities -- Pueblo, Boulder, Aspen and Grand Lake -- already have been sued under the federal antitrust laws with total claimed damages, when trebled, exceeding $100 million. Boulder'`'spent in excess of $250,000 defending its antitrust suit and that suit was settled prior to trial. Aspen expects to spend many thousands of dollars defending its antitrust suit. The issues raised in the suits vary. Two of .the Colorado cases involve .local .government land use regulation, one involves regulation of the use of public rights-of-way by a cable company, and one involves operation of a municipal .airport. Cases brought against local governments in other states challenge many other types of :local government action. Thus the municipal exposure to suit comes in many areas and the related costs and attorneys fees can be great even if successfully defended. (over) 1155 Sherman Street, Suite 210 • Denver, CO 80203, • (303) .831-641 1 The National League of Cities actively supports federal legislation in this area. While interest has been ~sxpressed by some members of Congress, additional "grassroots" support is necessary in this controversial area. Ct~II, and a few Colorado municipalities have contacted Colorado's Congressional delegation urging federal legislation. By this memo, we encourage you to bring the enclosed sample or a similar resolution before your city council or Senator. Copies of the resolution adopted by your city or town should be sent to your Representative and Senator, at the addresses listed below, and to the League. The Honorable Gary Hart United States Senator 221 Russell Senate Office Bldg. Washington, D.C. 20510 The Honorable Ren Rramer House of Representatives 114 Cannon.House Office Bldg. Washington, D.C. 20515 . The Honorable Ray Kogovsek House of Representatives 430 Cannon House Office Bldg.. Washington, D.C. 20515 The Honorable Patricia Schroeder House of Representatives 2410 Rayburn House Office Bldg. Washington, D.C. 20515 The Honorable William L. Armstrong United States Senator 1321 Dirksen Senate Office Bldg. Washington, D.C. 20510 The Honorable Timothy E. Wirth House of Representatives 2454 .Rayburn House Office Bldg. Washington, D.C: 20515 The Honorable Hank Brown House of Representatives 1319 Longworth House Office Bldg. Washington, D.C. 20515 The Honorable Jack Swigert 5809 S. Broadway Littleton, CO 8012T +~-. Sample RESOLUTION NO. Whereas, the exposure of municipalities in Colorado and throughout the country to,federal antitrust lawsuits has been greatly expanded as a result of `recent decisions_of the United States Supreme Court; Whereas, the potential for treble damage awards and the substantial expense of defending antitrust litigation, even if successful, may inhibit municipalities from enacting or enforcing regulations which are intended to protect the public health, safety and welfare, but which also may be deemed to restrict competition; Whereas, at least four Colorado municipalities already have been sued under the federal antitrust laws for various regulatory activities, with claimed damages, when trebled,~exceeding $100 million; Whereas, the cost to the taxpayers of one Colorado municipality in defending one of these lawsuits, which was settled prior to trial, exceeded $250,000; Whereas, municipalities differ from private enterprise in that private enterprise is not charged with protecting the public health, safety and welfare; Whereas, numerous protections from municipal regulations, other than treble damages under the federal antitrust laws, are available such as, public notice, public hearing, public meeting and public record requirements, court ~ review of actions, periodic elections and the rights of initiated referendum and recall, and the continuing authority of the state General Assembly or the people of Colorado to modify the statutory and constitutional authority of Colorado's municipalities; (over) Nhereas, state legislation does not provide any certain solution to the problem and years of litigation will be necessary to decide whether any state legislation meets the teat established by the U. 3. Supreme Court for local .~ government antitrust immunity; ;~. Whereas, federal legislation can address the problem directly by seeking a specific exemption from the federal- antitrust laws for local governments and all or some of their activities; Whereas, federal legislation could eliminate damages from the antitrust remedies available against local governments and their taxpayers; and Whereas, local governments should not be imperiled when engaging in traditional ,local government regulatory activities such zoning, enacting and enforcing building and fire codes, regulating the use of public rights-of-way, licensing, franchising and the myriad of other regulatory activities traditionally engaged in by local governments; NOW, THBRffi~OR$, B8 IT RffiOLVSD BS[ TBB CITY (TOWN) OF that the Congress of the United States should act as quickly as possible to provide appropriate exemptions for municipalities from federal antitrust liability. (add standard signature and authentication provisions.) ~~ ' MEh10RANDUM ~~ T0: Planning and Environmental Commission FROM: Department of Community Development DATE: December 8, 1982 ~`` ~ -- , SUBJECT: Variance request to construct a garage partially within a side setback on lot 1, block 4, Vail Village 7th Filing. Applicant: Andy Andrikopolous DESCRIPTION OF VARIANCE REQUESTED The applicant requests a side setback variance of 12 feet ing a garage. The applicant states that due to the confi~ and the location of the existing house which was built in to add a garage. in any other than the proposed location. The required setback is 15 feet and thus the garage would line. CRITERIA AND FINDINGS for the purpose of construct- 3uration of the property 1967 it would be difficult (See attached site plan.) sit 3 feet from the property Upon review of Criteria and Findings, Section 18.62.060 of the Municipal Code, the ~Depa~rtm~ent of Community Development recommends approval of the reguested_var_i_ance ase u~ pon th~oTTowing actors: Consideration of Factors: The relationship of the requested variance to other-existing or structures in the vicinity. potential uses and The requested variance will have very little impact upon adjacent properties and structures. The property directly adjacent to the proposed garage site is owned. by Vail Associates and is utilized as a part of the golf course. The area betGVeen the fair-vay and the garage is heavily wooded and separated by a change in grade. A positive impact will be the enclosure of.automobiles currently left uncovered. The degree to which relief from the a specified r°eaulation is necessary of treatment among sites in the vic tvit oil ut grant of special. privilege. It has been the policy of the staff and of the Planning and Environmental Gom- mission to attempt to encourage garages. In several instances setback variances have been granted in or•~er to meet this goal. The zoning code states that the purpose of a variance is to lessen .practical difficulties inconsistent with the objecti'Ves of the zoning code. The code also states that a practical difficulty may result from the size, shape or dimensions of a site or the location of existing structures upon the site. In this case the configuration of the lot and the location of the existing house limit the possibilities for locating the garage upon the site. The proposed location would have the least impact upon the neighboring house, existing vegetation, and the grade of the site. No negatj;ve impacts are expected fr°om the setback encroachment. strict or literal interpretation and enforcement of to achieve compatibility and uniformity pity or to attain the objectives of this title Andrikopolous -2- 12/8/82 ` The effect of the re uested variance on li_c~ht and air, distribution of population, . transportation an traffic facilities, public facilities and utilities, an~u laic safety. No impact. Such other factors and criteria as the commission deems applicable to the proposed variance. FINDINGS: The Planning and Environmental Commission shall make the fallowing findings before granting a variance: That the granting of the variance will not constitute a grant of special privilege inconsistent with the limitations on other properties classified in the same district; That the granting of the variance will not be detrimental to the public health, safety, or welfare, or materially injurious to properties or improvements in the vicinity; That the variance is warranted for one or more of the following reasons: The strict or literal interpretation and enforcement of the specified regulation would result in practical difficulty or unnecessary physical hardship inconsistent with the objectives of this title. There are exceptions or extraordinary circumstances or conditions applicable to the site of the variance that do not apply generally to other properties in th.e same zone. The strict or literal. interpretation and. enforcement of the specified regulation would deprive the applicant of privileges enjoyed by the owners of other properties in the same district. STAFF RECOA1MENDATIONS The Department of Community Development recommends approval of the requested variance. The addition of. garages has been seen as a positive improvement to the appearance of the Toirn and. has been encouraged. The location of the proposed garage makes sense f rom a site planning standpoint and has no negative impact upon adjacent properties or structures. .y ~. ' .. e ,~ ' ,; ~ ~ :- `i _ ~~jj / / ~ J ~~~ f~f ~ / . a- ~p~ 1 ~_ _ t. ...~_ ~,~Q, ~ \. ~ / ~~ `~ '', ` .___ -., . r.. ~. __ _ _ .. _ . _ _ . _ . _ ~ _ _~-~~-~-1 _ .. _. _ . _~ ...._. August 6, 1980 ..Jim Rubin Director of Zoning Town of .Vail Vail, Colorado Re: Lot 19, Matterhorn Village Subdivision Dear Jim,. 1% y ' (i ~ ,ten /~ ~~~ Zp~~ ti i-~+'g3 l ~~ y'e, the undersigned property owners in Matterhorn, are herewith protesting the continuing deterioration of our living standards and property values brought about by the multiple abuse of the zoning law by Billy and Kirsh Sanders. The original home built on lot 19 was a singlex on a half lot. The Sanders purchased it and received a building permit from Eagle County for "repairs". They proceeded .to illegally turn this singlex into a duplex with two kitchens. After complaints were registered by other residents, the County Commissioners investigated this case and determined.:: that the Sanders should convert the home once again to a singlex, tearing out one kitchen. They also agreed to let the Sanders build another singlex on the other half of the lot directly behind (lot 19A). As of this date the singlex on lot 19A is occupied and the original home on lot 19 is still a duplex with two kitchens. We request a Sanders in t undersigned appreciated. n investigation of all building owned or part owned he Matterhorn Subdivision. A letter from you to all reporting the results of ~he:~.. investigation will be Respectfully yours, Ernst Larese ydalter Moritz James Y;illiams Ella Knox Willian Clem James Charles Lot 13 Lot 12 r52w G'u c~c i ,~. ~~ Lot 11 Lot 24 ~ ~ ~ -~--- Lot 11A ~ ~' ~~ ~ ~// ~j ~ / Lot 14 ~ ~~ '/ ~~( 2'r~ /!v ~~ l~/ /t'1a~C~ryl or. /`2:~l~rc~ / ~~ G~-~rJ C~irc% v ~ a,i by the of the greatly o' A MEMORANDUM T0: Planning and Environmental Commission- ~1 ~ FROM: De artment of Communit Develo ment P Y P js DATE: December 9, 1982 ~~ Pte. SUBJECT: Zoning of recently annexed parcels in Matterhorn area Applicant: Town of Vail I (7 du/35 ac ) Fall Line RSM 54 . 43,000 1.52 35 HDMF (25 du/acre) (5.5 du/ac) Parsons/Sanders Resource 0~ 0 1.0 0 RC 6 du/acre (North) Parsons South Resource 0 0 ~ 1.0 0 RC 6 du/acre Siverly/Mueller RSM ~5? 5,070 .5 1'0 RC 6 du/acre Matterhorn Inn RSM 11 ? .5 ~ 22 RC 6 du/acre Condos Parsons/Sanders RSM 0 0 .86 0 R P/S 2-4 units South The chart below represents existing and proposed statistics and zone districts for the 7 parcels of .property which were annexed in November. Following the chart is a written description of each parcel's status as well as reasoning fo our zoning proposals. Attached please find a map for your reference. PARCEL FORMER EXISTING APPROX APPROX -EXIST PROPOSED TOV MAX :CTY ZONING N0. UNITS EX GRFA NO ACRES DU/ACRE TOU ZONING DENSITY Park Meadows Resource 33 ? 1.0 33 HDMF (25 du/acre) A. PARK MEADOWS Park Meadows is. a condominium r_omplex with 33 different property owners listed by the Eagle County Assessor's office. It is predominantly short-termed and was con- structed in the. late 60's before County zoning. Since the density is higher than " any zone district we have, we propose to zone it HDMF, which allows 25 units/acre (our closest density to what's existing). Thus, Park Meadows will be come legal non-conforming in the HDMF Zone District. B. FALL LINE The Fa11 Line apartments were constructed in the mid-60's previous to County zoning. There are 54 apartments and approximately 43,000 square feet of floor area existing. The building is used for employee housing for the Marriott's Mark Hotel and owned by Kaiser Morcus. The density is over 35-units to the acre and so we propose HDMF zoning because it is one closest density. to what's existing. Zoning -Annexed Ar..eas -2- 12/9/82 A condition of .approval for the Marriott's Mark Phase III Addition project is as follows: "An agreement between the owner anal the Town be worked .out to ensure 'the continued availabi`1 ity of the employee housing units for the project's employees fbr eight years. In addition, the Planning and Environmental Commission will review the project in eight years to see if it .warrants extension." .Such an agreement has not been reached as of. yet, but the staff has scheduled a meeting with the property owner to accomplish these restrictions. Thus, Fa11 Line will continue to serve as an employee housing facility for at least eight more years. C. PARSONS/SANDERS-NORTH AND PARSONS SOUTH These are the two vacant parcels making u~ street (to the south) from Fall Line. Ali rezoning for this property from Resource t It was felt by the Town that this and the be under Town of Vail jurisdiction. Thus, a.2 acre piece of property across the ce Parsons and Velma Sanders proposed a o RSM in Eagle County this past summer. other encla.ved parcels in the area should the ensuing annexation. The staff has studied the zoriing for this property at length. We feel that the existing adjacent densities to the north warrant a multi-family zone for this parcel. In keeping with a reasonable lower density multi-family zone, we feel Residential Cluster is appropriate. RC would allow this property to develop in a clustered fashion and leave more open space, which is compatible with the surrounding public park use. An RC zoning designation would allow 11 or 1.2.units, depending on the exact parcel. size of these two lots. D. SIVERLY/MUELLER The County issued a building permit on Apri1~13, 1978 for this property to alter a single family residence into a triplex. Upon site ins ection, the staff believes there are at leas- 5 units nnw existing. e recognize as lega only 3 units an this fits into the Residential Cluster Zone District density of 6 units/acre. We are currently working with the ounty planning department and the property owners to get this situation resolved. E. MATTERHORN INN CONDOMINIUMS The Eagle County Assessor's office lists eleven property owners in this building and there appear. to be 11 units existing. This structure was also constructed before County zoning and thus, its high density. We should note that even though there a_re eleven units on about a half of an acre here, that the building is very low profile (one story)~and unobtrusive. The units appear to be quite small and thus this project doesn't have the impacts which one would experience with an eleven unit townhouse- type development. We recommend RC for this parcel (creating a legal non-conforming use) so that this area is consistent in zoning with the parcels to the north. ,Zoning Annexed Areas -3- .1.?_/9/.82 F. PARSONS/SANDERS SOUTH This parcel is approximately (measured by a planimenter by the staff) .86 acre. It has some slope to it on the south .side, but it is uncertain (without further informa= t`ion) whether or not 'the sloping. ,port~i:on is within the lot's boundaries. The staff has taken a close look at what the most appropriate zoning for this parcel is. We .consider that there is a need to accomplish a transition from the multi-family parcels to the north and east of this property to the predominantly primary/secondary duplex nature development to the west. .Indeed., .physically this parcel relates more to the west (primary/secondary zoning) than to the northeast (proposed residential cluster). Thus, we f eel'Residential Primary/Secondary is the most appropriate zone for th i s parcel . RECOMMENDATION The Department of Community Development recommends approval of the zoning as outlined above. We feel this proposal both .legitimately recognizes the existing densities while protecting the primary/secondary nature of the existing Matterhorn neighborhood. The zoning allows for upgrading of existing buildings and grounds without allowance for adding units or floor area to these structures. Of course, any new development proposals must follow the Town's Design Review Guidelines and, as a result,.will be strictly reviewed with respect to the efects on adjacent properties and land uses. CEN7~R pF SFG'T/ON 12~ TSS~ ' - APB/W Gla THE W TH. RM. ' (Ft7/NT pF' [yEti/NN/NG FG7.~ Fin.ECEL A~ . S B9 °28' /O ~~IN 390. GY1' ~ 89 °28 '10'~W 232. GYJ' N o ti eoox rah, ~.oa aze 0 v OwNGiP: KA/.SEie E. MOMCtJJ '~ ~ 1.z ~ . l...L ° " •"" ~ p • 73 U7 57 ' ~ e R=TB 9J ~~ ~ ~ L = 100. 74 " • f~ CH = N SZ °25 ;32 "E 94.OS' • ,0 ' N 86 S9 ,31 E ~ .. ~~ ~ _~ '~/ BOOK £o~, wanr_ 4D/ . VELMA 3ANOE~B p : 74°07'S7'~ ~R = 28.93 ' ~ L =.9T43' CN = 8 52 ° SS ".93 "W n 34.6T i m ~ i" ' ~ MG'+A P~VVS PARCEL A ~°N°~/~,~/ys • A D s oo °.a2 'so "w 8 353.70' , 25.00' v Z • N69 28 10 E 23Z.GL'7' • w:t ~\ • ;`•' .ti' ~'~ / • N ~ /. ~C:. '~ .. ' j ,. ' ~. ~ ~ z~ f~ :•~,,, ~ ,~ ,-, ,r ,yi~" ,.~, .....~ h .~ ~, • y N tad 5 =s ' ~y ~ L- • ~ _S 8959'.31 "W ice. ~" ' ,~ d : 74 X07 ~ .. 1 .. • ~ ._I~' • 28.9= 8 ^~. c.:.3 ~. 4.9 v CN -.~ 52';: 33.3 ""w ~ ~ 34 13:= m 'B~~c t^ ~sG 4J1 ~• 1'% ~~ ~7 ~ /(I ~ ~~ GJCVh'FR; AL~CG' L Aa.e50+~5 / ~ `~ VCLMA SANOE~PS • ~~, , / J ~ IQ = 43/. 4~ " 1 ~ L 129.42 " l ~ _ 123.00 " V L,Ba•~~ ~ eoo.r zca t~+c-.E 429 ~ ~v . ~~ Owh C~P~ A. .E L~_HaR50NS a ~i • \ - ~y IF • 4.31.48 " V \ L = 130.00 Z. CH=547 44'/!o bt/ pti t29.5f' p' \ 12774' . ~ attar 26~ ~E arm ~ N8`.~°33'35 E O wNE'.c5 ~ „a.r~v L. S~vERLY YI / 1 ~ 9D MATTERHORN /NN \ ~ - /GG ~O 4Q'? CONOQ~9/N/UMS m V r~ P~~~~° 22 ~O ~ Z .~/ ~ 5 • BoO~e z/~ .~ ~•j~ (p ow~Nr'.es stc/c~ L..°f+.P5oN5 3G,~• N~ VLsLMA G. S~+NG~ERS " • mi .y \\` • [~ ~ ~ ~/ . Q ~ ~ • -. ~s~~ /47/NT GY B~°v/NNI/VC7 , FQ4 f!n E=EL B - N ~~'~• t:. c.... NOTES \ 1. TNT C. ~:~ :t ~,-