iv. previously held that minimum lot size may be closely related to the goals of public health and safety but the minimum floor area requirements are not per se related to public health safety or morals
v. maintaining property values is an appropriate goal of zords
vi. The court is applying a strict standard of review here -- not presumptively accepting the decision of the zoning board -- not giving deference to the decision below
a) these cases are examples of when the court gets tough -- these are the exceptions rather than the rule -- see the note below
i. Denial of a variance on a summary finding couched in conclusionary language of the statute is not adequate. There must be a statement of the specific findings of fact on which the board reached the conclusion that the statutory criteria for a variance were not satisfied.
e. Notes -- CB 1029
i. Note 2 -- what about variances needed to adjust existing property to relieve hardships that are the product of a personal circumstance?
a) porch for invalid child?
b) See Souter's opinion?
ii. Self-imposed hardship?
a) does purchase with knowledge of a hardship preclude issuance of a variance?
iii. Why is the burden of proof greater for a use variance than for an area variance?
iv. According to conventional wisdom, issuance of variances is reversed far more often than denial. SEE CB 1030
f. Memo to the mayor?
i. If you are advising the zoning board, what would you tell them to put in the decision in order to make it court proof?
a) put in something about aesthetics -- court will defer to this b/c how can you challenge someone's judgment of aesthetics
3. Special Exception -- Cope v. Town of Brunswick -- CB 1030
a. What is a special exception?
i. a use permitted by the ordinance in a district in which it is not necessarily incompatible, but where it might cause harm if not watched. Exceptions are authorized under conditions which will insure their compatibility with surrounding uses
ii. frequently gas statations are special exceptions
a) don't want to outlaw it altogether b/c of their importance but you do want to control were they go
b. Difference from a variance?
i. a variance is an administratively authorized depature from the terms of the zord, granted in cases of unique and individual hardship, in which strict application of the terms of the ordinance would be unconstitutional
i. πs wanted to construct apt bldg but were denied an exception
ii. πs claim the zord is unconstitutional b/c of authority given to the board which is legislative in nature
iii. Requirements for exceptions?
a) SEE CB 1031
i. the legislative body cannot delegate to the Board a discretion that is not limited by leg standards. it cannot give the Board discretionary authority to aprove or disapprove applications for permits as the Board thinks best serves the public interest without establishing standards to limit and guide the board
a) more than general guidance is required
i. Whether the use will generally comply with the health, safety and welfare of the public and the essential characterof the area is a legislative question
b) But when local and small groups are involved, you don't have the same stamp of validity -- it is not part of the leg function to grant permits, make special exemptions, or decide particular cases -- these activities are not legislative but administrative or judicial in character
ii. On the other hand, a determination whether the permissable use of a specific piece of property should be changed is usually an exercise of judicial authority and its propriety is subject to an altogether different test
iii. Therefore, judicial review of the Board's decision to rezone is not limited to a determination of whether the change was arbitrary and capricious -- this applies to leg's
c. Standard of review?
i. Change must be proven to be in conformance with the comprehensive plan
ii. Burden on Party seeking the change to show:
a) there is a public need for a change of the kind in question and
b) that need will be best served by changing the classification of the particular piece of property in question as compared with other available property
iii. the more drastic the change, the greater the burden of showing that it is in conformance with the comprehensive plan, that there is a public need for the change, and that the need is best met by the proposal under consideration
iv. the above standards adopted contain no absolute standards or mechanical tests but the court does give some guidance
a) SEE CB 1041
b) need some justification for the change to be supported in the record and since there is no support int his case, the court overturns the zoning change
d. Why court developed this standard of review?
i. worried about corruption and thinks this is the best way to allow flexibility but at the same time guard against corruption and abuse
e. Searching Iquiry?
i. this is strange for a court to do this -- this is the outlying case
ii. how you feel about this case probably comes down to how you feel about local govts
5. Dealmaking in zoning?
a. this is how most of zoning gets done
b. if city thinks 50 floors is the limit they would zone the city at 45 floors thereby creating a currency of 5 floors