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Minutes 01-09-78MINUTES OF THE BOARD OF ADJUSTmeNT MEETING HELD AT CITY HALL, BOYNTON BEACH, FLORIDA, MONDAY, JANUARY 9, 1978 AT 7:00 P. M. PRESENT Ben Adelman Lillian Bond David Healy Joe Maiorana Vernon Thompson, Jr. Foy Ward Carl Zimmerman Bill Cwynar, Alternate Charles Rodriguez, Alternate Gene Moore, City Attorney Bert Keehr, Asst. Bldg. Official M~. Thompson called the meeting to order at 7:00 P. M. and announced it was an Organizational Meeting of the Board for 1978. He suggested the first thing to be done would be the election of officers. Election of Officers M_r. Thompson opened the floor for nominations for Chairman. Mm~. Ward nominated Mr. Vernon Thompson, seconded by ~s. Bond. Mm~. Thompson clarified that this nomination would be for tem- porary Chairman of this particular organizational meeting. Nomination carried unanimously. Chairman Thompson then declared the floor~ open for nominations for Chairman for 1978. Mr. Ward nominated ~. Vernon Thompson, seconded by Mrs. Bond. Chairman Thompson ascertained there were no other nominations. Mr. Ward moved that nominations be closed and ~. Thompson was unanimously elected Chairman for 1 978. Mr. Ward nominated M~. David Healy for Vice Chairman, seconded by Mrs. Bond. Chairman Thompson ascertained there were no other nominations. M~s. Bond moved that nominations for Vice Chairman be closed, seconded by Mr. Healy. Nomination carried unanimously electing Mr. David Healy Vice Chairman. Mrs. Bond nominated Mr. Carl Zimmerman for Secretary, seconded by Mr. Ward. M~. Adelman moved that the nominations be closed and M~. Carl Zimmerman was unanimously elected Secretary for 1 978. Chairman Thompson welcomed the two new members and suggested that all the members introduce themselves and get acquainted. Meeting Dates ~. Healy referred to the meetings being generally held on the second and fourth Mondays of the month previousIy as scheduled by the City Clerk per varianc~es received. He ques- tions whether the Board should meet at the end of the month MINUTES BOARD OF ADJUSTMENT PAGE TWO JANUARY 9, 1 978 if we haVe not met during the month. Chairman Thompson added that the last Chairman had set the second and fourth Mondays as the regular meeting dates, but the Chairman the previous year had the second Monday set with the fourth Monday on call. He requested a consensus from the members and referred to ~. Keehr mentioning before the meeting that a blot of build- ing is anticipated. Mr, Ward replied he thought the Board should meet on the second and fourth Mondays and meet on the fourth Monday if only to approve thei~minutes from the second, so the minutes are not held a full month. ~. Healy referred to the Building Department acting on the applications the following day without the minutes and Mr. Ward agreed, but stated thait the City Clerk will not release the minutes until approved bY this Board. After further discussion, ~. Healy made a motion to hold meetings oa the second and fourth Mondays at 7:00 P. M., seconded by M~. Ward. Motion carried 7-0. Chairman Thomp- son clarifiied that these will be the scheduled date~ and the Board ~ill meet if only to approve the minutes of the previous meeting. Chairman Thompson asked the City Attorney if a variance is approved at a regular meeting, is it legal for the Building Department to issue a permit before the minutes are approved and ~. Moore replied affirmatively and stated it was not necessary to have the minutes transcribed and approved before action is taken. Once the vote is taken by the Board, the action is final. M~. Healy stated that meeting on the fourth Monday to approve minutes would not mean anything and Mr. Moore replied that the minutes must be approved eventually and explained how the minutes were an official reflection of what has happened, but the vote of the Board is the ac- tion. ~, Rodriguez referred to the possibility of people filing an appeal to the Board's decision and asked if it was necessary for them to have the ~nutes and Mr. Moore ex- plained that it was the action being appealed and the minutes would be the official record which would be needed at a later date. The appeal would be from the decision made by the Board. Other Discussion M~. Moore informed the Board that the Council requested him to be present tonight as a courtesy to answer any questions. Mr. Healy referred to the form submitted by the Building De- partment to note a decision on an application and requested ~. Moore's opinion of this. Mr. Moore replied that it would be good to have their decision in official form and it would be a record to base the issuance of the permit on. Mr. Healy informed him that the Board turned it down previously because they felt it should have the approval of the City Council and City Attorney and ~. Moore replied that he didn't think their MINUTES BOARD OF ADJUSTMENT PAGE ~REE JA~JARY 9, 1978 approval is necessary, but he will be glad to look at it. ~. Healy added that it was felt if it was signed by the Chairman, it would become a legal instrument and ~. Keehr added that the intent was to keep the Building Department informed, iAfter review of the form, M~. Moore stated he thought it mas excellent and would be the official action taken by this Board. An appeal could be based on this rather than the discussion in the minutes, plus it gives the Build- ing Department official documentation the next morning for their fileS. The Building Department could also give the applicant a certified copy of this form.. ~. Adelman suggested there be a space on the form for noting the ivariance is denied and Mr. Healy agreed. ~. Rodriguez asked if it would be advisable to incorporate a copy of the form in the minutes and ~. Moore suggested ~hat once action is taken, the Chairman could sign it and nOte the actions taken and there would be one sheet for each case whichlcoutd be filed in the records of the Board. The City Clerk could give a copy of the form before the minutes are approved. M~. Rodriguez referred to the possibility of amending or modifying a variance or placing conditions on it and Mr. MoOre explained that it would be the responsibility and function of this Board to render a decision with clarity so people can understand what action they have taken. At this time, Chairman Thompson welcomed Mayor Jackson pre- sent in the audience. ~. Moore stated he thought the form itself is excellent and he recommends it be implemented. He suggests that the infor- mation be Written in by the Building Department with the action taken by the Board noted on the form by the Chairman. Chairman Thompson referred to the number of votes required to grant a variance and referred to the question whether a majority vote was needed with a seven member Board. Mms. Bond added that there was also a question when only a six member Board was present and Chairman Thompson replied that if there was a tied vote ~ith six me~oers, it was recommended to table the application. M~. Moore replied that tabling was not always the best waY and explained how the seventh member would not be present to hear all the information. He then referred to everythinglcoming before this Board being in the~nature of an appeal and stated it was necessary to have five votes in favor to grant a variance. A quorum technically is four members and he explained how a majority vote could mg~e a decision on an administrative matter; however, when voting on an appeal there must be at least five members to consti- tute a valid body and all must vote in favor. Mr. Ward asked if five votes were necessary for denial and M~. Moore replied they did not have to vote for denial. If there are not five vbtes in favor, it is denied, if a negative motion MINUTES BOARD 0F ADJUSTmeNT P~&GE FOUR JA~R¥ 9, 1978 is made, as soon as there are three votes backing the motion, it carries because there cannot be five votes for approval. Mr. Adelman referred to the Culver case when six members were present and asked if the applicant could ask for a de- lay and Mr. Moore replied that he could ask for a continu- ance. He added that the Board should try to help people and if it looks like there are three or four against, it should be suggested to the applicant that he ask for a continuance~ or to request the matter to be rescheduled until a full Board is present. Mr. Ward asked if he could ask for continuar~ce after the vote is taken and M~. Moore replied that he should ask before it is taken. He explained how the Chairman could poll the members and if he finds a 3-3 vote is possible, he should possibly suggest rescheduling it until a seven member Board is present. He explained further how this was a deci- sion for the Board and Chairman with consideration being given to the people. Mr. Healy referred to the possibility of having a 3-3 vote with the application being denned and questioned the recourse the applicant had and Mr. Moore replied that the applicant could appeal to this Board. Mr. Healy asked how it could be brought back and M~. Moore replied that the applicant could apply every week to this Board. Chairman Thompson stated that after the second application, there is a six months wait. Mr. Moore suggested that if at all possible, the Board have seven members and/or alternates present at every meeting. Mr. Healy stated that with a six member Board, the suggestion could be made to adjourn and Mr. Moore replied that would probably be better rather than taking a vote. The case can be continued until a later date if it looks like no relief will be granted. Mr. Healy asked if a member of the Board could bring it back and ~. Moore replied that the man would have to reapply or appeal because of not having a full Board. Mr. Moore then told about having some textbook information regarding the Board's duties and explaining the difference between variance and exception with examples, specific situ- ations, etc. and advised that he would give this to the Re- cording Secretary with a request to have the City Clerk for- ward a copy to each member. M~. Healy replied that this Board did not hear special exceptions and Mr. Moore replied that it is included in the charter and explained how the Board may be called upon to do it in a specific circumstance. ~. Rodriguez referred to the Florida Law and the local ordi- nance practically reading identically in Paragraphs A and B pertaining to the reasons for granting a variance. He re- ferred to a recent case where the applicant wanted to en- large a building into the area of the setbacks and a vari- ance was required and referred to this being due to the MINUTES BOARD OF ~DJUST~NT PAGE FI%~E JA~JARY 9, 1 978 actions of the applicant which would automatically be against the applicant. Mr. Moore replied that it was hard to think of a situation where an applicant does not have a little bit of involvement and they must apply human kindness. He explained how the law was written based on a determination of the hard- ship and explained that the Board must work within the frame- work of the ordinance and will probably find that it seldom happens that the applicant had nothing to do with causing the hardship. He added that they must remember if they grant variances too liberally, the Council will appeal their deci- sions. He explained how the Council had the right to appeal if they felt this Board was changing the zoning. M~. Adelman clarified that the Council would have to appeal through the court like anyone else and Mr. Moore agreed and stated that either the City or applicant could appeal. Chairman Thompson referred to the enforcement of deed restric- tions and ~. Moore informed him that the only area of our jurisdiction is within the zoning ordinance and deed restric- tions are of no concern to this Board and he explained. He added that the Building Department cannot withhold the issu- ance of a permit as long as the zoning ordinance is met. tt is not up to the City to enforce deed restrictions. ~er. Healy referred to the application calling for a copy of the deed and asked if a pal8 tax receipt would be sufficient and M~. Moore replied that he thinks the purpose of this re- quirement is to find out if the applicant owns the property. He does not think it is our responsibility to research the title. He thinks we must ascertain as best as possible that the man is building on a lot he owns. M~. Healy referred to the tax receipt showing the lot description and ~. Moore re- plied this was another check, but not as good as the deed. The application calls for a deed because it is generally the best description and the Building Department can look at the plat book and verify it. He thinks we are trying to help the applicant with requiring this. Mm. Keehr asked if he was right in assuming this Board could hear all ca~es pertaining to the zoning ordinance such as lot coverage, etc. and Mr. Moore replied affirmatively for vari- ance purposes, but nothing amounting to a zoning change use. He clarified that this Board cannot grant a zoning change, but explained how they were concerned with setbacks, density, etc. ~. Keehr referred to Leisureville having large homes on small lots and M~. Moore replied that this Board should not get involved in PUD zoning as it is a specific type of zon- ing where everything was set by legislative action ~der a special ordinance. He explained how it should be refemred back to the!City Council unl~there is a decision made by the Building Official which couldbe appealed to this Board. MINUTES BOARD OF ADJUSTMENT PAGE S IX JANUARY 9, 1978 M~. Rodriguez referred to the Boynton Beach ordinance match- ing the State Chapter 163 almost verbatim and Mr. Moore re- plied there were differences for specific purposes. He added that they could have adopted the State Law, but are not bound to do it. This Board's duties and responsibilities are set up under a specific ordinance. Chairman Thompson ascertained there were no further questions for ~. MoOre and thanked him for attending and also answering all the Board's questions last year. ~. Moore requested them to feel free to contact him whenever they have any questions. He added that he would appreciate having the questions coming through the Chairman to alleviate the possibility of receiving seven different questions. Chairman Thompson then asked the members if they wanted to make a decision on the form presented by the Building Depart- ment and ~. Healy referred to the Building Department sup- posing to make some changes on the form and suggested return- ing it to ~he Building Department before approving by this Board. Mrj Keehr agreed and added that he also agreed that the Building Department should fill in the form prior to the ~eting wish just leaving the Board to fill in the action taken. Chairman Thompson suggested possibly having a stamp to stamp i% denied or approved and Mr. Ward stated that it should be signed and dated. Mr. Zimmerman suggested having an additional line where it could be checked that it was denied. M~. Healy suggested having a place for a witness to sign and Mr. Rodriguez suggested having the Chairman and Secretary Sign the form. M~s. Bond referred to having new members on the Board and suggested that they receive copies of the books. ~. Healy agreed andlclarified that every member should have a copy of the Board of Adjustment Summary Outline of Powers, a copy of the Planning & Zoning Ordinance Book, and the latest copy of the zoning map. After discussion, M~. Keehr agreed to obtain five copies of the Zoning Book and Map for Chairman Thompson a~d it was suggested that nine copies of the Board of Adjustment Summary Outline of Powers be obtained from the City Clerk~ Mr. Zimmerman referred to the information sub- mitted by M~. Moore and Mrs. Kruse advised she would turn them in with the minutes and have them copied and forwarded with the minutes. M~. Healy announced that if any member was unable to attend a meeting, he should call the Chairman. Chairman Thompson agreed and added that the call should be received prior to the meeting. Mr. Healy stated that they could call either the Chairman or Secretary and Chairman Thompson added that they couldlalso call ~s. Padgett and she would sen~ a notice to the Board. Also, if a member has three unexcused consecutmve absences, he will probably be dropped from the Board. MINUTES BOARD OF ADJUST~NT PAGE S~EN JANUARY 9, 1 978 Mr. Cwynar referred to being an alternate and asked if his basic function would be to take the place of a regular member when he is absent and Chairman Thompson replied affirmatively and added that sometimes a member must dismiss himself from a case because of a conflict of interest. All alternates have always been encouraged to be present. The alternate does have the right to ask the Board questions, but not to directly question the applicant. The alternates are part of the group at every meeting. Mr. Adelman referred to alternates asking questions of the appl£cants previously and Chairman Thompson agreed this procedure was bent sometimes. ~. Healy clarified that the alternates have always been allowed to take part in everything but voting. Mr. Cwynar referred to receiving notice of two applications in the mail and asked if there would be any discussion about. these prior to the public hearing and Chairman Thompson re- plied negatively. M~. Ward added that it was suggested that if possible, the members visit the site. Chairman Thompson added that he had found it a good practice if the owner is there and he talks to them, he does not commit himself in any way. ~. Healy referred to being under the Sunshine Law and not d~scussing anything prior to the hearing and Mr. Rodriguez questioned where thi~ came in and Mr. Healy replied that we are a civic body ~ud not allowed to make a decision before the meeting. M~. Rodriguez referred to there being a cloudy area regarding preliminary discussions and ~. Healy replied that we would be allowed to have a workshop meeting without making a decision, but everything is open to the public. ADJO~N~NT Chairman Thompson referred to the meetings starting promptly at 7:00 P. M. and requested the members to be on time. ~. Adelman then made a motion to adjourn, seconded by M~. Zimmerman. Motion carried 7-0 and the meeting was properly adjourned at 8:~0 P. M. Respectfully submitted, Suzanne M. Kruse Recording S~cretary (Two Tapes ) forming~'~ use and may remain but may not he..extended so as to reduce the reqti:~red Open space? A bay window dxtending into required side yard space is a violation of the side yard requirements,~s and a carport is within ~ provision of an ordi- nance reqMring that a side yard of prescribed dimensions be left open and unobstructed? And a garage constructed a.s ~a part of a residence and architectu~2lty in harmony with the house was held not to be an ac.. eessory building so as to come with- in .the exceptions from yard require- meats.~* Similarly, a garage at- tached to a house by a breezeway and producing a uniform architect~. ura] effect is not an accessory build- ing within an exemption from a side yard requirernenL~s And an addi- tion to a residence for a bedroom and bath is an integral part of '[he main building and is not excepted as an accessory building? On the other hand, open space required to be maintained as a side yard may be used for parking automobiles.so The granting of a variance from side or rear yard requirements has been upheld where there was a showing that unnecessary hardship would resuR from enforcement of the requirements.~ However, the denial of a variance from side yard requirements has been upheld,a but the granting of such a variance was invalidated as an abuse of discre- tion, where the petitioner did not prove unnecessary hardship) And ~ Carney v. Baltimore, 201 Md 130, 93 A2d 74, 75-56 (1952). ls Stokes v. Jenkins. 107 NJ Eq 318, 152 A 383 (1930); Neithamer v. Heyer, 39 Ohio App 532, 177 NE 925 (1931). 46 Hargraves v. Young, 3 Utah2d 175, 280 P2d 974, 975 (!955). 47 Misuk v. Zoning Bd of Appeals, 138 Corm 477, 86 A2d 180, 182 (1952)o See Nots 7 ALR2d 593 (1949). as Olson v. Zoning Bd. of Appeal, 324 Mass 57~ 84 NE2d 544, 7 ALR2d 591 (1949). as Carney :~. Baltimore. no~e 44 supra, 93 k2d at 76. ~'0Akeks'v, Baltimore., 179 Md 448, 20 A2d 18~ 0¢41). ~ Wadetl -'. BoaFd of Zoning Appeals, 136 Corm t, 68 A2d 152 (1949), church schoO~ Mdc yard; People v. Leo, 195 App Div ~&7~ 135 NYS 949, aff'd 23]. NY 619, 132 NE 912 (:1~:21), rear yard; Zeltner v. Board of ~als, 136 NYS2d 351, 352 ( 1954 residential-fl~iiing on an adjoining lot; L & M I~es{~ent. Co. v. Cutler, 125 Ohio St 1~;. ~0.'--~ 379, 86 ALR 707 (1932), side' ~rd¢-.MeCauley v. Ash, 99 Ohio App, ~?~J24/:NE2d 739, 743,44 (1955), ,~ii, Q~y~?in side yard; Cof- fin v. 844-45 ~(R! ~053'j: ~ddltion'to coilege build- iht cl'~[~'th~i 30 ~eet from lo~ of ahother, ~g~dt v. Board of Zoning Appeals, t~i~a'606, 66 SE'2d 565, 570-72 (1951), neighborhood store, fron~ and back yards; Thalhofer v. Patti, 240 Wis 404, 3 NW2d 761 (1942), stoop and steps in side yard. See Note 168 ALR 13, 51. 55 (1947). ~Appeal of Blackstone, 8 Harr (Del) 230, 190 A 597 (1937), rear yard of build- ing used for residential purpose in a business district; Carney v. Baltimore, 201 Md 130, 93 A2d 74, 76-77 (1952), ad- dition to residence for bedroom and bath in side yard; Home Builders Ass'n v. Paramus, 7 NJ 335. 81 A2d 753, 755-58 (1951), L-shaped corner lot in an indus- trial district under an ordinance providing that "all yards that abut a street line shall Yon deemed Front Yards and shall have the minimum depth pre,sCribed for a Front Yard"; Kumnan v. ~Zoning justment~ 351 Pa 247, 40 A2d3S1 (1945), use of single-family dwelling fo~ week-end religious services where side yard did not comply with requirements; State v. Zon- ing Bd. 2.5~ Wl~& 42. 35 NW2d 312 (1948) rear yard. See Nbte 188 ALR 13, 54 (1947). s Berard v. Board of Adjustment, 138 SW2d 731 (Mo App 't940); Neighamer v. Iteyer, 39 Ohio App 532. 177 Nlg 925 (1931), reversing variance granted 'go per~ mit a bay window within a 3-foot side yai. d line; hinge's Appeal, (No. 1), 89 Pa Super 543 (I926); Hodg'e v. Pollock, 223 SC 342, 75 SE2d 752, 755 (1958), office building side yard. where construction of a building in violation of a side yard requirement was the result of a mistake occa- sioned by reckless conduct, the granting of a variance from the side yard requirement was invalidated,a ~Iowever, denial of a variance from a rear yard requirement so as to permit extension of a warehouse wall farther along the property line on a street in an industrial zone was held invalid on ~he ground it was not reasonably related to the promotion of health, safety, morals or general welfare,s An owner of adjoining or nearby property may maintain an action to enforce side yard requirements.6 And a municipality is not estopped from enforcing a side yard require- ment by a fine even though there were submitted drawings and loca- tions of the proposed building, a per- mit was issued, and money was ex- pended in the construction,v § 82-16. Variances and Exceptions. Two major functions of a Board of Adjust'meat (or Board of Appeals aq it is variously called) are 'the granting of "exceptions" permitting special types of property uses upon a finding that the conditions spelled out in the ordinance have been met, and the granting of "variai~ces" from the ordinance, when it finds that "practical difficulties" or necessary hardsh~p~ will arise as a result of strict enforcement of the ordinance. "Hardship" has been terpreted to refer to a harshness peculiar to the situation of the ap-. plicant which is of such a degree of severity that its imposition is not necessary to carry ou} the spirit of the ordinance, and ami)nuts to a sub- stantial and unnecessar~ ihjustme the applicant,s While simple in its statement, this rule has provicted an indefinite standard for zonin boards, and the following discussion of fact situations in decided cases is offered to yield some tigh~ on those conditions where a zoning ~board has found such "hardship" to exist as to warrant the grant of a. ance. The tetras "variance" and "exception" are sometimes, in error, used synonomously,~ but for Zoning purposes they have entirely d:iffer~ eat meanings to as will also be here- inafter disc ussed. §82-17. Meaning and PurpoSe of Variances. A "variance" is the ~elief granted from the literal enf~orce- meat of a zoning ordinance by a board of appeals or adjustmen~ (~r, 4 Misuk v. Zoning Bd. of Appeals~ 11~8 Cons 477, 86 A2d 180, 182-83 (1952). s Wuttke v. Kramer~ 140 NYS2d 214~ 215-17 (1955). 6 Stokes v. Jenkins, 107 NJ Eq 318, 152 A 383 '~1930); Junge~s Appeal (No. 2), 89 Pa Super 548, 5112 ~t926); Junge's Appeal (No. 1), 89 Pa Super 543 (1926). 7 Sea !sle City v. VincL 34 NJ Super 273. 112 A2d !8, 20 (1955). s Heffernan v. Zoning Board of Review, 50 RI 26, 144 A 674 (1929). SFor examples of courts or ordinances erroneously applying the 'terms "variance" and "exceptions' see Troup v. Bird, 53 So 7!.7, 721-22 (Fig t9~51); DeMoss v. Wat- chung, 137 NJL 503, 60 A2d 890 (1945); Gordon v. Hempstea& 196 Misc 954, 93 NYS2d 250 (1949); Yan ~eter v~ West- gate Oil Co. 168 Okla 200, 32 P24 719 (1934): Application of Devereux Foun- dation. Inc. 351 Pa 478. 41 A2d 74~, 746 (1945), appeal dismissed 325 US 6~6, 90 L ed 403 (1945), ordinance term '%xcep- tq~n" held to mean "variance;" Lm~gh v. Zoning Bd. 74 RI 86~, ~0 A2d 839 (~9 ~o Mitchell Land Co. v. Planning ~gon- lng Bd. of Appeals, 140 Conn 527, 10~ A2d 316, 818-19 {1953); ~pplica~ion o~ iD~ 18, mett S. Hid;man Co. 10 Terr . 108 A2d 667 (~954); Lukens v. ~$ning Bd. of Adjustment, 867 Pa 608, 8~ 765. 766-67 (1951); Harrison v. Bd. of Review, 74 RI 185, 59 Aid 86~; 85 (1948). t/cai difficult- er unnecessary hard- antes only where the proposed build, ship, or some s:milar phrase, are lng, alteration, or use "shall net crc. valid and are m'.: an unlawful dele- ate hazards from fire or disease or gat/on of legislative power.aS Even in a jurisdiction which has held un- constitutional Kze delegation of power to a zo_n~:g board to gran~ variances on a sr.>wing of practical difficulties or unzecessary hardship, a statute aut__or~z:ng municipal gov- erning bodies re ?ant variances was sustained a~ains: the charge of an unlawful de~ga:~on of legislative power,so An,~ i:: another jurisdic- tion which had P:~viously held that the grant of unlimited and unregu- lated discretic nrc a board of zoning appeals to set as~% an ordinance in any case was an arbitrary and lawful delegaffon >f power? a pro~ vision empoweri.~:; a zoning board to make specL~l exceptions or yeti- shall not menace the public health, security~ or morals," has been up. he/d? Furthermore~ a statutory authori_ zation to a local governing body ~o empower a zoning commissioner to issue special permits for commercial uses in residential zonss~ where they are in harmony with the Fenerat purposes and intent of the zoning regulations (wRhou~ any showing of hardship)~ was held ~o be a valid delegation of legislative powen Un- der such a statu~e a showing of hardship is not necessary, as it is in the case of a varianceJ~ But an ordinance authorizing a board ~o grant a variance was held unconsti. tutional on the ground the board ss Ne/son v. ]~-~na_ison. 255 Ate 76, 50 Sogd 244, 245--$1 !951); Appeal of Black stone, 8 Harr Del) 230, ]90 A ~97 (~937); State -~. ;-a.z 117 Fla 311, 157 So 65~ (193~; 3fcC:rd v. Ed Bond & C. Co. 175 Ga 6~7 2~5 SE 590, 86 ~L~ 702 (]~22,; Andersen v. Yester, 206 Iowa 452, ~21 NW 85d, 2f~ (2~28); Heath timbre, 187 Md 29f ~9 Agd 799, 80~ (19d~; Inspecr:r cf Bldgs. w Stocklosa~ 250 Mass 52~ 145 NE 262 (192~); FaN- mon~ Inv. Co. v. Wee:mann, 357 ~o 525, 2]0 2Wgd 26 (1548~ board was reversed upon the facts and be:ause of ~he mbsence of rules of guidance; Salisbury v. Ridge- field. 187 NJL ~15 0) Agd 877 standard held adequa:~: Tulsa Off Co. ~orey~ 1~7 NJ[ ¢88. ~0 Agd 802, 208-04 (19d8)~ ~he board was reversed upon the facts; Arverne ~ay 7onset. Co. v. Tha~- chef, 278 NY 222. 1~ NEgd 587 Mirsehell v. We[s:senlerger, 277 App 103~. 100 NYS~d 45z. ~52-58 (1950): & M Inves~men= Co. v. Cu~ler~ ~o~e supra; Van Me~e-: v. Wilcox Oit & Gas Co. 170 OMa 604, 4t Pg~ 90~ (19S5); In Dawson, lg50kl~ 11~ 277 P 22G (1928). Huebner v. ' , PhHzde]yhia Savings Fund, Inc. 1~7 Pa Sur,er ',.~ 192 A 139, 14~ (1927~. disappr~,ed :a part in Holtearn v. Silverman, 838 Pa 146, 12 Aid ~92, 294 (i940), both cases distinguished in De B!asiis v. Bartell, 143 ]Pa Super 483, 18 A2d 478, 483-84 (]941); Heffernan . Zoning Bd. of Review, 50 RI 2~, 144 674 (1929); Spencer-Sturla Co. v..Mem. phis, 155 Term 70, 290 SW 508 (1927~: Timlhofer v. Patri, 240 Wis 404, 3 Nwgd 7~1 (1942). Co~ra, Nieolai v. Board ~f Adjustment, 55 Ariz 283, 101 Pgd 199 (1940,; Welton v. Hamilton, 344 I11 1Fa NE aJa, 337 (1931); Bray v, 292 Ky 162, 1GO SWgd 290 (1942); Jack Lewis Inc. v~ Baltimore, 164 Md 146, A ~20 (19~3); Lee v. Board, 226 ~ 107, 87 SEgd 128. 1G8 ALR 1 (1946); Living. stoa v. Peterson, 59 ND 104, 228 NW 816, 8!8-19 (19~0); Graves v. Johnson, 75 SD 261, ~2 NWgd ad1, 84B-44 {1954); Tex~ Co:~sol. Theatres, Ins. v. Pittillo, 204 8W2~ 296. 398-99 (Tex Civ App 1947); WalWn v Traey Loan & T. Co. 97 Utah ~49, 60, 92 Pgd 724 (1939~. See Note 86 ALR 714 (192a). 89 Desley v. Grimshaw. 410 II1 21, I01 NEgd 275, 277 (i951), dis'kinguish~g Wel- ton v. Hamilton, note 88 supra. ~0 Jack Lewis, Inc. v. Baltimore, no~ 38 supra. ti Heath v. Baltimore, 187 Md 296, 49 Agd 799, 802-03 i~ Oursler v. Board of Zonin~ 204 Md ~97, 104 Agd 5~8 570 (1954). r · ' .... ZON1NG ANU' I~JgAR~I.NLI ou~_ was given unlimited discretionary powers,as A requirement that any variance be in harmony with the general purpose and intent of the act was held a sufficient standard for a zoning board? The reserva- tion in an o2dinance of authority to make variances does not make the ordinance invalid as denying the equal protection of the laws.48 On the other hand, to permit,zoning boards by variances to change sub- stantially the master zoning' plan in use districts created by a zoning' or- dinance constitutes an m~proper delegation of the municipal legisla- tive body's powers? Under its power to grant a variance or dispen- ser/on from the provisions of a zen- lng ordinance a board of zoning peals may not exercise legislative power and may not amend legisla- tive general rules or result in zoning.~7 However, the grant of a variance in a district does not alter the status of the district or rezone,48 and the granting of a variance be- cause of practical difficulties or un- necessary hardships does not consti- tute "spot zoning." 48 Since the early days of zoning, by statute or ordinance a board of zoning appeals has generally had power to ~rant variances ~o in the sound discretion of the board ~ but subject to and limited by statutory or ordinance requirements3 Thus, for example an ordinance authoriz- ~ 4s Gordon v. Hempstead, 196 Miss 954. 93 NYS2d 250 (1949); Jack Lewis, Inc. v. Baltimore. note 38 supra. 44 Bishop v. Board of Zoning' Appeals, ]33 Conn 614, 53 A2d 659 (1947). ~ Gorieb v. Fox, 274 US 603, 71 L ed 1228 (1927); State v. Harrison. 164 La 5~;4. 114 So 159 (1927). See Note 86 ALR -~4. 719 (1933). 9,s Antrim v. Hohlt, 122 Ind App 281, 108 NEgd 197, 200 (1952), grant of vari- ance reversed as being a substantial cnange in the master zoning plan. ~7 Nicolai v. Board of Adjustment, 55 Arlz 283, 101 P2d 199 (1940); Antrim v. Hohlt, note 46 supra; Bray v. Beyer, 292 Ky 162, 166 SW2d 290, 292 (1942); State v. Zoning Bd. of Appeal & Adjust- ment~ 221 La 941, 60 So2d 880 (1952); State v. Kansas City, 325 Mo 95, 27 SWgd 1030 (1930); Lincoln v. Foss, ]19 Neb 6~, 230 NW 592 (1930); James v. Sutton, 229 NC 515, 50 SEgd 300 (1948); Lee v. Board of Adjus~,~ent, 226 NC 107, 37 SEgd 128, 168 ALR 1 (1946~; Livingston v. Peterson, 59 ND 104, 228 NW 816~ $18-19 (1930); Lc(mann v. Board of Adjustment, 9 NJ 336, 88 Agd 337. 339 (1952); Clark v. Board of Zon- ing Appeals, 301 NY $~, 92 NEgd 903 (1950}; Miller v. Silver, 278 App Div 962, 105 NYSgd 474 (1951); State v. Joseph. 1:]9 Ohio St 229, 39 NEgd 515, 138 ALR 1274 (1942); ,,Van Meter v. Wil- cox Oil & Gas Co., 170 Okla 604, 41 P2d 904 (1935); Huebner v. Philadelphia Say. Fund Sec, 127 Pa Super 28, 192 A 139 (1937); Harts v. Zoning Bd. of Review, 80 RI 43, 91 A2d 33, 37 (1952); Texas Theatres v. Pittil!o, 204 SWgd 396 (2'ex Civ App 1947,: Graves v. Johnson, 75 SD 261, 63 NWgd 341, 343 (1954); Wal- ton v. Tracey Loan & T. Co. 97 Utah 249, 92 Pgd 724 (~939~; State v. Gurda, 209 Wis 63, 243 NW 317 ~]932). 4S'East Chicago v. Sinclair Refining Co. 232 Ind 295. 111 NEgd 459, 465 (1953), dictum. 49 Keeling. v. Board of Zoning Appeals, 117 Ind App 314, 69 Xl~2d 613 (1946)~ -~0 E.g., Allen v. Paterson, 98 NJL 661, 121 A 610 (~923], aff'd 99 NJL 532, 124 A 924 (!924l; People v. Board of Appeals, 234 NY 484, 138 NE 416 (1923); Bubis v. Nashville, 174 Te/m 134. 124 SWgd 238 (1939). See Note 168 ALR 13, 102 (1947). 1 Beverly Oil Co, v. Los Angeles, 40 Cal2d 552. 560, 254 P2d 865, 869 (1953); Board of Zoning Appeals 'v. Moyer, 108 Ind App 198, 27 NE2d 905 (1940); Ricci v. Zoning Rd. of Review, 72 RI 58, 47 A2d 923 (t946~; Driskell v. Board of Adjust~ meat, 195 SWgd 594 (Tex Civ App 1946). See also Vetter v. Zoning Bal. of Appeal, 330 Mass 628. Il6 NE2d 277, 278 (1953). See Note 168 ALR 13, 103 (1947). ~ O'Connor v. Overall Laundry, 98 App 29, 183 NE 134 (1932); Miller v. Emerg'ency Housing Comm'n. 330 M~ss 693. 116 NEgd 663. 66f~ (1953~; S~ale v. Kansas 'City. 325 Mo 95. 27 SWgd 1030 (1930); In re Botz, 159 SWgd 367 (Mo lng a zoning board to grant a vari- ance permitting extension of an ex- /sting or proposed building into a more restricted d/strict, limits the extension of use to a building and does not permit a nomstructura] use (e.g., a parking lot/ to be extended into a more restricted district.a The power of a zoning board to grant variances or exceptions may exist by statute without an express provision passed by the local legislative body.~ Sometimes an ordina~nce author- izes the granting of variances by a planning commission.S The power to vary a zoning ordinance in cases of practical difficulties or unneces- sary hardship may be reserved to the city council in all cases;S or to the municipal governing body or, alter- App 1942); North Titus Residential natively, the zoning board? or be granted to the board of adjustment in cases of land within a specified distance of a zone boundary and to the municipal governing body in all other cases on the recommender/on of the board. S § 82-19. Legal Bas~s for Var/encee. Zoning statutes or ordinances gen- erally provide 'that before a vari- ance may be granted there must be proof that literal enforcement of the zoning ordinance would cause property owner "practical difficul. ties or unnecessary hardsbip.'-~ However, in the absence of any quirement therefor, special hardshin need not be established to obtain variance.TM Under different zoning the auspices of the Federal DepartmerA Ass'n 'v. Board of Zoning Appeals, 127 NYSgd 502. 504 (1954): Ports v. Board of Adjustment. 133 NJL 230, 43 A2d 850 (1945,; Lee v. Board of Adjustment, NC 107, 37 SE2d 128, 1(78 ALR 1 (194~); Van Me,er v. ti. F. Wilcox Oil & Gas Co. 170 Okla 604, 41 Pgd 904 (1935); Appli- cation of Devereux Foundation, Inc. 351 Pa 478, 41. A2d 744, appeal dismissed 326 US 58~,90 Led 403 (~945,; Hegemony. Zoning Rd. of Review-, 50 RI 26, 144 A 674 (1929). See Note 168 ALR 13, 103 (1947, a Spencer v. Board of Zoning Appeals, 141 Corm 155, 104 Agd 373. 376 (1954~. ~ Indian Terrkory Illuminating[ Oil Co. v. Larkins, 168 Okla 69, 3l Pgd 608 (1934). See Note 1~8 ALR 13, 104 (1947). S See Bradbeer v. England, 104 Cat Appgd 704. 232 P2d 308, 311 (1951). ~ State v. Gunderson, 198 Minn ,51, 268 NW 850 (1936~. 7Downey v. Grimshaw, 410 II~ 21, ~01 NEgd 275, 270 (1951), query by the court as to the validity of the delegation to the zonin~ board. s Verniero v. Passaic, 134 NJL 71 45 Agd 890 (~946~. See Note 168 ALR' 104 (1947).' S NicolM v. Board of Adjustment, 55 Arlz 283, 101 P2d 199 (1940), "It is evi- dent that this statute [authorizing vari- ances] . . . ~vas c-;pied from the Standard · State Zoning Enabling Act prepared under of Commerce, which ac~ has been adorned practically verbatim by approximatelv'tw, thirds of the states, including Ari'm,n, Utah, Oldahoma, Texas, Missouri. Dakota and Iowa;" Florentine v. Dar/e:: 142 Conn 415, 115 Arid 328. 322 "exceptional di~culty or unusual hard. ship:' Tau Alpha Holding Corp. v. Board of Adjustments, 126 Fla 858, 171 So (1937); Real Properties, Inc. v. Board of Appeal. 319 Mass 180, 65 NEgd 168 ALR 8 (1946j; State v. Gunders~. 198 Minn 5~, 268 NW 850 (193~); Fr,- man v. Board of Adjustment 97 Mont 3.t2. 34 Pgd 534 (1934); Vo~el v. Board Adjustment, 92 NH 195, 27 A2d t05 (1942 ~; Home Builders Ass'n v. Paramu~, 7 NJ 335, 81 Agd 753 (1951); Hereon Board of Adjustment, 29 NJ Super 164, 102 A2d 73, 76 (1953), excepMona] undue hardship; Miller v. Silver, 278 Div 962, 105 NYS2d 474, 475 (1951); v. Board of Adjustment, 226 NC 107, 37 SE2d 128, 168 ALR I (1946); Thompson v. Phillips Petrolemn Co. 194 OMa ~7, t47 P2d 451 (1944): Sflverco, Inc. v. Zom ing Rd. of Adjustment. 379 Pa 497, Agd 147, 150 (1954). See No,es 86 ALR 659, 693 (1933); 168 ALR 13, 26 (1947). ' ~0 Miller v. Emergency Housing Corem , 330 Mass 693, llfi NE2d 663, 666 (1953)~ a municipal zoning board may grang variance only where literal enforcement would involve substantial hardship, bu~ s~ate Emergency Lousing CommisMon, ordinances, general provisions as to granting variances have been held to be independent of specific provi- sions in the same ordinances,n but by other courts to be qualified by spec/fie provisions? Several courts have stated that there is no precise definition of the terms "practical difficulties" and "unnecessary hard- ship," but that the words must be given a reasonable construction.~S One court has stated that "dnneces~ sary hardship" as a prerequisite to ?rantin? a zoning variance means a hardship peculiar 'to the situation of the applicant which is of such a de- ?tee of severity that its imposition is no~ necessary to carry out the spirit of the zoning ordinance, and amounts to a substantial and um necessary injustice to the appli- cant.TM Another court has accurately ~bserved that in the phrase "prac- ~icaI difficulties or unnecessary hardship" the courts have appar- ently nor regarded the words "proc- ileal difficulties" as having' any sig- nificance in themselves, and have usually construed the phrase as a whole.~S To grant a variance because of unnecessary hardship there must be proof by the applicant: that he is suffering hardship which is substam tim and of compelling' force,~ aris- ing out of application of the zoning regulations rz and resulting from in- terference of the zoning ordinance with ordinary legal property rights;~ that the hardship pertains to the lot for which a variance is requested, and not to other premises of the applicant ? that the plight of the owner is due to unique circum- stances and not to the general con- ditions of the neighborhood, since general hardship is relievable only by a revision of the general rule of the ordinance, through the legisla- tive process, or by the judicial pro~ ceos ?0 that the hardship pertains to an individual plot to which, because of its unique situation and singular circumstances, application of the general zoning rule would constitute a wholly unnecessary and unwar- ranted invasion of the righ~ of pr[ vote property :~ that the use restric- tion as applied to his property is so unreasonable as to constitute an ar- bitrary and capricious interference with the basic right of private prop- reviewing a board's action, is not subject to this l!mkation; Perri w Zoning Rd. of Appeals, 283 App Div 818, 128 NYS2d 774. 775 (1954), area variance. il St. John's Roman Catholic Church w Board of Adjustments, 125 Conn 714, 8 Agd 1 (193917 Bosworth v. Lexington, 277 Ky 90. 125 SWgd 995 (1939); Reed v. Board of Standards & Appeals, 255 NY 126, 174 NE 301 (1931). See Note Jg8 ALR 13, 20 (1947~. 1~ Bennett v. Board of Appeal, 268 Mass -t19. 167 NE 659 (1929); Ports v. Board of Adjustment, ~33 NJL 230, 43 Agd 850 ,194.~: Harrington v. Board of Adjust- ment. [24 SWgd 401 (Tex Civ App 1939~. ~a Rice: v. Zoning Board of Revie~v, 72 RI 58. 47 A2d 923 (1946); Devaney v. Board of Zoning Appeals, 132 Corm 537. 45 Agd 828 (19467; B~tz v. Carrett, 236 5Io App 7.~6, 159 SWgd 367 (1942). See Note t65 ALR 13. 26 (1947). 14 CaccJa v. Zoning Bd. of Review, 113 A2d 870, 872 (RI 1955). ~ Devaney v. Board of Zoning Appeals, note 13 supra. is Application of Devereux Foundation, ][nc. note 2 supra. 17 Brackett v. Board of Appeal, 311 Mass 52. 39 NEgd 956 (1942). ~s Winters v. Zoning Rd. of Review, 80 RI 275. 96 A2d 337, 340 (1953). ~s Brackett v. Board of Appeal, note 17 supra. ~0 Beirn v. Morris, 14 NJ 529, 103 A2d 361, 364 (1954): Taxpayers' Ass'n v. Board of Zoning Appeals, 301 NY 215, 93 NE2d 645, 646 (1950); North Titus Resi- dential Ass'n v. Board of Zoning Appeals~ 127 NYSgd 502, 504-05 (1954). ~,1 Ports v. Board of Adjustment, note 12 supra. tical diffcuky or unnecessary hard- ship, or some s:milar phrase, are valid and are no.: an unlawful dele- gation of legisla:fve power.aS Even in a jurisdiction which has held un- constitutional ~he delegation of power to a zon:_-__~ board to grant variances on a slowing of practical difficulties or unzecessary hardship, a statute authorizing municipal gov- erning bodies re ?ant variances was sustained stains: the charge of an unlawful delete:ion of legislative power? A_nd i:: another jurisdic- tion which had previously held that the grant of unlimited and unregu- lated discretion ~c, a board of zoning appeals to set as!.Je an ordinance in any case was an arbitrary and un- lawful delegar5on ~f power,~0 a pro.- vision empoweri~:% a zoning board to make special e?-:ceptions or yeti- antes only where the proposed build, ins, akeration, or use "shall not cre~ a~e hazards from fire or disease or shall not menace the Public health, security, or morals;" has been held? Furthermore, a statutory authori_ ration to a local governing body to empower a zoning commissioner to issue special perm/ts for commercial uses ~n residential zones, where they are in harmony with the general purposes and intent of the zoning regulations (without any show/n.,,, of hardship)~ was held to be a valid delegation of legislative power. Un- der such a statu~e a showing of hardship is not necessary~ as it is in the case of a variance.~ But an ordinance authorizing, a board to grant a variance was held unconsfi. tutional on the ground ~he board ss Nelsou v. -F' :ma[ !son, 255 Als 76, 50 Soad 244, 248-52 !951); Appeal of Blackstone, 8 H~-rr Del) 230, 190 A 597 (1937); State 7. \'?~_z 117 Fla 311, 157 So 051 (1934); MbC:rd v. Ed Bond & C. Co. 175 Ga 667. 1~5 SE 590, 86 ALR 703 (]932); Ander}cn v.._7ester, 206 Iowa 452, 221 NW 354, 35~ (2~28); Heath v. Bal- timore, 187 Md 29f 49 Agd 799, 803 (1946); Inspec:_-r c_-' Bldgs. v. Stocklosa, 250 Mass 52, 145 .N-Z 262 (1924); Fari- mont Inv. Co. v. Wee:mann, 357 Mo 625, 2]0 SWgd~2~ (i~48~. board was reversed upon the facts a~d be:ause of the,absence of rules of guidance: Salisbury v. Ridge- field, 137 NJL 5_-5 {0 Aad 877 (1948), standard held ad_=.qu~-_~: Tulsa Oil Co. v. Mercy, 137 NJL 38& ~0 Aad 302, 303-04 (1948)~ the board was reversed upon ihe facts; Arverne Eay fonstr. Co. v. That- cher, 278 NY 2?2. 15 NERd 587 (1938); Mirschetl v. Wei.ssenberger, 277 App Div 1039, 100 NYSad 452 452-53 (1950): L & l~f lnvestmen~ Ce. ~. Cutler, note 37 supra; Van Meter v. Wilcox 0il & Gas Co. 170 OMa G04, 41 Pac' 904 (1935); In re Dawson, ]36 Okl~_ ]-iY. 277 P 226 (1928); Huebner v. Phii~de27hia Savin2's Fund, Inc. 127 Pa Sup,er 29 192 A 139, 143 (1937), disapproTed in part in Hollearn v. Silverman, 33S Pa ~4~. 12 A£d 292, 294 (1940), both cas~s d~stinguished in De B/aMis v. BarteI1, 143 'Pa Super 483, Agd 478. 483-84 (1941); Heffernan Zonin~ Bd. of Review, 50 RI 26, 14.1 A 67,1 (]929); Spencer-Sturla Co. v. Mem- phis, 155 Term 70, 290 SW 608 (I927t; Thalhofer v. Patti, 240 W{s 404, 3 NWad 761 (1942). Con~ra, Nicolai v. Board of Adjustment, 55 Ariz 283, ]01 Pgd I99 (1940); Welton v. Hamilton, 344 Ill 82, 176 NE 333, 337 (1931); Bray v. Beyer, 292 Ky 162, 16(i SWgd 290 (1942); Lewis Inc. v. Balti~nor% 164 Md 146, 164 A 220 (1933); Lee v. Board, 226 ND 107. 37 SEgd 128 168 ALR 1 (1946); Living. ston v. Peterson, 59 ND 104, 228 NW 818-19 (1930); Graves v. Johnson, 75 SD 261, 63 NWgd 341, 343-44 (1954); Texa~ Co:~sol. Theatres, Inc. v. Pittillo. 204 SWgd 396. 398-99 (Tex Civ App 1947); Walton w Tracy Loan & T. Co. 97 Utah 249, 259- 60, 92 Pgd 724 (1939~. See Note 86 ALR 714 (1933). so Dowmey v. Grimshaw. 410 ~11 21, 10t NERd 275, 277 (1951). distinguishing We_l- ton v. Hamilton, note 38 supra. ~0 Jack Lewis, Inc. v. Baltimore, note supra. ~ Heath v. Baltimore, 187 Md 296, 49 A2d 799. 802-03 (1946). is Oursler v. Board of Zoning Appeals, 204 Md 397, 104 A2d 568, 570 (1954). ZONING AND' t~LAiNNING' - - was given unlimited discretionary poxversfis A requirement that any variance be in harmony with the general purpose and intent of the act was held a sufficient standard for a zoning board.~ The reserva- tion in an o~dinance of authority to make variances does not make ~he ordinance invalid as denying the equal pro~ection of the laws.as On the other hand, to permit.zoning boards by variances to change sub- stantial]y the master zoning plan in use districts created by ~ zoning' dinance constitutes an improper delegation of the municipal legisla- tive body's powers? Under its power to grant a variance or dispen- sation from the provisions of a zon- ins ordinance a board of zoning peals may not exercise legislative power and may not .amend legisla- tive general rules or result in zoning3* However, the grant of a variance in a district does not alter the status of the district or rezone,as and the granting of a variance be~ cause of practical difficulties or un- necessary hardships does not consti- tute "spot zoning." 49 Since the early days of zoning, by statute or ordinance a board of zoning' appeals has generally had power to grant variances ~o in the sound discretion of the board 1 but subject to and limited by statutory or ordinance requirements3 Thus, for example an ordinance authoriz- ' 4&Gordon v. Hempstead, 196 Misc 954, 93 NYSad 250 (1949); Jack Le~vis, Inc. v. Baltimore. note 38 supra. ~ Bishop v. Board of Zoning' Appeals, ];J3 Corm (~14, 53 Agd 659 (1947). 48 Gorieb v. Fox, 274 US 603, 71 L ed ~228 (1927): State v. Harrison, 164 La 5C, 4, 114 So 159 (1927). See Note 86 ALR 7~4, 719 (1933). 46 Antrim v. I-Iohk, 122 Iud App 681, 102 NE2d 197, 200 (1952), grant of vari- ance reversed as being a substantial change in the master zoning plan. 4~ Nicolai v'. Board of Adjustment, 55 Ariz 283, 101 P2d 199 (1940); Antrim v. Hohlt, note 46 supra; Bray v. Beyer, 292 Ky 162, 166 SW2d 290, 292 (1942); State v. Zoning hd. of Appeal & Adjust- ment, 221 La 941, 60 Soad 880 (1952); State v. Kansas City, 325 Mo 95, 27 SW2d 1030 (1930); Lincoln v. Foss, 119 Neb 666, 230 NW 592 (1930); James v. Sutton, 229 NC 515, 50 SEgd 300 (1948); Lee v. Board af Adjustment, 226 NC 107, 37 SE2d 128, ]68 ALR l (1946); Livingston v. Peterson. 59 ND 104~ 228 NW 816, §18-19 (1930); Leimann v. Board of Adjustment, 9 NJ 336, 88 A2d 337, 339 (1952): Clark v. Board of Zon- ing Appeals, 301 NY $6, 92 NERd 903 (1950); Miller v. Silver, 278 App Div 962~ 105 NYS2d 474 (1951~; State v. Joseph. 1:;9 Ohio St 229. 39 NE2d 515, 138 ALR 1274 (1942); Nan Meter v. Wil- cox Oil & Gas Co.. 170 Okla 604. 41 Pad 904 (1935); Huebner Vo Philadelphia Say. Fund Soc. 127 Pa Super 28, 192 A 139 (1937); Harte v. Zoning hd. of Revigw, S0 RI 43, 9t A~d 33, 37 (~952); Texas Theatres v. Pittfl]o, 204 SWad 396 (Tex Civ App 1947): Graves v. Johnson, 75 SD 261, 63 NWgd 341~ 343 (1954); Wal- ton v. Tracey Loan & T. Co. 97 Utah 249, 92 Pgd 724 (1939); State v. Gurda, 209 Wis 63, 24,2 NW 317 (1932). ~s East Chicag~ v. Sinclair Refining Co. 232 Iud 295. 111 NERd 459, 465 (1953), dictum. ~9 Keeling v. Board of Zoning'Appeals, 117 lnd App 314, 69 NEgd 613 (1946). 50 E.g., Allen v. Paterson, 98 NJL 661, 121 A (110 (1923), aff'd 99 NJL 532, 124 A 924 (!924~; Pepple w Board of Appekls, 234 NY 484, 138 NE 416 (1923); Bubis v. Nashville, 174 Term 134, 124 SWgd 238 (1939). See Note ][68 ALR 13, 102 (1947). 1 Beverly Oil Co. v. Los Angeles, 40 CMgd 552, 560, 254 Pgd 865, 869 (1953); Board of Zoning Appeals v. Meyer, Iud App ]98, 27 NERd 905 (1940); Ricci v. Zoning Bd. of Review, 72 Rt 58, 47 A2d 923 (1946): Driskell v. Board of Adjust~ merit, 195 SWgd 594 (Tex Civ App 1946). See also Vetter v. Zoning' Bal. of Appeal, 330 Mass 628. ~1(1 NERd 277, 278 (1953). See Note 168 ALR 13. 103 (1947). a O'Connor v. Overall Laundry, 98 lad App 29~ 183 NE 134 (1932); Miller v. Emergency Housing Corem'n, 330 Mass 693. 1t6 NEgd 6(12 666 (1953); State v. Kansas City~ 325 Mo 95, 27 SWgd 1030 (1930); In re Botz, 159 SWgd 367 (Mo erty,e~ or the use restriction, view- ing the property in the setting of environment, is so unreasonable as to be confiscatory,28 because the ap- plicant is suffering such hardship in effect deprives the applicant of his property without compensa- tion ;~a that the property for which a variance is sought cannot be util- ized for a conforming use,~5 or the premises cannot resonably be put to a conforming use,~ or cannot yield a reasonable return if used only for a purpose allowed in 'that zone;~ that granting' the variance will not alter the essential character of the neighborhood or locality,es or result in injury or injustice %o othersFs The criterion as to whether a proposed variance would alter the character of the neighborhood may properly be applied to an unde- veloped locality by considering an- ticipated future development.80 A variance must do substantial justice to all and not to just one owner.a~ The test to be applied in granting a variance is (1) whether a variance will promote public health, safe~5 and general welfare, after giving reasonable consideration to the eha~ acter of the district; (2) the prop~ erty's peculiar suitability for par* titular uses; (3) conservation of property values; and (4) direction of building development in accord. ante with a well considered plan.*~ A variance from a zoning ordL hence must be in harmony with its general purpose and intent;88 it should not be used ro accomplish what is in effect a substantial change in the uses permitted in a residence zone.S~ A few cases have held -ghat a requirement that vari- ances be in harmony with the gem ~s Scaduto v. Bloomfield, 127 NJL 1, 20 A2d 649 (1941). 28 Beirn v. Morris, note 20 supra. ~a Caleagno v. Webster, 265 App Div 687, 41 NYS2d 140, aff'd without opinion, 291 NY 701, 52 NERd 592 (1943). es Island Park v. I-Io~vard, 258 App Div 750, 15 NYS2d 277 (1939), appeal dis- missed 282 NY 588, 25 NE2d 142 (1940). e6 Brackett v. Board of Appeal, note 17 supra. e~ East Chicago v. Sinclair Refining Co. 232 Iud 295, 111 NE2d 459, 465 (1953l; Taxpayers' Ass'n v. Board of Z~ning peals, note 20 supra; North Titus Resi- dential Ass'n v. Board of Zoning' Appeals, note 20 supra. See also Evans v. Little Rock, 221 Ark 252, 253 SW2d 347, 348 (1952). 28 East Chicago v. Sinclair Refining Co.; Taxpayers' Ass'n v. Board of Zoning Ap- peals; North Titus Residential Ass'n v. Board of Zoning Appeals, all note 27 su~ pra. See Note 168 ALR 13, 39 (1947). eS Levy v. Board of Standards & peals, 267 NY 347, 196 NE 284 (1935~; Huebner v. Philadelphia Say. Fund 127 Pa Super 28. 192 A 139 (1937). See Note 168 ALR 13, 40 (1947)o ~o Holy Sepulchre Cemetery v. Board of Appeals, 271 App Div 33, 60 NYS2d 750 (194~). 8~ Tenlan Realty Corp. v. Board of Standards & Appeals, 251 App Div 311. 296 NYS 740, aff'd without opinion, 27~t NY 594, ~2 NE2d 592 (1937). s2 Heady v. Zoning Bd. of Appeals, I3~ Conn 463~ 94 A2d 789~ 791 (1953); Tau Alpha Holding Corp. v. Board of Adjust. ments, 126 Fla 858, 171 So 819 (1937); Zimmerman v. 0'Meats, 215 Iowa 1145, 245 NW 715 (1932); Brackett v. Board of Appeal, 311 Mass 52, 89 NE2d (1942;; Freeman v. Board of Adjaab meat, 97 Moat 342, 34 P2d 534 (1934): Fortune v. Zoning Bd. 95 NH 211, 60 A2d 133 (!948); Ports v. Board of Adjust- meat. 133 NJL 230~ 43 A2d 850 (1945); People v. Clarke, 216 App Div 351, 215 NYS 190 (1926); Spadafora v. Fergu- son, 182 Mist 161, 48 NYS2d 698 aff'd 268 App Div 820, 50 NYS2d 408 (1944l; Lee v. Board of Adjustment~ 226 NC ]07, SE2d 1o8, 168 .ALR 1 (1946); Thomp- son v. Phillips Petroleum Co. 194 Okla 147 P2d 451 (1944): Kurman v. Phila- delphia Zoning Bd. of Adjustment, 351 Pa 247, 40 A2d 381 (1945); Thalho£er v- Pat-d, 240 Wis 404. 3 NW2d 761 (1942). See Note 168 ALR 13, 37 (1947). 88 i,bid. sa Heady v. Zoning Bd. of Appeals, no~e 32 supra. eral spirit and intent of the zoning ordinance prevents the authoriza~ tion as a variance of any use or structure ~vhich is prohibited by the ordinance in that district,~ but other cases have held to the eom trary,ss and the overwhelming ma- jority of courts, without ruling ex- pressly on %he issue as phrased above, have approved variances for uses and structures which do not conform to the regularly designated uses for the particular d{strictfi~ A board is limited to granting variances which will not be contrary to the public interest,os The phrase "contrary to the public interest" must be given a reasonable interpre- tation and should be taken to mean what in the judgment of a reason~ able man would unduly, and in a marked degree, conflict with the zoning' regmlations.8~ The "public interest," as affected by a requested variance, has been held zo be that of the owners and occupants of %he neighboring properties,a° or of all the inhabitants of the municipality, and not just the residents of a par- ticular subdivision or district.4~ Furthermore, it has been held that a board is not obligated to grant a variance on the grounds of unneces- sary hardship but must balance such hardship against the equities by de- termining to what extent the vari- ance would interfere with the whole zoning plan and the rights of other property owners.42 "The enforce- ment of every zoning ordinance may of necessity result in practical ficu]ties and in many instances may work hardships, but this does not necessarily amount to illegality on the part of a zoning' board in not varying the ordinance." ~s In determining whether to grant a variance a zoning board may con- sider the time when tbs applicant acquired an interest in the premises as related to the time when the zon- ing ordinance was adopted,aa Some courts, while agreeing with the foregoing principle, have held that the purchase of property with full knowledge of zoning restrictions is ss Bray v Beyer, 292 Ky 162. 166 SW2d 290 (1942); Lee v. Board of Adiustment, nors 32 supra; Livingston v. Peterson, 59 ND 104, 228 NW 816 (1930l; Herring- ton v. Beard of Adjustment, 124 SWnd 401 ~Tex Civ App 1939~; Walton v. Traey Loan & T~ Co. 97 Utah 249, 92 P2d 724 ~1939). See also Nicolai v. Board of .Ad- justment, 55 Arlz 283,101 Pfid 199 (1940); aud Note 168 ALR 13, 38, 48 (194'7). as Freeman v. Board of Adjustment, 97 Moat 342, 34 P2d 534 (1934); Oklahoma City v. Harris, 19~ Ok~ 125, 126 P2d 928 ( 1941, s7 See this section passim for cases too numerous to list. as Nicolai v. Board of Adjustment, note 35 supra; Tau Alpha Holding Corp. v. Board of Aajustments, note 32 supra; Freeman v. Board o£ Adjustment, note 36 supra: In re Dawson, 136 Okla 113, 277 P 226 (1928); Buckminster v. Zoning Bd. of Review. 69 R1.396, 33 Agd 199 ~1943). See zNote 168 ALR 13, 36 ('1947). 89 Heffernan v. Zoning Bd, of Review, 50 RI 26, 144 A 674 (1929). 40 Application of Devereux Foundation, Inc. 351 Pa 478. 41 A2d 744, appeal dis- missed 326 US 686, 90 L ed 403 (1945). 41 Oklahoma City v. Harris, note 36 su- pra. See Note 168 ALR 13, 37 (19471. t2 Holy Sepulchre Cemetery v. Board of Appeals, note ~0 supra. See also Braekett v. Board of Appeals. note 32 supra; Her- man v Board of Adjustment~ 29 NJ Super 164, 102 A2d 73, 76 (1953), statute; Botz v. Garrett, 236 Mo App 566, 159 SW2d 367 (1942). aS Board of Zoning .Appeals v. Waintrup, 99 Ind App 576, 193 NE 701 (1935~. aa Devaney ~. Board of Zoning Appeals, 132 Corm 537, 45 A2d 828 (1946); Prusik v. Board of Appea4 262 Mass 451, 160 NE 312 (1928); Schaible v. Board of Adjust- ment, 134 NJL 473, 49 A2d 50 (1946); Hol~ Sepulchre Cemetery Co. v. Board of Appeals, note S0 supra; Applieatio~ of Devereaux Foundation, Inc. note 40 supra; Potter v. Zoning Bd. of Review, 65 RI 286, 14 A2d 669 (1940). not an absolute bar to a variancefis Other courts have held that one who knowingly acquires land for a pro- hibited use cannot thereafter have a variance on the ground of special or peculiar hardship,~6 and that, where the zoning, for a lot has not been changed since the applicant purchased it, he is in no position to complain that the zoning ordinance created unnecessary hardship.47 Likewise, it has been held that one with an option to buy may not have a variance on the ground of unneces- sary hardship;4S and that one who commenced a permitted use eon- tiguous to a district in which the use was prohibited desires to ex~- pand it into the contiguous district, there is no unnecessary hardship warranting, a variance, smce the owner commenced operations in what was known to be a restricted neighborhood.4s The knowledge of the president of a corporation at the time of purchasing land that its pro- posed use was prohibited by a zon- ing ordinance, will be imputed to the corporation.So It has been held that hardship cannot be availed of by an owner to remove from a dass~ ification a plot just incorporated therein since a variance for such purposes would amount to an amendment or partial repeal, or frustration of a legislative measure just adopted.~ However, the pur~ chase of property after the passage of a zoning ordinance restricting the use thereof, does not estop the purchaser from attacking the va- lidity of the ordinance as applied to his property.~ And a purchaser of residentially-zoned realty under a contract providing for reconveyance to the vendor, at the purchaser's option, if within a year the pur- chaser is unable to obtain a change of zoning so as to ~permit business use of the realty, is not precluded from attacking the zoning' ordinance as amended after the purchase so as to limit business use to parking.* That some nonconforming uses have existed in the neighborhood since zoning went into effect is of some consequence.~ It has been held that the fact that the proposed use would e×empt the land from taxation may be considered in de- 46 Beirn v. Morris, 14 NJ 529, 103 A2d 361, 364 (1954,; Potter v. Zoning Bd. of Review, note 44 supra. 46 Devaney v. Board of Zoning. Appeals, 132 Conn 537. 45 A2d 828 (]946); Glee- son v, Keswick Improvement Ass'n, 197 Md 46, 78 A2d 164 (195!t; Lumund v, Board of Adjustment~ 0 NJ quper 474. 69 Agd 3(;1 (1949): Clark v. Board of Zon- ing' Appeals, 301 NY 86, 92 NE2d 903 (1950); Vernon Park Realty !nc. v. Mount Vernon. ]22 NYS2d 78. 86-87 (1953~: aff'd 307 NY 493 121 NE2d 517 (1954~; Application of Devereux Founda- tion. Inc. note 40 supra See Note 158 ALR 13. 45 (1947). 47North Titu~ Residential Ass'n v. Board of Zoning. 'Appeals, 127 NYS2d 502. 505 ~1954~ See also the cases in nora 46 supra. 4s Lee v. Loard of Adjustment, 226 NC 107, 37 SE2d 128, ]68 ALR i (194~), with which compare: Carson v. Board of Ap- peals, 321 Mass 649, 75 NE2d 116 (1947); Jersey Triangle Corp. v. Board of Adjusb ment, 127 NJL 194. 21 A2d 845 (t941); Dunham v. Zoning Bd. 68 RI 88, 26 Agd 614 (1942). See Note 168 ALR 13, 106 (1947 t. 49 Stolz v. Ellenstein. 7 NJ 291~ 81 A2d 476 (1951). See Note 1~8 ALR 1;~, 41 (1947). so Rush v. Board of Adjustment, 22 NJ Super 45, 91 A2d 588 (1952). lin re Mark Block Holding Corp. 141 Mise 818, 253 NYS 321 (1931). ~ Forbes v. Hubbard, 348 III 1~6, 181] NE 767 (1932). 3 Vernon Park Realty, Inc. v. Mount Vernon, 30'7 NY 493, 121 NEgd 517, 520 (1954). 4Hammond v. Board of Appeal, Mass 446, 154 NE 82 (1926). termining whether to grant a vari- ance for such use.~ While aesthetic considerations alone may not be sufficient to xvarrant the denim of a variance, they need not be complete- ly disregardedfi On the other hand, the existence of a building or use restriction contained in an instru- ment of title prohibiting a proposed use for which a variance is re.- quested, is immaterial to the grant- mg of the variance and'is not a su~cient ground for denying 'the varianceY And a variance which is justified should not be refused be- cause of a eompetitor's objectionsos A board may grant a variance upon proof, for example~ that by literal enforcement of the zoning ordinance: the owner would suffer unnecessary hardship due to special, peculiar, singular or unique circum- stances and not to the general con- ditions in the neighborhood; s the particular piece of land is not suit- able for any conforming use desig- nated by the zoning ordinanceJ° except possibly farming,n or except with a variance,~ particularly if there is no evidence that public health, safety or welfare will be ad- versely affected, or that neighbor- in~ property value will be adversely affected; ~$ that the land would not yield a reasonable return if used only for a purpose allowed in that ~ Holy Sepu)chre Cemetery Co. v. Board of Appeals, 271 App Div 33, 60 NYS2d -50 (1946). ¢ Ibid. See Note 168 ALR 13, 44 (1947) ? In re 5lichener's Appeal. 382 Pa 40], 115 A2d 367, 369-70 (1955), citing O'- Rourke v. Teeters, 63 Cai Appgd 349, 146 P2d 983 (1944), Maplewood Tp. v. Mar- ~olis, 102 NJ Eq 467, 141 A 564 (1928), Oklahoma City v. Harris, 191 Okla 125. 126 P2d 988 ~1941), and Gulf Refining Co. v. Dallas, 10 SW2d ~5i (Tex Civ App ~928). s Benson v. Zoning Bd. of Appeals. 129 Conn 280. 27 A2d 389 (1942); Lehrer v. Board of Adjustment, 137 NJ 100, 58 A2d 265 (1948): .Clinton v. Standard 0it Co. 193 NC 432, 137 SE 183, 55 AL~ 252 (1927~; Ward's Appeal, 289 Pa 458, 137 A 630 (1927). 9 Searles v. Darling, 7 Terr (Del) 263, 83 A2d 96 (1951~' Selligman v. Western & So. Life Ins. Co. 277 Ky 551. 126 SW2d 419 (1938l: Easter v. Baltimore, 195 Md 395,-73 Agd 491 (1950); Braekett v. Board of Appeals, 311 Mass 52. 39 NE2d 956 (1942); Home Builders Ass'n v. Para- taus, 7 NJ 335, 81 A2d 753 (1951), "a sine qua non to the exercise of the Board of Adjustment's authority to grant a vari- ance''; Tzeses v South Orange, 22 NJ Super 45, 91 A2d 588,595 (2952). grant of variance reversed because hardship gen- eral; Lumund ~. Board of Adjustment, ~ NJ Super 474, 69 A2d 361 (1949); Clark v. Board of Zoning Appeals, 301 NY 86, 99- 91.92 NE2d 903 (1950); Taxpayers' Ass'-n v. Board of Zoning Appeals, 301 NY 215, 93 NE2d (;45 /1950): Otto v. Steinhilber, 282 NY 7], 24 NEgd 851 (1939); ¥ali- eenti's Appeal, 298 Pa 276, 283, 148 A 308, 311 (1929): Strauss v. Zoning Bd of view. 72 RI 107. 48 A2d 349 (1946). See Note 168 ALR 13. 28 {1947). 10 Parsons v. Board of Zoning Appeals. 140 Corm 290, 99 A2d 149, 151 (1953); Forde v. Miami Beach- 146 Fla 676, 1 So2d 642~ 646 11941); Brackett v. Board of Ap- peal, 31! Mass 52. 39 NE2d 956 (1942~: Ward v. Scott. 16 NJ 16, 105 A2d 851~ 855 ~1954); Rockdalc Constr. Corp. w Cedar- hurst, 30~ NY 5q9~ 520-21, 93 NE2d 76 (i950~: Petrarca v. Zoning B& of view, 78 RI 130, 80 A2d 156~ 157 ~1951)- n DeMoss w Watchung, 137 NJL 503, 60 A2d 890 (1948~. 1~ Brackett v. Board of Appeal, no~e 10 supra; Redee -'. Lee. 14 NJ Super 188. 81 A2d 517,518-19 (1951); Heffernanv. Zom lng Bd. of Review, 50 RI 26, 144 A 674 (1929). Compare, Herman v. Board of Adjustment, 20 NJ Super 164~ 102 A2d 73, 77 ~1953), where alternate lots were con- veyed to wife to avoid ordinance, no vari- es Bayport .Civic Ass'n v. Koehler, 138 NVS2d 524. 5~1-32 (t954). See also Downey v. Grimshaw, 410 Ill 2L 101 NE2d 275. 277-80 ~1951 ), property was not suit- able for single family dwellings because of its domination hy high sehooI across the street and public park on another side. .) zone; l~ the use of property for a conforming purpose would not be profitable; 15 the owner is unable to rent the property for a conforming use; ~s enforcement would deprive the applicant of any practical eco- nomic use of his property without commensurate advantage to other neighborhood properties; 17 the pro- posed use is the only profitable use to which the land might be purls without doing violence to business principles; is the property would not be valuable for any other pur- pose; ~0 the land was purchased for a proposed use prior to adoption of a zoning ordinanee;~ a permit with a time lirnit was issued to build a conforming use, construction was starred, the area was rezoned, and the permit 'was revoked under the time limit because the building had not been completed;2~ a use in a permitted zone requires a slight ex- tension into a restricted zone;~a there is an irregular delimitation of the business and residence districts in the particular ares ;~ the pi'op. erty is adjacent to several business properties;~s the variance will per~ mit a use similar to nonconforming uses already existing on both sides of the plot; ~ the neighborhood in which a variance to permit a com. mercial use is desired is a mixed commercial and residential dis- trict; 3, except for vacant lots and a park. land around the applicant's resident/ally-zoned land is devoted to business and industry for several blocks: 2$ the zoning requirement has been so habitually ignored or consistently officially varied that only a small proportion of the lots conform: ~9 the installation of ad- ditional equipment is necessary to l~ Sehaible v. Board of Adjustment. 134 NJL 473. 49 A2d 50 (1946}; Taxpayers' Ass'n v. Board of Zoning Appeals, 301 NY 215, 93 NE2d 645 (1950); Heffernan v. Zoning Bd. of Review, note 12 supra. But see. holding that fact fair return canno~ be had from conforming use does not re- quire granting of variance in all eases: Young' Women's Hebrew Ass'n v. Board of Standards & Appeals, 2~6 NY 270, 194 NE 751. appeal dismissed sub nom. Gelkom Realty Corp. v. Young Women's Hebrew Ass'n. 296 US 587, 80 L ed 382 (1925). See No~e 168 ALR 13, 32 (1947). ~ Syrian Orthodox Charitable Soe. Zoning' Bd. 53 RI 232, 165 A J78 (1933). ~Hammond v. Board of Appeal 257 Mass 44~ 154 NE 82 (1926). Contra, Phillips v. Board of Appeals, 286 Mass 469, 190 NE 601 (19a4); In re Jennings tare, 330 P~, 154, 198 A 62[ (1938). x7 Schaible v. Board of Adjustment, 134 NJL 473~ 49 A2d 50 (t945). lS East Providence Mills, thC. v. Zoning' Bd. of Review 5~ RI 428, 155 A 531 ~9Hopkins v. Board of Appeals, 178 Mise 186, 32 NYS2d 396 (1942). ~o Tau Alpha Holding' Corp. v. Board of Adjustmen~s~ 126 Fla 858, 171 So 819 (1937). m People v. Kerner, 125 Misc 526, 21I NYS 470 (1925). permit has also been is- sued but had expired; East Providence Mills~ Inc. v. Zoning Bd. of Review, 51 RI 428, 155 A 531 (1931); Bubis v. Nashville, 174 Tenn 134~ ~24 SW2d 238 (1939). See Note 168 ALR 13, 47 (1947). 22 Harrison v. Hopkins, 48 RI 42, 135 A 154 (1926). ~z People v. Gill. 389 II1 394, 59 NE2d 671 (1945); Reed v. Board of Standards & Appeals, 255 NY 125, 174 NE 301 (1931); Roberg. e v. Zoning Bd. of Review, 157 A 304 (RI 1931). But see Otto v. Steinhilber, 282 NY 71, 24 NE2d 851 (19397. See Note 168 ALIt 1~ 55 (1947). ~4 Roberge v Zoning Bd. of Review, note 25 supra. See Note 168 ALR 13, 41 (1947) . ~ Gabrietson v. Glen Ridge, 13 NJ lVIise 142, 176 A 676 (1935). ~ Lattsco, Inc. w Mutual Mtg~ & Inv. Co. 20 Ohio Opin 153, 33 Ohio L AbM; 644 (1941). ~YPhiladelphia Fairfax Corp. v. IYi¢~ Laughlin, 336 Pa 342, 9 A2d 538 (1939). ~s 165 Augusta St. Inc. Vo Collins, 9 NJ 259~ 87 A2d 889. 891-92 (1952)~ es Scheutz v. Dossey Lumber Co. 195 Okla 439, 158 P2d 720 (]945). See No~e · 1(;8 ALR 13, 41-42 (1947). retain customers, and most of the immediate landowners do not ob-~ jeer; ~o the business is to replace one conducted on property which has been condemned by the city; a xhe variance is necessary to fill war contracts: s~ granting the variance will reduce traffic congestion; ~ the use applied for will not alter the es- sential character of the neighbor- hood;S4 the variance will be benes., ficial ro the public interest~ or at least will not be contrary to the public interest; ~ by granting -the variance substantial justice will be done; ~ granting the variance would promote 'the general wel- ~'are; ss permitting the variance will make the property several times as s0 Amero v. Board of Appeal, 283 Mass 45. ]86 NE 61 (1933~. s~ Nielsen v. Board of Appeals, 129 Corm 285. 27 A2d 392 (1942). See Note 168 ALR 13, 35 ~1947). s2 Spadafora v. Fergusom ]82 Misc 161, 42 NYS2d 698 ~1944). ss Fortune v. Zoning' Bd. of Adjustment, !)5 NH 211. 60 A2d 183 (1948). But see Young \Vonlen's Hebrew Ass'n v. Board Standards & Appeals, note ]4 supra. 8~ Lathrop v. Ferio!a. 276 App Div 850, 93 NYSfd 568 (1949); Taxpayers' Ass'n v. Board of Zoning' Appeals. note 14 supra. ~ Ferruna v. Zoning' Bd. of Adjustment, note 33 supra. se Thompson v. Phillips Petroleum Co. 194 Okla 77. 147 P2d 451 (1944), s7 lqico!ai v Board of Adjustment, 55 Aris 223. i01 P2d 199 (1940~; Tau Alpha Holding Corp. v Board of Adjustments, note 20 suFra: Freeman v. Board of Ad- justment, 97 Mont 342, 34 P2d 534 (1934); Young Women's Hebrew Ass'r. v. Board Standards & Appeals, 266 NY 270,194 NE 75J appeal dismissed. 296 US 537, 80 L ed 282 (~925~: Thompson v. Phillips Petro~ leum ('o. note 36 supra. See Note 168 ALR ~: 40 ~1947~. as Th.,:v_as v. Board of Standards & peals 2'::', App Div 352, 33 NYSgd 219 ~1942], ~ev'd on other grounds, 290 NY 109. 48 XE2d 284 il9d3). 89 Rockdale Constr. Corp. v. Cedarhurst, 301 NY 519, 520-21. 93 NE2d 76 (1950). But see Court Boulevard, Inc, v. Board of' valuable; so permitting the variance will not depreciate the value of nearby property?° or will not ap~. preciably injure neighborhood prop- erty; ~l the variance will permit a use like a nonconforming use on joining property;~ there are other similar uses in the same area;~$ a proposed structure in a residential zone is substantially residential in character; ~ or that property desig- nated for residential use is on a main thoroughfare with very heavy traffic? Factors which have been held to be inadequate grounds for granting a variance, for example, include: hardships common to others in the neighborhood; ~ the financial situa~ Standards & Appeals~ 72 NYS2d 753 (1947). 40 Rockdale Constr. Corp. v. Cedarhurst, note 39 supra. 41ValicentFs Appeal, note 9 supra, only one of several factors; Strauss v. Zoning Bd. of Review, note 9 supra, only one of several factors; Ga~rielson v. Glen Ridge, 13 NJ Mist 142, 176 A 676 (1935). 42 Parsons v. Board of Zoning Appeals, 140 Conn 290, 99 A2d 149, 151 (1953). aa Nutini v. Zoning Bd. 78 RI 42!, 82 A2d 883 (1951). 44 Nutini v. Zoning' Bd. note 43 supra. ~s Rockdale Const. Corp. v. Cedarburst; note 39 supra; Nutini v. Zoning Bd. note 4,~ supra. ~6 South Bend v. Marekle~ 215 [nd 74, 18 NE2d 764 (1939); Anderson v. Jester~ 206 Iowa 452, 221 NW 354 (1928); Bray v. Beyer, 292 Ky 162, 166 SW2d 290 (] 942); Bracke~t v. Board of Adjustment, 311 Mass 52, 39 NE2d 956, 960-~1 (1942); Freeman v. Great Falls, 97 Mont 342, 3~ P2d 534 (1934); Tzeses vo South Orange, 22 NJ Supe' 45, 91 A2d 588, 595 (1952); Preye v. Board of Adjustment, 22 NJ Super l(;~, 91 A2d 597, 002 (]952); Tax- payers' Ass'n v. Board of Zouing Appeals, 301 NY 215, 93 NE2d 645, 64(] (1950); Clark v. Board of Zoning Appeals, g01 NY. 86, 90-91, 92 NE2d 903 (t950); Arverne Bay Conair. Co. v. Thatcher, 278 NY 222, 233, 15 NE2d 587, 592, 117 ALR 1110 (~938); Miller v. Silver, 278 App Div 962, 105 NYS2d 474, 475 (1951.); Lee v. Board b ~ u MUNICIPAL LAW the grant of a variance;a d/sap- buildings on the property po/n?ment of a landowner in finding readily be used for the proposed that his land is not available for purpose; 2s a corner lot is in a real business purposes, but is just ins/de dent/al zone while two other eorner~ a residential zone? construction at the same intersection are in a or improvements have been made retail business district;So there are under a permit illegally issued or pre-ex/sting vested nonconforming obtained by misrepresentation or fraud; 2s improvements which have uses of the same kind in the block; property in a residential district is already been made violate the zon~ ing ordinance?~ even though the ex- adjacent to a nonconforming use; penditures were made innocently property in a residential d/strict is under the erroneous belief-that they contiguous to an area zoned for were permitted?~ violation of the business,ss particularly where such zoning ordinance by neighbors;~ contiguity existed at the time of the the use under a variance would be passage of the zoning' /aw; s~ other more conducive'to the public welfare nonconforming uses or structures than an existing unsig'hfly noncon- exist in the same vicinity, neighbor. forming use;~* the appearance of hood or d/strict,Ss some in existenc~ the property would be improved; 2s at t/me of ~he adoption of the ton- could 2~ De Felice v. Zoning Bd. of Appeals, ]30 Corm 156, 32 A2d 635, 147 ALR 161 (1943). 2~ Prusik v. Board of Appeal, 262 Mass 451, ~60 NE 312 (1928). ~s Giunta v. McLaughlin, 30 Pa iD & C 644 (1937). 2~ Torello v. Board of Zoning Appeals, 127 Corm 307, 16 A2d 591 (1940); Sellig- man v. Von Alhnsn Bros., 297 Ky 121, 179 SW2d 207 (19441: Reisberg v. Board of Standards & Appeals, 81 NYS2d 511, 513 (1948~. ~s De Felice v. Zoning. Bd. of Appeals, 130 Corm 156, 32 A2d 635. 147 ALR (1943~; Dolan v. De Capua, 16 NJ-599, 109 A2d 615, 620-21 (1954); Reisberg-v. Board of Standards & Appeals, note 24 ~Von Elm v. Board o£ Appeals, 258 App Div 989, 17 N¥S2d [48 (1940); Mings Holding Co. v. Harrison, 48 Agd 9 3 (NJ 1946). 27 Fortune v. Murdock, 257 App Div 993, ~3 NYS2d 712 (1939), aff'd without opin- ion. 281 NY 763, 24 NE2d 21 (1939). 28 Thayer v. Board of Appeals, 114 Corm 15, 157 A 273 (1931). See Note 168 ALR 13, 44 (1947). ~ Cobble Close Farm v. Board of Ad- justment,. 10 NJ 442, 92 A2d 4, 9 (1952); Hickox v. Griffin, note 15 supra. so State v. Kansas City, 325 Mo 95, 27 SlvV2d 1030 (1930); Allan v. Zoning Bd. of Review, 79 RI 413, 89, A2d 364, 364-65 (1952). But cC~ Hopkins v. Board of peals, 179 Misc 325, 39 NYS2d ~67 (1942~ s~ Smith v. Selligman, 270 Ky 69, i09 SW2d 14 (1937). saR. D'Ordine & Son v. Zoning Bd. of Review, 79 RI 489, 90 A2d 416,418 (1952). ss People v. Murdock, 259 App Div 20 NYS2d 464 (1940), appeal dismissed without opinion~ 285 NY 513, 32 NE2d 817 (1941). See Note 168 ALR 13, 4I (1947). 04 Real Properties, Inc. v. Board of Ap- peal, 319 Mass 180, 65 NE2d 199, 168 ALR 8 (1946). ss Otis v. Los Angeles, 52 Cal App2d 605, 126 P2d 954 (1942); Beirn v. Morris. 14 NJ 529~ 103 A2d 361, 36~ (1954); In re Michener's Appeal, 382 Pa 401, 115 A2d 367, 371 (1955). But see Hammond v. Board of Appeal, 257 Mass 446, 154 82 (1926); Dorsey Motors v. Davis, 13 NJ Mtso 620, 180 A 396 (1935), the ex- istence o£ harm£ul uses in the neighbor- hood, whether nonconforming, across the municipal line, or otherwise permitted, must .be considered on an application for a variance; Gabrielson v. Glen Ridge, 18 NJ Misc 142, 1.76 A 676 (1935)~ uses within the neighborhood should be con- sidered even though an intervening munic- ipal line sets them off into another local government unit. Co~tra, Allen v. Pater- son, 98 NJL 661, 121 A 610 (1923)~ aff'd 99 NJL 532, 124 A 924 (1924). See No~e 168 ALR 13, 41 (1947). ZONING AND PLANNING mg regulation,ss others authorized as a variance or exception? variances have been granted to othersso even though to owners of premises some- what similarly situated ;ss noise from a commercial use located just outside of a zoned residential area annoys the applicant's residential property alone; ~0 a vested nonconforming use lawfully established as an island iix a residential zone would ~be ex- panded to land across the street;~x difficulty of access to the' rear of property;*~ for a tract lying partly in a business and partly in a resi~ deuce district there is no access to the residential portion except over the business portion; ~s irregularity in the shape of the tract; ~ the fact that without a variance a private garage may not be built to serve a dwelling already erected in a resi- dential district;~ changed econom- ic conditions and the necessity of meeting competition as a result thereof; ~s critical housing short- age;~* premises would be used for production of war materials; ~s plat restrictions? or that a building' re- striction was set up by deed in the chain of ~itleo~ The grant of a variance has also been held invalid where: no pecu- liar or unique hardship to -the appli- ean~ was shown; ~ exceptional s6 Smith v. Selligman, note 31 supra; Coleman v. Board of Appeal, 281 Mass 112, 83 NE 166 (1932); Herman v. Board of Adjustment. 29 NJ Super 164, 102 A2d 73, -- (1953); People v. Murdock, 259 App D'iv 694, 20 NYS2d 464 (1940), appeal tismissed without opinion, 285 NY 513, ~2 NE2d 817 (1941). a7 Herman v. Board of Adjustment, 29 NJ Super 164. 102 A2d 73, 77 (1953); People v. Welsh. 244 NY 280, 155 NE 575 (1927); Anderson-I~err, Inc. v. Van Meter, 162 OMa 176, 19 P2d 1068 (1933), overruled on other grounds in Oklahoma City v. Harris 191 Okla 125, 126 P2d 988 (1941): In re Dawson, 136 Okla 113 277 P 226 ~]928); Hasley's Appeal, 151 Pa Super 192, 30 A2d 187 (1943). But see, State v. Kansas City, note 30 supra, hold- ing ,hat variance provisions should be plied without discrimination. See Note 168 ALR 13, 106 (1947). ss O'Connor v. North Arlington, Super 631, 65 A2d 127 (19~9), s, Larkin v. Schw,~b, 242 NY 330, 151 NE 637 (1926); Perelman v. Board of Adjustment, 144 Pa Super 5, 18 A2d 438 (~941). But see CouRhard v. Board of Ad- justment. 120 Neb 543, 265 NW 530 (1936,; and see, State v. Kansas City, note 30 supra, holding that variance pro- visions should be applied without discrim- ination. ~0 In re Michener's Appe~al, note-35 au= pre. ~ Evans v. Little Rock, 221 Ark 252, 253 SW2d 347, 348-49 (1952). ~ Leimann v. Board of Adjustment, 9 NJ 336, 88 A2d 337, ? '~(t952). 4s Otto v. Steinhilber, 282 NY 71, 24 NE2d 851 (1939). See Note 168 ALR 13, 58 (1947). ~ Leimann w Board of Adjustment, note 42 supra. ~ Caccia v. Zoning ]3d. of Review, 113 A2d 870. 872 (RI 1955). 46 Evanston Best & Co. v. Goodman, 369 Ill 207, 16 NE2d 131 (1938); Austin v. Older, 283 Mich 667, 278, NW 727 (1938). ~7 Anne Arundel County v, Ward, 186 Md 330, 46 A2d 684 (1946); Ports v. Board of Adjustment, 133 NJL 230, 43 A2d 850 (1945). But see Miller v. Emergency Housing Comm.'n, 330 Mass 693, 116 NE2d 663. 666 (1953)~ by statute the ~ate Emer- gency Housing Comm'n, in reviewing a municipal zoning board's action on a vari- ante application, may grant variances where to do so will alleviate the housing shortage. See Note 168 ALR 13, 46 (1947). is National Lumber Co. v. Penzio, 133 NJL 95, 42 A2d 753 (~945). But el. Bpad- afora v. Ferguson, 182 Mist 161, 48 NYS2d 698 (1944); People v. Gril~n, 182 Niisc 454 44 NYS2d 68 4:9 Oklahoma City v. Harris, 191 Okla ~25, 126 P2d 988 (1941). See Note 168 ALR 13~ 47 (1947). 50 Protomastro v. Board of Adjustment, 3 NJ 494, 70 A2d 873 (1950). ~- Brackett v. Board of Appeal, 311 Mass 52, 39 NE2d 956, 960-61 (1942); Cohen v. Board of Appeals on Zoning', 139 Corm 450, 94 A2d 793, 796 (1953); Board of Adjustment v. StovalI, 218 SW2d 285 (Tex Civ App 1949); Taxpayers' Ass'n Board of Zoning .¢nD.?als~ 301 NY 2,15, 21~, 93 cono~tlons were not shown;~ the property could reasonably be adap- ted to a permitted use;S there was no proof that the property could not be adapted to a conform- ing use; ~ there was no evidence that the premises could not yield a fair income if used for a conforming purpose;s no attempt was made to sell the property for conforming use: 6 the variance so changes the character of an area and is not in harmony with the general purpose and intent of the zoning ordi- nance:* the variance is an extreme departure: s the use permitted would be harmful to the neighbor- hood: s the variance applies to such a large tract that it amounts to re- zoning;l° the owner began eon- struetion without making an effort to determine whether the structure complied with the zoning' ordinance, and continued construction after ob- taining a variance, regardless of the possibility of an appeal;n the variance was granted without no- tice to other properw owners;n or only a doubtful case for variance has been made out.~ Refusal to gran; a variance has been upheld where: no unneces- sary hardship or practical difficulty was shown: ~ the property was no't shown to be useless for the zoned purposes: ~s there was no showing that the land could not be profitably utilized for a permitted nonconform. ing use:~6 the land is being put to a profitable use under a vested non- conforming use, and it was not shown that the abandonment of the nonconforming use would nor allow profitable conforming use; ~* there was no showing' that the land couM not be used for any other purpose NE2d 645, 647 (1950); Freitag v. Marsh, 115 NYS2d 838. 839 (1952); Preyev. Board of Adjustment, 22 NJ Super 161.91 A2d 597. 605 (1952); Mater v. Dover, 79 Agd 844 (NH 1951); Caccia v. Zoning Bd. of l~eview, 112 A2d 870, 874 (RI 1955). ~ Ellicott v. Baltimore, 180 Md 176, 23 A2d 649 (1942). ~ Rexon v. Board of Adjustment, 10 NJ 1, 8, 89 A2d 233. 236 (1952); Preyev. Board of Adjustment, 22 NJ Super 161, 91 A2d 597, 603 (1952). 4 Taxpayers' Ass'n v. Board of Zoning Appeals, note 1 supra; North Titus Resi- dential Ass'n v. Board of Zoning Appeals, 127 NYS2d 502, 505 (1954); Leimann v. Board of Adjustment, 9 NJ 336, 88 A2d 337, 339~40 1t952.; Allan v. Zoning Bd. of Review, 79 RI t]3, 89 A2d 364, 365 ( 1952 ~. 6 People v. Welsh, 244 NY 280, 155 NE 575 (1927~. 6 Taxpayers' Ass'n v. Board of Zoning Appeals, note 1 supra; North Titus Resi- dential Ass'n v. l:loard of Zoning Appeals, note 4 supra. 7 Antrim x Hohlc, 122 Ind App 681, 108 NE2d 197, 199 (1952); Taxpayers' Ass'n v. Board of Zoning' Appeals, note I supra, 301 NY at 218-19. 8 Abbott v. Zoning' Bd. 78 R! 84, 79 A2d 620 (1951), drive-in theater in a residen- tial zone. See also Siebold v. 1VIayfield, 13¢ NJL 512, 57 A2d 248 (1948), light manu- facturing in residential district. 9 Taxpayers' Ass'n Board of Zoning peals~ note t supra. 10 Leimann v. Board of Adjustment, NJ 336, 88 A2d 337, 339 (1952). 11 Misuk v. Zoning Bd. of Appeals, Corm 477, 86 A2d 180 (1952). ~eZimmerman v. O'Meara, 215 l~wa 114~,245 NW 715 (1932). ~8 Application of Groves. 226 SC 459, 85 SE2d 708, 711-42 (1955). ~i Garden View Homes, Inc. v. Board of Adjustment, 137 NJL 44, 57 A2d 677 (1948); People v. Walker, 282 NY 26 NE2d 952 (1940); Hanover Ser¥}c* Station. Inc. v. Murdock, 285 App 1075, 18 NYS2d 85 (1940). ~5 Hammond ~. Kephart, 331 Micb 55L 50 NW2d 155, 158 (1951); Cobble Farm v. Board of Adjustment, 10 NJ 442. 92 A2d 4~ 9 (1952); Appeal of Ward~ 289 Pa 458, 137 A 630 (1927); Winters Zoning Bd. of Review, 80 RI 275, 96 337, 340 (1.953). 16 Marjen Realty Cm v. Reynolds, .App Div 1098, 26 NYS2d 988 (1941). 17 Henry Steers, Inc. v. Rembaugh~ 20 NYS2d 72 (1940)~ than the one for which a variance was requested: ~s granting the vari- ance would render less desirable as residences the houses in the imme- diate vicinity; ~ the requested use would injuriously affect neighbor- ing' premises; ~0 the requested use weuld be a serious disadvantage ~0 the residents in the immediate cinity;~ the variance would ma- terially reduce the value of property in the neighborhood;~ - the use would create a traffic hazard;~s or the use would be a nuisance? Refusal to grant a'variance has been held to be arbitrary where there was proof that: the property could not be used for a conforming purpose.~s despite the opinion or be- lief that a prospective demand will develop for the property for a con- forming' use;~6 there is no demand for a building' for a conforming ttse. and the proposed use is the pre- ;-ailing one in the neighborhood; property which had been used as a circus ground produces no income during wartime and the owner wishes to manufacture small s rms and ammunition for the duration and six months thereafter; ~a it is impossible to use certain lands for any other purpose than that pro- posed;~s the zoning ordinance pre- vents any practical economic use of the particular property without commensurate disadvantage to other property;s0 the applicant is suffer~ lng practical difi%ulties and there is no proof %hat injury~ inconven- ience or annoyance would result to the community or to others;s~ the denial had no reasonable relation to the public health, safety and gen- eral welfare; ~ the variance is es- sential to the continuance of a vested nonconforming use;~s a cor- ner lot is zoned residential although the other three corners of the inter- section are zoned for business pur- poses;aA a lot in a residential zone is enclosed on three sides by busi- ness properties; ss residential prop- erty is located on a main traffic 16 Revert Realty Co. v. Welsh, 225 App Div 774, 232 NYS 141 (1928), aff'd with- out opinion, 251 NY 5[[6, 168 NE 410 (1929). ~9 Perehnan v. Board of Adjus~cment, 144 Pa Super 5, 18 A2d438 (1941). 2o Aberdeen Gara~o'e, Inc. v. Murdock, 257 App Div 645, 15 NYS2d 66 (1939), aff'd without opinion 283 NY 650, 28 NE2d 45 ~940)~ See R'ote 168 ALR 13, 40 1947) m Pieretti v. Johnson, 132 NJL 576, 41 Agd 8~6 (1945). ~2 Application of Shadid, 205 Okls 462, 238 P2d 794 (1951); R. D'Ordine & Son v. Toning Bd. of Review, 90 A2d 416, 418 (RI 1952',. ~s Mrowka v. Board of Zonh~g Appeals~ 134 Corm 149, 55 A2d 909 (1947); People v. Scofield, 279 App Div 762, 10g NYS2d 778 (1951); Application of Shadid, note 22 supra. ~4 Boatwright v. Leighton, 231 AI~ 607, 166 So 418 (1936~; Averch v. Denver~ 78 Cole 246, 242 P 47 (~925). ss At'peal of Lindquist, 364 P~ 561, 73 Agd 378 (1950). as Forde v. Miami Beach~ 146 Fla 676, 1 Sogd 642 (1941). a7 Harm v. Sea Girt, 134 NJL 74, 46 A2d 47 (1946); Pforzheimer v. Seidman, 99 NYS2d 87 (1950). See Note 168 ALR 13, 41 (1947). ~ People v. Griffin, 182 Misc 454, 44 NYS2d 68 (1943). ~9 Robinson v. Narragansett, 60 RI 422, 199 A 308 (1938)~ so Schaible v. Board of A. djustmen~, 134 NJL 473. 49 A2d 50 (1946). s1 Gabrielson v. Glen Ridge, t3 NJ Mist 142. 176 A 676 (1935); Gulf Oil .Corp. v. Board of Adju6tment, 1~2 NJL 435~ 40 A2d 774 (1945). $~ Bianchi v. 3/Iorey, 124 NJL 258~ A2d 405 (1940). ss Home Fuel Co. v. Board of Adjusts. ment, 5 NJ Super 63, 68 A2d 41.2 (1949). S~Joyce v. Dobson. 167 Mist 723, NYS2d 648 (1938). But cf. State v. Kan- sas City, 325 Mo 95, 27 SW2d 1030 (1930). ss Progress Holding Co. v. Board of Ad- justment, 118 NJL 135, 191 A 799 (1937). See Note 168 ALR 13~ 41 (1947). artery, the greater part of which is within a business district, and other commercial uses are near- by;ss residential property is in the immediate vicinity of several busi- ness, commercial and professional uses;sv or practically all the neigh- boring premises are being used for a similar nonconforming purpose.SS § 82-20. Revocation of Variances. Variances may be revoked entirely when no vested rights have accrued, and even after a permit has been issued,so Revocation of an improp- erly granted variance is a duty of the zoning board, especially where it has been granted in violation of the zoning ordinance and a stat- ute;4° and it follows that a permit may be cancel]ed where the board and the council failed to comply with statutory requirements in their proceedings and construction of the building is not permitted by the zoning ordinance?~ But the fact that over 1,000 protestants signed a petition for revocation of a vari- ance is not, in and of itself, sufficient grounds to sustain the action of a zoning board in revoking a variance even though the petition alleged that the proposed use would be fensive to the community? A newly appointed zoning board has the power to review' the action of the prior board granting a varL ance provided the new board exer. :j cises such power within the statu.'-- tory time allotted protestants to appeal to a court from the granting of the variance? Thus, a variance may be revoked by a successor board upon a finding that the titioner failed to show unnecessary hardship before the previous board.44 One who is granted a variance by a zoning' board and acts thereunder before the time for appeal to a court has expired, takes the risks involved if such an appeal is taken and is successful, or if the variance is revoked by the board within the appeal period?~ Revocation of a variance by a city council was held void where a majority of the coun- cil members were disqualified ~o vote. and the action was taken wi~h- out a public hearing as required by the zoning- ordinance.4s Likewise. an ordinance adopted by the electors providing for the revocation of all variances and prohibiting the granr~ lng of future variances was held void for failure to hold a hearing as required by the zoning laxv.4. A zoning board may not reopen its proceedings for the purpose of se~- ting aside the grant of a variance after certiorari proceedings have been instituted in a court to review the board's action? s0 Sundlun v. Zoning Bd. of l~,eview, 50 RI 108. 145 A 451 (1929). s7 Felter v. Board of Zoning Adjustment, 14 NJ Misc 247, 183 A 684 (193g)~ aff'd 117 NJL 532, 189 A 366 (1937). aa People v. Walsh~ 120 Misc 467, 199 NYS 534 (1923)o See Note 168 ALR 13, 41 (1247). s~ Ambrosio v. Zoning Bd. o£ Appeals, 196 1VIisc 1005, 96 NYS2d 380, 383-84 (1949). Fairchild Sons, Into v. Rogers, 246 App Div 555, 282 NYS 916 (1935). 40 Ventresca v. Exley, 358 Pa 98~ 56'A2d 210 4x Warrensville Heights v. Cleveland Raceways, Inc. il6 NE2d 837, appeal dis- missed. 161 Ohio St 592, 120 NE2d 305 (1954)0 4~ Silverco. Inc. v. Zoning Bal. of Ad- justment, 379 Pa 497, 109 A2d 147. 149 (1954). 4s Id, 109 A2d at 150. 44 Ibid. 4~ Ibid. 46 Saks & Co. v. Beverly Hills, 107 Cai App2d 260, 237 P2d 82 (~951). 47 Ibid. 48 Biker v. Board of Appeals, 225 App Div 570. 234 NYS 42 (1929j. Cf. Miriam Hospital v. Zoning Bd. of Review, 67 RI § 82-21. ]Proceedings for Variances. In determining applications for a variance a board of adjustment or appeals acts in a judicial 4s or quasi- judicial~0 capacity, with somewhat similar powers to that of a court of equity.~ A provision authorizing zoning boards to grant variances un- der specified conditions is discre- fi(mary or pemnissive and not man- dst.ry.~ It has been held. that the denial of a variance does not take away a property right but is merely a refusal to grant a fay.rtl It is well settled 'that authority to grant variances from the terms of a zon- i~g ordinance should be used spar,.. ingly and only in exceptional 'in- stances.~ However, when property changes in physical character from natural causes to such an extent that it is no longer adaptable to the use for which it is zoned, it becomes the duty of the zoning officials to relax an ordinance's restrictions to prevent confiscation.~ ImplicR in an application for a variance is the acknowledgment that no right exists to a noncon- forming use of the kind for which a variance is requested? although nothing in variance proceedings be- fore a zoning board or a revie~ving court will foreclose the applicant from asserting a right to a noncon- forming use in some other appropri- 2(.)5. 23 A2d 191 (1941l. See Note 168 ALR 13, 127 (1947). 49 Pig~oz~ v. Hopewell, 22 NJ Super 106. !~ A2d667,669 (1952); Robinsonv. Har- t'a,.ranserr 60 RI 422, 199 A 308 {1938). See Note 168 ALe 13, 10l (1947). 50 Herman v. Board of Adjustment, 29 NJ Super 164. 102 A2d 73.74 (1953); Na- tional Lumber Products Co. v. Ponzio, 133 NJL 95. 42 A2d 753 (1945): McGarry v. \Valsh. 213 App Div 289. 210 NYS 286 .1925~: Lee v. Board of Adjustment, 226 NC ]07~ 37 SE2d 128. 168 ALR 1 (1946): Torrance v. Blade], 195 Okla 68, 155 P2d 546 ;1945). ~ People v. Kerner, 125 Misc 526, 211 NYS 470 (1925). 25Vhite v. Board of Adjustment, 245 Als 48. 15 So2d 585 (1943); Rubin v. Pasadena 16 Cal2d 119, ]04 P2d 104l (1940~; Board of Zoning' Appeals v, Moyer~ 10S Iud App 198. 27 NE2d 905 (1940). See Note 168 ALR 13, 19 (1947]. s Rubin v. Board of Directors, 16 Cal2d 119 104 P2d 1041 (1940); Appeal of Blackstone. 38 Del 230. 190 A 597 (1937); Arverne Bay ConstL Co. v Thatcher, 278 NY 222. 15 NE2d 58'7 (1937)~ But see B~andon v. Montclair. 124 NJL 135. 11 A2d 304, aff'd 125 NJL 367~ 15 A2d 598 (~940). 4 Cohen v. Board of Appeals on Zoning, 139 Corm 450. 94 A2d 793~ 798 (1953); Heady v.-Zoniug Bd. of Appeals, 139 Corm 4(43, 94 A2d 789, 791 (1953); De Fe!ice v. Zoning Pd. of Appeals 130 Corm 156. 32 A2d 625, 147 ALR i61 (1943); Hammond v. Kephart, 331 Mich 551, 50 NW2d 155 (1951); Bray v. Beyer, 292 Ky 1~2, 1~0 SW2d 290 (1942); Gaunt v. Board of Appeals, 327 Mass 380, 99 NE2d 60 {1951); Real Properties Inc. v. Board of Appeals, 319 M~ss 180, ~5 NE2d 199, 168 ALe 8 11946); Leimann v. Board of Adjustment. 9 NJ 336, 88 A2d 337. 339 (1952), decision by Mro Justice William J Brennan, Jr.; Herman v. Board of Adjustment. 29 NJ Super ~4~ 102 A2d 73, 74 (' 953); Young Women's Hebrew Ass'n v. Board o£ Standards & Appeals, 266 NY 270. 194 NE 751, appeal dismissed sub nom. Gelkom Realty Corp. v. Young Women's Hebrew Ass'n, 296 US 537, 80 L ed 382 (1935); Aberdeen Garage Inc. v. Murdock, 257 App Div 845, 15 NYS2d 66 (1930); Court Boulevard, Inc. v. Board e£ Standards and Appeals, 72 NYSgd 753 (1~47); Rubin v. Greem 68' NYS2d 521 (1948); Application of Sha- did, 205 Okla 482, 288 P2d 794 (1951); Applicatmn o£ Devereu× Foundation, lne. 351 Pa 478, 41 A2d 744, appeal dismissed 320 US (;88, 90 L ed 403 (1945); Hartev. Zoning ed. of Review, 9~ A2d 33 (RI 1952), Appeal of Mutual Supply Co. 366 Pa 424. 77 Agd C12 (1951). See Note 1~8 ALR ~3, 24 (1947). ~Forde v. Miami Beach, 146 Fla 676, 1 So2d 642, 846 {1941). ~ National Lumber Products Co. v. Pon- zio, 133 NJL 95, 42 A2d 753 (1945); Win~ers v. Zoning ed. of Review, 80 RI 275, 96 A2d 337, 339 (1953). ate proceeding.v Applying for a variance does not violate an in june- t/on a~,,~ainst making a certain use of property, although the granting of the variance would render the inj'unction futile.a Quite often statutes and zoning ordinances require the written con- sent of a certain percentage of neighboring property owners be ob- tained before a variance may be granted, and such a requirement is not affected by the fact that a stat- utory provision empowers a zoning board to grant variances in cases of practical difficulty or unnecessary hardship.9 In computing the peru centage of written consents re- quired for a variance the courts have held that the signature of the owner of property for which a vari.- ance has been requested ~0 and prop- erty already devoted to a similar non- conforming use which would be af- fected by competition n must be ex- cluded, but that the consent of own- ers of property on the opposite side of the street must be included in the eomputation3~ Provisions re- specting' ~he consent of property owners to the grant of variances must contain proper standards. Thus, it has been held that a pro- vision requiring the consent of a specified percentage of the OWners of property fronting upon the streets enclosing the block with/n which a variance is sought was in- valid as an improper delegation o£ authority to property owners With. out a proper standard or guide to limit their action3S Persons pur- chasing property in reliance upon zoning restrictions and previous de~ cisions of a zoning board do not thereby acquire any vested rights which will prevent the board from subsequently granting a variance for a previously prohibited use.~* Th e strict rules of evidence do no~ apply to proceedings before a zon- ing board, and all that is required is that the hearings and proceed- ings comply with the fundamentals of natural justice.~ The courts may not interfere with the procedure pre- scribed by the state legislature for municipalities to follow in th~ grant- mg of variances.~S Failure to ob- jec~ before a zoning board that the appeal was not taken from a denial of a variance within the time re- quired operates as a waiver? Notice and hearing requiremems respecting the granting of variances must be substantially complied withJa and a zoning board may not grant a variance without complying 7 Winters v. Zoning Bd. of Review, note 6 supra, dictum. S Banister v. Board of Appeals, 65 NYS2d 15 (1946). ~ Bennett v. Board of Appeal~ 268 Mass 419, 167 NE 659 (1929); For a furthe~ discussion of the vaHdky of requirements of property-owners' consents in zoning see § 32-3 supra, notes 36 to 47. ~o People v. Leo, 110 Mist 519~ 180 NYS 554, modified without oninion Irt App Div 921, 184 NYS 943 ({920)° See Note 168 ALR 13. 41 (1947). ~ Esdora Realty Corp. v. Welsh, t26 Misc 476, 240 NYS 792, rev'd on other grounds 229 App Div 866, 243 NYS 810, aff'd 254 NY 600, 173 NE 883 (1980). ~ People v. Leo, note 10 supra. ~.$ Concordia Collegiate Institute vo Mil- ]er, 301 NY 189. 93 NE2d 632, 21 ALRgd 544 (1950). See Note 21 ALR2d 551 (1952 ~. l~¥esell v. Board of Standards & Appeals, 137 Misc 806, 243 NYS 518, aff'd without opinion, 225 Apr Div 742, 232 NYS 904 (1928). ~* Mitchell Land Co. v. Planning ~: Zon- ing Bd. of Appeals, 140 Corm 527, 102 A2d 316, 321 (~953), granting of an caption.' not a "variance." ~6 Sun Oil Co. v. Clifton, ~6 NJ Super 265, 84 A2d 555, 558 (1951). ~ West Side Mortgage Coo v. Leo. I74 NYS 451 (1919~. See Note 1~8 ALR 1~, 107 (1947). lS Kane v. Board of Appeals, 273 97, 173 NE 1 (1930); Mingo Holding v. IIarrison, 48 A2d 919 (NJ 1946); with these requirements? Notice by the applicant is not sufficient~o A zoning board is justified in deny- mga variance on the ground that proper notice had not been published as required3x Notice is not required for an amendment to an application for a varignce which is more re- strictive than the original appliea... tion of which all property owners had notice? A proper hearing must-also be held on variances where required? However. where a zBning board ,_,'rants a hearing on a variance and makes a recommendation to the city council for final determination, as required by statute, the council is no~ thereafter requi?ed to give no-- rice or conduct a hearing on such recommendations before granting or denying the variance? One seeking a variance has the burden of sho~v- ing the existence of circumstances which justify the granting of relief provided by the zoning ordinance? Witnesses at a hearing on a vari- ance generally need not be sworn? and where required the failure to request theswearing of witnesses is deemed a waiver3* The admission of records and exhibits from an earlier hearing' on the same subject does not constitute such error as ~vill vitiate the board's action in granting an exception3~ A zoning board, in passing on an application for a variance, may view the locality ~9 and may also give con- sideration to matters within the per- sonal knowledge of its members in arriving at a decision? Howeven matters within the board's own knowledge, or personal study or view of the premises may be made the basis for a determination on a variance only if such facts have not been otherwise disclosed or set forth in the record,a Yet a decision based on personal inspection of the site v. Boettger, 250 App Div ~33, 295 NYS 115 (1937). See also §32-5 supra; and Note 168 ALR 13, 107 (1947). ~9 Retoske v. Boettger, 249 App ~;24. 290 NYS 957 (1936). 20 Kane v. Board of Appeals, note 18 supra. s] Selleck v. Waterbury, 257 App Div 1049, 13 NYS2d 591 (1939)~ 2~ Tzeses v. Board of Trustees, 22 NJ Super 45. 91 A2d 588, 593 (1952). ~s See § 32.-5 supra; and Note 168 ALR 13, 110 (194'7). ~ Sandier v. Trenton, 126 1NJL 392, 19 A2d 788 (1941); Sun Oil Co. v. Clifton, 16 NJ Super 265, 84 A2d 555. 558 (1951). See No~e 168 ALl% 13, 111 (1947). ~s Cohen v. Board of Appeals on Zon- :ni, 139 Corm 450, 94 A2d 793, 796 (1953); Cobble Close Farm v. Board of Adjustment, 10 NJ 442, 92 A2d 4 (1952); tterman v Board of Adjustment, 29 NJ Super 164, 102 A2d 73, 74 (1953); Holy Sepulchre Cemetery v. Board of Appeals, ~0 NYS2d 750 (1948); Application of Shadid, note d supra; Silvereo, Inc. v. Zoning Bd. of Adjustment, 379 Pa 497, ~09 A2d 147~ 150-51 (1954); Winters v. Zoning Bd. of Review, 80 RI 275, 96 A2d 337. 340 (1953); Application of Groves, 226 SC 459, 85 SE2d 708, 711 (1955 ~. See No~e 168 ALR 13, 113 (1947). ~ Schaible v. Board of Adjustment, 134 NJL 473, 49 A2d 50 (1946); Jacques v. Zoning Bd. of Review, 64 RI 284, 12 And 222 (1940). See Note 1~8 ALR 13, 112 (1947). ~7 Schaible v. Board of Adjustment, note 25 supra. ~s Mitchell Land Co. v. Planning & Zon- ing Bd. of Appeals, note 15 supra, 102 A2d at 320-2L ~aHeffernan v. Zoning Bd. of Review, 49 RI 283, 142 A 479 (1928); Levy v. Board of Standards & Appeals, 267 NY 347, 196 NE 284 (1935). 3ce Note 168 ALR 13, 112 (1947). $Olbid; Parsons ~. Board of Zoning Appeals, 140 Corm 290, 99 .A2d 149, 150 (1953). 91Health v. Baltimore, 187 Md 296, 49 A2d 799 (1946); Stolz v. Ellenstein, 7 NJ 291. 81 A2d 47~ (19511; Preyev. Board of Adjustment, 22 NJ Super 161, 91 A2d 597, 605 (1952); Levy v. Board of Standards & Appeals, 267 NY 347, 196 NE 284 (1935); Wood.bury v. Zoning Bd. 78 RI 319, 82 A2d 164 (~951). See also and the plans and specifications at- ~ Proceedings to secure or revoke a tached to the application was sus- variance are void if one or more rained, notwithstanding the fact no members voting on the variance is oral testimony, documents or exhib- /disqualfied, such as, for example, its were presented to the board.aS having a personal interest in the Where a statute requires a public property;SO having determined in hearing on a variance to be heard by the entire membership of the board, the absence of one of the members because of illness, invali- dates the board's action, even though he read the record and personally viewed the premises before voting on the matter? However~ the grant of a variance by four members and a regularly appointed substitute was held to be sufficient compliance with a requirement of a unanimous de- cision by the entire board of five.a4 A provision forbidding a variance unless adopted by the unanimous vote of the zoning commission was held to be satisfied by the unani- mous vote of all members present Where those present and voting constituted a quorum. SS On the con- trary, it has been held that if the law requires a quorum of the board to be present and to vote. a variance granted in the absence of a quorum is void.as advance of the hearing and presen- ration of evidence how he would vote.ss or by voting where he had not heard the evidence presented? However, it has been held that a zoning board's determination on a variance will no; be set aside merely because a member, who voluntarily withdrew and took no part in the de- liberations or decision, had a per- sonal interest in the matter, unless it can be shown that the board's de- cision was influenced by such mem- ber? One may not collaterally at- tack the right of a member of a zon- ing board to hold office on an appeal to a court from a board's grant of a variance.al Procedural requirements gener- ally require the keeping of minutes and records by the board. A require- men; that a zoning board keep min- utes "shoxving the vote of each mem- ber upon every question," -was held to require such a record only on the Parsons v. Board of Zoning Appeals. note 30 supra. See Note 168 ALR 13, 112. 138 (1947). 8~Wiison w Union Tp. 123 NIL 474, 9 A2d 771 (1939); Jacques v. Zoning Bd. of Review, 64 RI 284, 12 A2d 222 (1940). Compare, Ports vo Board of Adjustment 133 NJL 230, 43 A2d 850 (1945). where a~,plicant for a variance addu-es no evi- dence to sustain his application, the board is required to resolve the issue against the applicant. See Note 168 ~LR 13, 113 (1947). aa Sesnovich v. Board of Appeal, 313 Mass 393, 47 NE2d 943 (1943)o See also May-Day Realty Corp. v. Zoning Bd. of Review, 77 A2d 539 (RI 1950], statute construed to require vote by all five mem- bers of board and to leave four members without jurisdiction to hear and decide an application. See Note 168 ALR 13, 1~5 (1947)o $~ Rea] Properties. Inc. Board of peal, 311 Mass 430. 42 NE2d 499 (1942). See Note 162 ALR 13. 115 (1947~. s~ Gummv. Lexing'ton. 247 Ky 13.o, SW2d 703 (193,q} ss Gaston v. Ackerman. 6 NJ M/sc 694, t42 A 545 (1922). 07 Piggot v. HopewelI, 22 NJ quper 106, 91 A2d 667, 669-70 (1952), one member disqualified. Compare Cobble Close Farm v. Board of Adjustment, note 25 supra, not void because self-interested member took no part in the deliberations or de- eisi on. as Saks & Co. v. Beverly Hills, ~07 Cal App2d 260, 237 P2d 32 (1951), majority of members disqualified. s9 Jbid. ~0 t;obble Close Farm v. Board of Ad- justment, note 25 supra. 4~ Torrance -~-.~ Bladel, 195 Okla 68, 1.55 P2d 546 (1945). ultimate decision of whether to grant or deny the variance? In the absence of a statute or ordinance re- quiring a stenographic record of variance proceedings, failure to keep such a record is not fatal, and all that is req[uired is a reasonably curate summary of the facts pre-. seated to the board.4a A board of appeals has original jurisdiction to entertain an applica- tion for a variance? but trais power may no[ be invoked except upon an appeal from a decision by an ad- ministrative body or officer, such as a building inspector? A municipal governin~ body haw.. lng the power of final determination on vamances is not bound to approve a grant recommended by the zoning board of adjustment,~ but it may remand the matter to the board for further proceedings thereon upon the advice of the city attorney that the board's findings and recommen- dations are deficient and not sup- 4~ Torello v. Board of Zoning Appeals, 12~ Conn 307, 16 A2d 591 (1940}. See Note 168 ALR 13, 129 (1947). ~s Jacques v. Zoning Bd. of Review, 64 RI 284, 12 A2d 222 (1940). See Note 168 ALB 13, 129 (1947)_ 44 Roosevelt Field, Inc. v. North ~emp- stead, 277 App Div 889, 98 NYS2d 350, 351 (1950). 45 Kelley v. Board of Zoning Al~peals, 126 Conn 648, 13 A2d 675, 676-77 (1940); Mamaroneck Commodore, Inc. v. Bayly~ 260 NY 528. 184 NE 79 (1932); Von Elm v. Zoning Bd of Appeals, 258 App Div 989, 17 NYS2d 548, 549 (1940,; Kaufman v. Glen Cove, 180 Mist 349, 45 NYS2d 53, 58-00. aff'd without opinion, 266 App Div 870. 42 NYS2d 508 (1943~. Compare, Indianapolis v. Ostrom Realty & Constr. Co., 95 Ind App 376. 176 NE 246 (1931~; Miriam Hospital v. Zoning Bd of Review~ 67 RI 295~ 295, 23 A2d 191 (1941). See Note 1(~ ALR 13, 105, 10~ (1947). ~6Verniero v. Passai% 134 NJL 71, 45 A2d 890 (1946): Sun Oil Co. v. Clifton, 16 NJ Super 265. 84~A2d 555, 557 (1951). ~ Dolan v. De Capua, 16 NJ 599~ 109 A2d 615, ~22 (1954), ported by the record.~ It has also been held that an amendatory ordi- nance adopted pursuant to a zoning' board of adjustment recommenda- tion which was not supported by jurisdictional facts was invalid and could not affect variance rights? A building inspector does not have au- thority to vary zoning regulations.4~ And in the absence of a decision by a zoning board, a court does not have the power to grant a variance or exception from zoning regula- ' tions? §82-22. Findings; Decisions; Ap- peals; Review of Variances. It has been held, sometimes because of ex- press requirements, that tO sustain the grant of a variance there must be a finding' of jurisdictional pre- requisites, based on competent and substantial evidence, and a record showing proper grounds and reasons to support the board's decision.~ If the decision of the board fails to set 48 Linden Methodist Episcopal Church v. Linden, 113 NJL 188, 173 A 593 (1934). 4SInzerilli v. Pitney, 30 NYS2d 129 (1~41). ~00sborn v. Darien, 119 Corm 182, 175 A 578 (1934). 1Gaunt v. Board of Appeals, 327 Mass 380, 99 NE2d ~0, ~1 (1951); Prusik Board of Appeal, 262 Mass 451, 180 NE 312 (1928); Dolan v. De Capua, 16 NJ 599, 109 A2d 615, 620 (1954); 165 Au- gusta St. v. Collins, 9 NJ 259, 87 A2d 889, 890 (1952); Scaduto v. Bloomfield, 127 NJL 1, 20 A2d ~49 (1941.); Donegan v. Griffin, 270 App Div 037, 01 NYS2d 699, (1946); 'Van Meter v. Westgate Oil Co. 168 Okla 200, 32 P2d 719 (1934); Van ~eter v. H. F. Wilcox 0il & Gas Co. 170 Okla 604, 41 P2d 904 (1935); Appeal of Valieenti, 298 Pa 276, 148 A 308 (1929); Cardin v. Zoning Bd. of view, 93 A2d 304, 306 (RI 1952); Petrar- ca v. Zoning Bd. of Review, 78 RI 130, 80 A2d 156, 157 (1951). Bu~ cf. Sandier v. Trenton, 126 NJL 392, 19 A2d 783 (1941), findings of fact need not be made by a local governing body determining whether to make a variance on the recommends- zortla the facts showing the exist- ence of unnecessary hardship or practica] difficu]ties,~ or proper grounds or reasons to support the decision? the ruling will be set aside; or the matter may be re- manded to the board for a hearing de nov..4 ]3ut it has been held that the failure of a zoning board deci- sion to show a finding of unneces- salty hardship is not fats! where the decision contains a finding by the board that the variance would not be contrary to public interests.5 And the denial of a variance was SUSLained, even though the decision failed to give the reasons and grounds 'therefor, where the evi- dence disclosed that the applicant could obtain su~cient benefits from his properly by a conforming usefi The courts generally will not accept supplemental findings filed by a zon- ing board several months after ~ts decision granting a variance, but under certain circumstances the viewing court will accept and con- sider such supplemental findingsY A zoning board of appeals is not limited to the affirmance or reversal of action by an administrative o~cer or board char~ed with the enforce~ ment of zoning regulations, but it may, in its discretion, modify or change such recommendations or orders so as to do substantial jura tics and carry out ~he spirit and pur- poses of the zoning ordinance.~ Thus it follows that a zoning board is not bound either to grant or deny a variance in accordance with the particulars in the application but may modify or change the scope of the variance in granting' it,s Contracts calling for the granting of variances are generally held to be ultra vires and void? A variance may be granted by a zoning board for a specified limited peri.din or a court, in allowing the erection and tion of a board. Co*ztra., Bartholomae Oil Corp. v. Seager, 35 Cai AppSd 77, 94 P2d ~]14 (]939~: Nielsen v. Board of Appeals, 129 Conn 285, 27 A2d 392 (1942); Beards- ley v. Evangelical Lutheran Bethlehem Church, 261 Mich 458, 24(~ NW 180 (l.9,~o/. See Note 168 ALIt 13, 117. 137 (1947). ~ Stolz v. Ellenstein, 7 NJ 291, 81 A2d 476, 479-80 (1951~: People v. Walsh. 244 NY 280, 289, 155 NE 575, 578 (1927). But see Beardsley v. Evang'elical Lutheran Bethlehem Church. 2~1 Micb 452, g4O NW 180 (1933), the board of appeals need not state the grounds of its findings. a Brandon v. Montclair, 125 NJL 367, ]5 ASd 598 (1940~; People v. Walsh, note 2 supra; Gaunt v. Board of Appeals, 327 Mass 380, 99 NESd 60 (~951), statttory requirement; Petrarca v. Zoning Bd. 78 RI 130, 80 A2d 156 (1951). Conira, Nielsen v. Board of Appeals. 129 Corm 285, 27 ASd 292 (1942): National Lmm bet Pr,duces Co. v. Ponz~o. 133 NJL 95, 42 ASd 753 {1945). Set, 168 ALR 13. 139 (1947). 4 Berg v. Zonk~g Bd. of Review, 64 RI 290. 12 ASd 225 (1940). s Wi]son v. Union Tp. ~23 NJL 474, 9 A2d 771 (1939)~ 6 Winters v. Zoning Bd. of Review, 80 RI 275. 96 ASd 337~ 340 (1953}. 7 Tzeses v. South Orange, 22 NJ Super 45, 91 A2d 588. 594 (1952l. s East Chicago v. Sinclair Refining Co. 111 NE2d 459. 467 (Ind 1953). dictum. ~Home Builders Ass'n v. Paramus, 7 NJ 335, 34]-42. 8t ASd 753, 756 (1951); Tzeses v. South Orange, note 7 supra. ~o'V. ?. Zahodiakin Engineering Corp. v. Zoning Bd. of Adjustment, 14 NJ Super 537. 82 ASd 493, 494-95 ¢1951), aff'd 8 NJ 386, 86 ASd 127 (1952). ~x People v. Connell, 257 NY 73, 177 NE 313 (1931); Burke v. Cohen. 13 N¥SSd 984 (1939), provision authorizing tempo- rary variances held valid; Woodbury v. Zoning Bd. 78 RI 319, 82 A2d !64 (~951), two years. See also, granting' variances for limited periods: Douglaston Civic Ass'n v. Board of Standards & Appeals, 278 App Div 659, 102 NYS2d 582 (1951), aff'd 302 NY 920, 100 NE2d 187 (1951); Hertzsch v. Zoning Bd. of Appeals, 137 Corm 599, 79 ASd 767 (1951). But see Ellish v. Zoning Board of Appeals, 141 Misc 916, 253 NYS 547 (1931). Conbra, V. F. Zahodiakin Engineering 'Corp. v. Zoning' Bal. of Adjustment note 10 supra, use which is no~ the PToper subject of a use of a new building may provide that when circumstances so change by the development of the city that the property is reasonably suscep- tible of being applied to a conforming use the building must be removedJ~ And a zoning ordinance may prop- erly provid.e that a variance or ex- ception is valid for only one year ]ess the grantee applies for a build-- ins permit and commences construc- tion within one year after the date of the grant,xa The power of a zonini board impose reasonable conditions upon the grant of a variance ~ is inherent in the boardJ~ Examp]es of conditions which have been held reasonable include a provision, that: existing buildings may not be demolished and repiaceu until the end of hostilities of a war in progress ? the variance is subject, to the approval of the health author- tries ;~* or that a nonconforming use must be discontinued within a rea... sonable time after the termination of an existing war emergency, if then necessary to do so3s However, it is not appropriate to impose con- ditions: that are personal to the user, since conditions imposed must relate to ~he land itself and 'the use thereof and not to the person or company by whom such use is to be exercised :~s that serve only aesthetic purposes:~0 that are more burden- some than the ordinance's restric- tions :~ or that require the permRtee to defray the expense of underlSin- variance lasting and inviolable in charac- ter is nor ~ermissible for a limited period: Lynch v. Hillsdale, 136 NJL 129, 54 ASd 723. 725 11947), aff'd 137 NJL 280, 59 A2d 622 (1948). See Note 168 ALIt 13, 6O ~ 1947). ~a People v. Connell, 257 NY 73. 177 NE 313 ~193i)o ~$ O~tinger v. Arenal Realty Co. 257 NY 371, 380. 178 NE 665, 667 (19311. 14White v. Board of Adjustment. 245 Als 48, 15 So2d 585 119431; Itubin v. Pasadena, 16 Cal2d 119, 104 PSd 1041. ]043 (1940); Kelley v. Board of Zoning' Appeals, 126 Corm 648, 13 ASd 675 (1940); Illinois Bell Tel. Co. v. Fox, 402 Ill 617, 85 NE2d 43, 50 (1949); East Chi- cago v. Sinclair Refining Co. 232 Ind 295~ ~11 NESd 459, 467 (19535, dictum; Sellig- man v. Western & So. Life Ins. Co. 277 Ky 551, 12~ SWSd 419 (1938~; Ostrowsky v. Newark, 102 NJ Eq 169, 139 A 911. (1928); Soho Park & Land Co. v. Board of Belleville, 6 NJ l~Iisc 68~. 142 A 548 (1928); Long Island Lighting Co. v. G.riffin, 272 App Div 551, 74 NYSgd 348 (1947), aff'd 297 NY 897~ 79 NESd 738 ~1948~; Ambrosio w Zoning Board of Appeals. 196 Miss 1005, 96 NYS2d 380 (1949), express ordinance provision held valid; Kiowa Lumber Co. v. 3/lissouri- Kansas-Texas Ry. 185 Okla 841, 95 P2d 592 (1989); Gish v. Extcy, 153 Pa Super 653. 34 A2d 925 (1943); Woodbury v. Zoning Bd. of Review, 78 RI 319, 82 ASd 164 (1951); Alexandria v. Texas Co. 172 Va 209, 1 SE2d 296 (1939). See also Otis v. Los Angeles. 52 Cai AppSd 805, 126 P2d 954 (1942), express ordinance l:rowsion: Marinelli w Board of Appeal, 275 Mass 169. 175 NE 479 (1931), vari- ance allowed upon condition; Douglaston Civic Ass'n v. Board of Standards & Ap- peals. 278 App Div 659. 102 NYSSd 582, aff'd 302 NY 920. 100 NESd 187 (1951); Louffh v. Zoning' Bd. o£ Review, 74 RI 366, 60 A2d 839. 840 ~1948). See Notes 86 ALR 659, 702 (1933): 168 ALR 13, 6O (1947). ~SHopkins v. Board of Appeals, 179 Mist 325, 39 NYS2d 167 (1942). ~ Ibid. 17 Peekskill Packing Co. v. Board of Health. 172 Miss 176, 14 NYSSd 229 (1939). rev'd on other grounds, 261 App Div 915. 25 NYSSd 366 (1941~. ~s Spadafora v. Ferguson: 182 Misc 161, 48 NYSSd 698 (1944). . 19 Soho Park & Land Co. v. Board, 6 NJ Mist 683. 142 A 548 (1928), a re- straint on alienation and unreasonable; Olevson v. Zoning' Bd, of Review, 71 RI 303. 44 ASd 720 ~0 Soho Park & Land Co. ~. Board, note 19 supra. ~Teg'lund v. Dodge, 3]6 Mich 185, 25 NWSd 161 (1946); Brandon v. Montclair, 124 NJL ~35, 11 ASd 804 (1940), aff'd 125 NJL 367. 15 ASd 598 (1940); Thomas v. Board of Standards &Appeals, 290 Ny 109, 48 NESd 284 (1951); La Sala v. Garcia, 70 NYSSd 833 (1947). See Note 168 ALR 13, 100 (1947l. ning, shoring up or other protection for adjoining property? A nd where an ordinance authorizes a board to permit extension of non- conforming uses on appropriate con- ditions, the board may not impose conditions :ma permitted change ~o a similar or higher class/flea,bm of nonconforming use.~ The grant of a variance without providing con- ditions or safeguards as required by ordinance renders the action voidable on appeal? A zonin.~' board may a~x conditions re~troactivcly to a variance previously granted if no vested rights have accrued:eS but any unreasonable conditions im- posed by a board may be set aside by the court.~¢ A board is nor required to impose t~e same conditions upon all or similar variances.~* The fad that only one of the conditions imposed by the board was stated in thc no- tice of the grant of a variance does not relieve the applicant fro,, the other eondkions imposed.SS And a court ma}, order a zoning board to qualify a special permit for a mereial use in a resident/al zmm, by stating, conditions and safe.,a'uards which were omkted from th{, per- mit? A bond may be required ~o insure ~Fey v. Woerm~nn, 360 M5 728. 230 SW2d 681 ~SAbbadessa v. Board o£ Zonin?: peals, 134 Corm 28. 54 Agd 675 ~¥oung~ v Zening Bd. 127 Corm 715. ~7 Agd 513 (1941]; Strauss v. Zon- ing Bd, o£ Review. 72 RI 107. 48 Agd 349 (1946~. ~ Ambrosio v Zoning Bd. 19~; Mist 1005, 96 NYSgd 380, 383-84 (1949). ~c Selligman v. Western & So. Life Ins. Co. note 1_4 supra. ~TVogel v. Board of AdjustmenL. 121 NJL 236. 2 A2d 189 (1938); Appeal of Consolidated Cleaning Slops, Inc.. 103 Pa Super 66, 157 A 811 (1931~; Fiske v. Zoning Bal. of Review. 70 RI 42t;. 40 Agd 435 19~4 . timely performance of conditions,a; but a board may extend the time for compliance where there has been substantial progress made toward complying with the conditions posed.a The consent of nearby property owners may be accepted as compliance with imposed condL ti.ns? The grant of a variance which authorizes the building in- spector to determine whether con~ ditions imposed by the resolution and permit have been complied with was held not to be an improper dele~ gat/on of 'the board's authority. SO However, a zoning board may not reserve to itself the power to deter= mine in the future whether the con- ditions hnposed have been violated where this power has been delegated to the building inspector, even though the board may revoke the permit upon a showin? of violations brought to its attention by an appeal from the building' inspector's rul- ings.s~ Likewise a court may not as- sume that the conditions imposed by the variance will be violated? It is not the duty of a zoning board or the court to search out and list the uses which the board may approve by way of variance from the uses permit*ed by the zoning or- dinance? 23 Selligman v. \Vestern & So. Life Ins. Co., note 14 supra. ~s Oursler v. Bosrd of Zoning, Appeals, 204 Md 397, 104 Arid 568, 572 (1954}, s0 Amis v. Bryan Petroleum Corp., 185 Okla 206, 90 Pgd 936, 939-40 (1939}. s~ Flelscher v. Murdock, 62 NYSgd 417, 419 (1946). s~ tn re I-t mpstead, 245 App Div 750, 280 NYS 448 (1935). as Brandon v. Montclair, 124 NJL 7135, 11 Agd 304. aff'd t25 NJL 3G7, 15 Agd 598 (1940)o se'Kelley v. Board of Zoning Appeals, 126 Conn 648, 13 Agd 675 (1940}. s~ Hannigan v. Murdock, 47 NYS2d 855, 858 (1944). ~6 Cobble Close Farm v. Board of Ad- justment, 10 NJ 442, 92 A2d 4, 10 (1952). A zoning board may reconsider its prior variance decision upon dis- covery of new or additional facts or considerations which materially af- fect the merits of the former de- cision? such as fraud or mistake in making the grant,ss provided no vested rights have intervened,ss A petitioner who has not appealed a previous denial of a variance and makes no showing of a change in cir- cumstances is not entit].ed to a sec- ond hearing on the same variance? But a prior denial does not prevent the granting of a 'variance upon a new application showing a chan~e in circumstancesfi~ Whether there is such a change of facts or circum- stances as to warrant reconsidera- tion of its decision is primarily for the board to determine in the first instance? If a board's order on a variance is void, a subsequent hear- ing upon the same application is an original one and not a rehearing,4s Furthermore, the rule prohibiting the refiling of a variance application 87 Spencer v. Board of Zoning Appeals, 141 Corm 155, 104 A2d 373. 375 (1954~: Benner v. Tribbitt. 190 Md 6. 57 Agd 340 (1948); Home Builders Ass'n v. Paramus, note 9 supra, 81 A2d at 756-57; Reed v. Board of Standards & Appeals, 255 NY 126, 174 NE 301 (1931); Application of American Seminary of the Bible. Inc. 104 N¥Sgd ~60. 682-65 (1951); Mustard v. Bluefield, 130 W Va 763, 45 SEgd 326 (1947). See Note 168 ALR 13, 124 (1947). ss Miles v. McKinney, 174 Md 551. 199 A 540, 117 ALR 207 (1938). so M~tchell Land Co. v. Planning & Zon- ing B& o~ Appeals, 140 Corm 527, ' 02 Agd 316. 319~20 (1953), dictumo ~0 Caper w Parker, 271 App Div 83°,, ~ NYSgd ~0 (1940,. ~ St. Patrick's Church Corp. v. Daniels, 113 Corm 132, 187, 154 A 343, 345 (1931); Tzeses v. South Orange, 22 NJ Supe-' 45, 91 Agd 588, 592-93 (1952); Reed v. Board of Standards & Appeals, note 37 supra; Application of Brou~'hton Estate, 210 NC 62, 185 SE 434 (1936). See Note 168 ALR la, 127 (1947). after the denial of the original ap- plication is not applicable to a denial based on failure to submit a suf- ficient plan or design? Statutes and ordinances some- times authorize an appeal to the city councit,~s or to a state emergency housing commission ~ from the ac- tion of a zoning board or commission on a variants A statute reducing such a housing commission's power to grant variances does not affect the merits of a variance granted prior to the enactment of the stat- uteri7 The authority of a zoning board to allow a variance is not unlimited, and its discretion is subject to re- view.is One applying for a variance may not in that proceeding' or in a review on certiorari, attack the con- stitutionality of the zoning ordi- nance, since by filing an application for a variance he admits the ordi- nance's validityfis An attack upon the validity of a zoning' ordinance is distinguishable from the remedy ~2 Ellsworth Realty Co. v. t(ramer, 268 App DN 824, 49 NYSgd 512 (~944)o But see Burr v. Rage, 120 Conn 287, 180 A 444 11935~. 48 Nicolai v. Board of Adjustment, 55 Arlz283, 101 Pgd !9~ (1940). i!Torrance v. Bladel, 195 OMa 68, 155 Pgd 546 (1945). !~ See Bradbeer w England. 104 Cai Appgd 704, 232 Pgd 308, 311 (1951). a~ See Miller v. Emergency Housing Corem'n, 330 Mass 693, 116 NEgd 663. 665- 66 (1953 L ~ Id. 116 NEgd at 667-68. 4,8 Jung's Appeal, ~No. 1). 89 Pa Super 543 (1926). But see Board of .5cuing Ap- peals w Waintrup, 99 Iud App 576, 193 NE 701 (1935), the power and discretion to vary a zoning ordinance rest solely with the board, and the question whether it should vary the ordinance is not review- able by a court, except for illegality in the proceedings See NIMLO, ~/[UNICIPAI,- ITIES AND THE LAW IN ACTION 105-14 (1938B ed). ~s Note t68 ALR 13, 144 (1947). of securing a variance from a zon- ing board. The one is based on right, the other on favor. The one challenges the validity of the ordi- nance itself, and entitles the owner to a court trial on questions of law and facts; whereas an appeal from a decision of the zoning board is re- stricted to a review of the propri- ety of the exercise of the board's power and discretion.50 A provision of a zoning ordinance making the board's decision final is valid, but does not preclude one from assert.~ ing in a proper judicial proceeding that the zoning law is unconstitu- tionally applied to his property.~ Ordinarily decisions of zoning boards upon variance applications are reviewable by certiorari.~ And statutes may permit other methods of reviews such as by appeal,~ but quo warranto? and mandamus 6 are generally not p roper remedies. While mandamus does not lie to compel a zoning' board to revoke a building permit,v it has been held to be a proper remedy to co~npel a zoning board to rescind its action in reopening a variance application where it lacked jurisdiction to do so.s Injunction ordinarily does not lie to restrain action by the board,~ but an injunction has been granted to enjoin the grant of a variance where proper notice was not givenJ~ There is a prima facie presump- tion that the power and discretion of the board have been properly ercisedJ~ and its decisions are pre- sumed to be correct,~ whether it is a grant ~ or $ denial x~ of a vari- ance, particularly so in collateral attacksJ~ But such a presumption 50 Bronxville Ass'n v. Brady. 36 NYS2d 308, 310 (1942). See Note 168 ALR 13, 130 (1947). ~ Rubin v. Board of Directors, 16 CM2d 119, 104 P2d 1041 (1940), citing Board of Zoning Appeals v. Waintrup, 99 Ind App 576, 193 NE 701, 703 (1935). ~ Coleman v. Board of Appsal, 281 Mass 112, 183 NE 166 (1932). But cf. Brandon v. Montclair. 124 NJL 135, 11 A2d 304, aff'd 125 NJL 367, 15 A2d 598 (1940), certiorari does not lie to review a mere recommendation of a hoard of adjustment, which has not heen acted upon ,by~ the gov- erning hody. s Hopkins v. Board of Appeals, 178 Misc 186, 33 NYS2d 396 (1942). 4 Clap v. Attleboro, 310 Mass ~05, 39 NE2d 431 (1942). ~ State v. Valz, 117 Pla 311, 157 So (1934). 6 Rubin v. Board of Directors, note 1 supra: Hadden, Inc. v. Inglewood, 101 Cal App2d 47, 224 P2d 913, 914 (1950). See Note 168 ALR 13, 130 (1947). ~ State v. Quinlan, 182 La 721, 162 So 577 (1935). s Heyman v. Welsh, 137 Misc 278~ 242 N¥S 517 (1930). 9 Greece v. Smith, 256 App Div 286, 9 NYS2d 21 (1239). ~oZimmerman v. O'Meara, 215 Iowa 1140, 245 NW 715 (1932). 1~ St. Patrick's Church Corp. v. Daniels, 113 Corm 132, 154 A 343 (1931); Grant v. Board of Adjustment, 133 NJL 5t8, 45 A2d 184 (1946); Shipman v. Montclair, 16 NJ Super 365, 84 A2d 652, 554 (1951); Hopkins v. Board of Appeals, 179 Mist 325, 39 NYS2d 167 (1942). See Note 168 ALR 13, 146 (1947). ~s Matron so v. Board of Adjustment, 5 NJ Super 94, 68 A2d 470 (1949); Joyce v. Dohson, 255 App Div 342, 8 NYS2d 768 (1938); Rohinson v. Narragansett, 60 RI 422, 199 A 308 (1938). See Note 168 ALR 13, 123 (1947). 18 E.g., Thompson v. Phillips Petroleum Co. 194 Okla 77, 147 P2d 451 (~944), the presumption of correctness should be given great weight; People v. WaIsh~ 131 Misc 581, 227 NYS 570 (1928~; Mingle v. Board of Adjustment, 6 NJ Mist 595, 142 A 367 (1928). See Note 86 ALR 659, 595 (1933). l~E.g., Herman v. Board of Adjust- ment, 29 NJ Super 164, 102 A2d 73, 74 (1953); Revorg Realty Co. v. Welsh, 225 App Div 774, 232 NYS 141 (1928), aff'd · vithout opinion, 2~1 NY 515, 168 NE 410 (1929); In re Dawson, 136 Okl~ 113, 277 P 226 (1928). 15 Beckmann v. Talbot, 278 NY 146, 15 NE2d 556 (1938), conclusivel~ presumed correct in the absence of any indication to %he contrary in the record. does not prevail where the factual basis or reasons are not stated in the beard's decision.~ One who ob- jects has the burden of showing er- ror, arbitrary action, abuse of dis- cretion, or illegality of the board's determination? and a court may not substitute its judgment for that of the zoning board? Thus, decisions of a zoning board which are sup- ported by competent evidence? and proper findingsr° are 'conclusive upon the courts. The function of a court in review- ing a zoning board's decision is limited to the determinations of whether the board acted within thc limits of its power, or abused its discretiono~ And ordinarily the court may not try the case de novo,~ even upon agreement or stipulation by the parties,~ in the absence of a statute specifically authorizing a trial de novo? Thus in the ab~ sence of a statutory provision au- thorizing a trial de novo, a court may not permit the introduction of new evidence? But statutes may authorize the taking of new or ad- ditional evidence when necessary? or permit introduction of evidence~ on issues which could not be heard by the board, such as a claim for damages,a~ And 'it has been held that the introduction in. a reviewing court of new supplementary evi~ ~L~ Holding Corp. v. Welsh, 120 Misc 467~ 199 NYS 534 (1923). ~7 De Felice v. Zoning Bd. of Appeals, 130 Corm 156, 32 A2d 635, 147 ALR 161 (1943 : Baird v. Board of Zoning Ap- peals, 347 Ill App 158, 106 NE2d 343, 349 (1952l: Herman v. Board of Adjustment, 29 NJ Super 164, 102 A2d 73, 74-75 (1953): PereIman v. Board of Adjust- ment, 144 Pa Super 5, 18 A2d 438 (194t); Nutini v. Zoning Bd. 78 RI 421, 82 A2d 883 (i95t). 18 Wilcox v. Pittsburgh, 121 P2d 835 (3d Cir i941~; Torello v. Board of Zon- ing Appeals, 127 Corm 307, 16 A2d 591 (1940~; Botz v. Carrett, 159 SW2d 367 (Mo App 1942); Freeman v. Board of Adjustment, 97 Mont 342, 34 P2d 534 (1934); Beirn v. Morris, 14 NJ 529, 103 A2d 361, 365 (1954t: People v. Randall, 254 App Div 310, 5 NYS2d 40 (1938); North Titus Residential Ass'n v. Board of Zoning Appeals. 127 NYS2d 502, 504 (1954); Texas Consol. Theatres, Inc. v. Pittillo, 204 SW2d 396, 398 (Tex Civ App 1947~. See, Note 168 ALR 13, t49 (~947). ~ Linden Methodist Episcopal .Church v. Linden, 113 NJL 188, 173 A 593 (1934). ~o Oursler v. Board of Zoning Appeals, 204 Md 397, 104 A2d 568, 572 (1954); Pieretti v. Johnson, 132 NJL 576. 41 A2d 896 ~1945); Perelman v. Board of Adjust~ merit. ~44 Pa Super 5, q8 A2d 428 (194]): Ricci v. Zoning Bd. of Revie~v, 72 RI 58. 47 A2d 923 ~1946~. ~See Note 108 ALR 13. 149 (1947), ~1 Nielsen v. Board of Appeals, 129 Corm 285, 27 A2d 392 (1942); Board of Zoning Appeals v. Waintrup, 99 Ind App 576, 193 NE 701 (1935); Lambert v. Board of peals, 295 Mass 224. 3 NE2d 784 (1936), only errors of law may be reviewed and not commonly finding of fact; State Kansas City, 325 Mo 95, 27 SW2d 1030 (1930l; People v. Walker, 252 NY 400, 26 NE2d 952 (1940); Livingston v. Pet-- erson, 59 ND 104, 228 NW 816 (1930); Buckministcr v. Zoning Bd. of Review, 68 RI 515. 30 A2d 104 (1943). See Note 168 ALR 13, 141 (1947). ~Board of Zoning Appeals v. Wain- trup; State v. Kansas City, both note 21 supra. ~s People v. Walker, ~ote 21 supra. s~ See, Anderson v. Jester, 206 Iowa 452, 221 NW 354 (t928]; Vogel v. Board of Adjustment, 92 NH 195, 27 A2d 105 (1942). See also Van l~Ieter v. H. F. Wil- cox Oil & Gas Co. 170 Okla $04, 41 P2d 904 (1935). ~5 Prusik v. Board of Appeal, 262 Mass 45!, 160 NE 312 (1928); Ports v. Board of Adjustment, 133 NJL 230, 43 A2d 850 (1945). See Note 168 ALR 13, 143, 146 (1947). ~6 See. Berard v. Board of Ad~ust'ment, 138 SWed 731 (Mo App 1940); People v. Connell, 257 NY 73~ 177 NE 312 (1931); }~arrison v. Hopkins, 48 Rt 42, ]35 A 154 (1926); State v. Hunt, 235 W;s 358, 291 NW 745 ~1940)o See Note 168 ALR 13, 147 (1947). ~7 Dolan v. De Capua, 16 NJ' 599, 109 A2d 615, 622 (1954). dence adverse to an applicant who was properly denied a variance by a zoning board was not prejudicial error.28 It is well settled that the decision of a zoning board on whether to gran~ or deny a variance is final in the absence of a clear showing of fraud?9 bad faith,so or illegality,m or that the board's determination is so unreasonable?2 arbitrary,s8 or capriciousfi4 as to constitute a clear abuse of discretion,s5 The question of whether the board's action was arbitrary must be determined from the facts from which the board drew its conclusions, and not from the personal opinions of the board mere- bers nor from the conclusion itself? A variance decision 'which is sup~ ported by competent evidence may not be disturbed by the court? The court, in determining whether a zoning board's grant of a variance was arbitrary, capricious or unrea- sonable, must consider the reasons in their aggregate and the fact that one or more of the reasons standing alone 'would not be legally sufficient should not control its decision,as It is not necessarily an abuse of discretion for a board to deny a variance to one property owner even though variances for the same or similar uses in the distrlet have been granted in the past.s9 A report and ~a Beirn v. Morris, 14 NJ 529, 103 A2d 361, 365 (1954~. 29 McCord v. Ed Bond & Co. 1'15 Ga 667, 165 SE 590, 86 ALR 703 (1932); State v. Gunderson. 198 Minn 51 268 NW 850 (1936); Aschenbach v. Plainfield. 12~ NJL 598, 2 Agd 814. aff'd 123 NJL 265. 8 Agd 579 (1939): Hall v. Walsh, 137 Mist 448. 243 NYS 602, aff'd without opinion, 221 App Div 756. 222 NYS 816 (1927). ~0 Ibid. al Parsons v. Board of Zoning Appeals, 140 Corm 290, 99 Agd 149, 152 (1953): South Bend v. Marckle, 215 Ind 74, 18 NE2d 764 (1939): Anderson v. Jester, 206 Iowa 452, 221 NW 354 (1928); Free- man v. Board of Adjustment, 97 342. 34 P2d 534 t1934;; Mi~go Holding Co. v. Harrison, 48 A2d 919 {NS 1946): People v. Walker, 282 NY 400 26 NE2d 952 (1940); Perelman v. Board of Ad- justment, 144 Pa ~uper 5. 18 A2d 438 (1941); Morgan v. Zoning Bd. of Review, 52 RI 338. 160 A 922 (1932) ~ Drisketl v. Board of Adjustment, 195 SWgd 594 (Tex Civ App 1946). See Note 168 ALR 148 (1947). ss Evans v. Little lgock, 22~ Ark 252. 253 SW2d 347 (1953); Beverly Oil Co. v. Los Angeles, 40 Calgd 552, 560. 254 Pgd 865, 869 (1953); Ward v. Scott, 16 NJ 16. 105 A2d 851. 854 (1954); Petrarca v. Zoning Bd. of Review. 78 RI 130. 80 Agd 156. 157 (1951). a8 Evans v. Little Rock; Beverly Oil Co. v. Los Angeles, both note 32 supra: Pie- cir}llo v. Board of Appeals, 139 Corm 116. 90 Agd 647, 649-50 (1952), grant of vari- ance reversed; Ward v. Scott, note 32 pra; People Vo ConneH 257 NY 73, 177 NE 313 (1931); Lee v. Board of Adjust- ment, 226 NC 107, 37 SE2d 128, 168 ALt{ 1 (1946); Petrarca v. Zoning Bd. of Re- view, note 32 supra. aiYVard v. Schott. note 32 supra; Beirn v. Morris, note 28 supra, s5 Pieeirillo v. Board of Appeals, note 33 supra; McCord v. Ed Bond & C. Co. note 29 supra: Morgan ~. Chicago, 370 Ill 347. 18 NEgd 872 (1938); South Bend v. Marckle. note 31 supra; State v. Gunderson, no;e 29 supra; Freeman v. Board of Adjustment, I~o;e 31 supra: Ward v. Scott. no;e 32 supra; People v. Walker. no;e 31 supra; Lee v. Board of Adjustment. no;e 33 supra; In re Mich- ener's Appeal. 382 Pa 401. 115 Agd 367, 372 (1955); Petrarca v. Zoning Bd. of Re- view, note 32 supra: Driskelt v. Board of Adjustment, note 31 supra. See Note 168 ALR 13, 122, 148 (1947). 8~ Oursler v. Board of Zoning Appeals, 204 Md 397, 104 A2d 568, 571 (1954). s7 Application of Berger, 277 App Div 1142, 101 NYSgd 330 (1950). 8s Ward v. Scott, note 32 supra, 105 A2d at 854-55. a~ Otis v. Los Angeles, 52 Cal App2d 605. 126 P2d 954 ~1942); Ports v. Board of Adjustment, 133 NJL 230, 43 A2d 850 f1945); Larkin Co. v. Schwab, 242 NY 330. 151 NE 637 (1926); Brous v. Hemp- stead, 272 App Div 31, 69 NYS2d 258 (1947); Hasley's Appeal. 151 Pa Super 192, 30 A2d 187 (1943~; Young v. Abilene, 195 SW2d 838 /Tex Civ App 1946). But cf. Coulthard v. Board of Adjustment, 130 Neb 543, 265 NW 530 (1936). recommendation for the gran~ or denial of a variance by a zoning board 1o a city council is merely di- rectory, and in the absence of a clear showing of fraud or abuse of discretion by the council, the courts may no~ interfere with its final de- termination in accepting or reject- ing the board's recommendart°nj° And a finding by a city council that a variance is warranted may not be disturbed by the courts if there is ground for legitimate differences of opinion.~~ Under an ordinance con- raining provisions p~rmitting two kinds of variances with differen~ quiremen~s for each, it has been held that a variance may be granted un-.. der one provision and sustained by invoking ~he other provision.~ § $2-28. Exceptions. As indicated nreviously a "variance" and an "ex- Ception'' are entirely different. A variance ma~y be ~rant_edo~y_ appea, to a zoning board from ad- ~t r gti~e action? application for an exception ~.~y be ~ in ~he first in~4nc~Jth ~the b~ However, app]icafions for ~cept~ons come re the board usually after the building inspector has re- fused to issue a permit, just as do result, it has become the practice to join in one application a request for an exception or a variance, leav- ing it to the board to determine on which ground they may grant the application.~ Generally all applica- tions a re treated as variances by the board, unless the application shows on its face that the use is named as an "excep~io~'~rdi- nance.~~4 application ~o specify any ordinance pro-~ vision, and the record thus contains no evidence that a claim for a spe- cific exception was made. the board must consider it as an application for a var~ancefiv And if the review- ing court is unable to tell whether zhe board acted on the application as one for a variance or for an ex~ cepiion, the court must treat it as an application for a variance? In the absence of a specific pro- vision of law requiring it, one need ~how unusual hardship to secure ~~n.4S However, zoning or- dinances may require proof of un- usual difficulty or hardship for the granting of an excep'~ion? and an exception under such a provision has been sustainedJ And a requirement that variances be in conformity with 40 Sclnaible v. Board of Adjustment, 134 NJL 473. 49 Agd 50 11946); Sun Oil Co. v, Cliftom 13 NJ Super 89, 80 Agd 258, 261 ~1951). 41 ])owney v. Grirnslaaw, 410 Ili 21, 10l NE24 275, 279 (1951); Baird v. Board of Zoning Appeals, 34~ Ill App 158, 106 NEgd 343. 347 (t952). 42 Thomas v. Board of Standards & Ap- peals, 263 App ])iv 3.~2. 33 NYS2d 219, 224 ~1942), rev'd on other grounds by 290 NY t09, 48 NERd 284 (1943~. la Lambert v. Board of Appeals, 295 Mass 224, 3 NEgd 784 (1936); Lukens v, Zomn~ Bd. of Adjustment, 367 Pa 608, 80 A2d 765 ~1951). ~ Harrison v. Zoning Bd. of Review, 74 RI 135, 59 Agd 361. 363-65 (1948). 4~ Ibid. · s Caccia v. Zoning Bdo of Revie~v, 113 A2d 870. 871 (RI 1955). 47 Winters v. Zoning Bd. of Review, 80 RI 275, 96 Agd 337. 339 (1953). 48 Cardin v. Zoning' Bd. of Review, 80 R~ ]36, 93 A2d 304. 305-06 ~1952). ~s Hannigan v. Murdock. 47 NYSgd 8~5 857 (1944); Appeal of Borden, 369 Pa 5~7- 87 Agd 4~5. 466-~7 ~1952): Con- siantino v. Zonin~ Bd. 74 RI 218, 60 Agd 478~ 481-83 (1948), following' Harrison v. Zoning' Bd. of Review 74 RI 135, 59 Agd 361. 363-65 (1948). 50 Thomas v. Board of Standards & Ap- peals, 263 App Div 352 33 NYS2d 219, 222-24 (1942)~ reversed on other grounds~ 290 NY 109,48 NE2d 284 t1943). ~W]lliam Borea Co. v. ~urdock, 250 App DN 262, 294NYS 19 (1937). ale spirit of tl~e zoning act is applicable to special exceptions? Likewise, an applicant for a special exception does not have the burden of proving that the exception will promote the health, safety, morals and general welfare of the immedi- ate community,S nor of showing a compelling, need or great desirabil- ity for the special exception.4 But an ordinance may permit the zoning board to grant "specialexceptmns' " only after a showing that the public convenience and welfare will be sub- stantially served and neighboring property not substantially or per- manently injured thereby.~ It is not contemplated that special exceptions should become a routine alternative method for extensive changes in zones fixed by the city council, nor an easy means to avoid the burden of showing undue hardship by seek- lng a variance.~ The power to grant exceptions should be exercised spar- ingly, and only in exceptional eases to prevent unnecessary burdens which deprive an owner of the rea- sonable and beneficial use of his property, or to protect an owner agains~ arbitrary effects which might result from 'the literal en- forcement of the zoning ordinance? If these conditions are not met the grant of an exception will be held invalid as an abuse of discretion.S In granting exceptions a zonins ~ Dunham v. Zoning Bd. 68 RI 88, 26 And 614 (1942). SAppeM of Borden~ 369 Pa 517, 87 And 465 466 ~1952~. ~ Id. 87 And at 467. s See Harts v. Zoning Bd. of Review, 80 RI 43, 91 And 33, 36-37 (]952). 6Id. 9] A2d at 37. 7 Ibid. s Id. 91 And at 38. s Harrison v. Zoning Bal. of Review, 74 RI 135. 59 And 361, 363:65 (1948). 1~ Cardin v. Zoning Bd. of Review. 81 RI 497, 104 A2d 752, 753-54 (1954); Board of Adjustment v. Stovall, 218 Swnd 286 (Tex Civ App ~949). board is generally restricted to such special exceptions as the ordinance prescribes,s and it may not permit an exception if the conditions pre- scribed do not exist.~ The grant of an exception has been justified in some instances on the ground that if exceptions were not granted the burden would be so ~reat on the property owners as to make the ordinance pro tanto in- valid,n An ordinance granting the power to make exceptions must con- tain proper standards or rules of guidance? and such an ordinance does not unconstitutionally delegate legislative powers to the board,~S for in granting or denying an exception as authorized by the express terms of a zoning ordinance the board is not rezoning or usurping legislative power34 That a~ exemption in ~ zoning ordinance is applied to all owners in one use district, but de- nied to other use districts does not make the ordinance invalid as e/ass or special legislation3* An application for an exception is an appropriate way to test the valid- ~ty of a zoning ordinance as applied to particular property. The question of validity may ordinarily be raised by a bill in equity, but may also be raised on an appeal from the zoning board, even though it was not raised before the boardn.~ To be ~ustained, a decision of the H Hoffman v. Baltimore, 197 Md 294, 79 And 367, 372 (1951). 1 Underhill v. Board of Appeals, 72 NYS2d 588 (1947~, afl'd, 273 App Div 788, 75 NYSnd 327, afl'd, 297 NY 937, 80 NE 342 (1948). lain re Dawson, 13~ OMa 113, 277 P 226 (1928). See Note 86 ALR 659~ 675 (1933). ~4 Constantino v. Zoning Bd., 74 RI 316, G0 A2d 478, 481-83 (1948). ~ Halpern v. Da ssler, 135 NYS2d 8, 12 (1954). 1~ Hoffman v. Baltimore, note 1I supra. board granting an exception must be justified by substantial evidence showing compliance with the zoning requirement3* And, as stated by the courts, the grant of a special excep- tion will be sustained unless it can be clearly shown that it is arbitrary, capricious and unreasonable, or clearly in violation of positive law.is Thus a court will not substitute its judgment for that of the board where it does not appeaF from the record that the board abused its dis- cretion, or acted in bad faith, or was unreasonab]s, arbitrary, or discrim-. inatory.~s On 'the other hand, where an ordinance provides for a manda- tory waiver of a zoning ordinance's requirements under specified cir- cumstances, any additional condi- tions attached to the waiver are in- valid? And it has been held tha'[ once it is decided that a particular use comes within the special excep- tions provided by the ordinance, anything which logically accom- panies the normal operation of that use must also be authorized, al- though not specifically listed in the ordinance as a permitted exeep.- tion.~ The power of a zoning board to review a prior decision denying an exception is not limited, as it is in the case 6f a variance, to cases where a change of conditions has occurred or where other considera- tions materially affecting the merits of the subject matter have inter~ vened, but includes cases where the owner files a subsequent application altering the plan under which he previously sought the exception so as to obviate the objections of the board in previously denying the ex-. ception? Likewise, the fact ~hat an appeal is pending from the board's deci- sion denying an exception, does not foreclose the board from reconsider- ing and granting the exception after the filing of a revised application? § $2-24. Aesthetics° A zoning or- dinance based solely on aesthetic considerations has generally been held invalid as not a proper exercise of the police power? But the courts have held that aesthetic considera- tions are entitled to some weight along with other valid considera-- tions in determining the reasonable- ness and wAidity of a zoning regula- tion.~ And recent developments in the laxv indicate a trend toward ju- dicial approbation of zoning ordi- 17 Abbott v. Zoning Bd., 78 RI 84, 79 A2d 520, 628-24 (1951). ~s Appeal of Borden, 360 Pa 577. 87 A2d 465 466 (1952). ~9 Wiegan v. Board of Standards & Ap- peals, 229 App Div 320, 321-22, 241 NYS 456, aff'd without opinion, 254 NY 599, 173 NE 883 (1930). ~o Fey v. Woermann, 360 l-/I~ 728, 230 SWnd 681 (1950). m Appeal of Bo:'den, no~e 18 supra, 87 And at 467, parking lot and restaurant must be authorized as part of special ex- ception for apartment building. ~2 Mitchell Land Co. v. Planning. & Zon- lng Bd of Appeals, 140 Corm 527, 102 And 316, 819-20 (1953). as Id, 102 And at 320. ~ Union Trust C-,. v. Chicag'o~ 408 Ill 91, 96 NEnd 499 (1951); 122 Main Street Corp. v. Brockton, 323 Mass 646, 84 N'End t3, 8 ALRnd 955 (1949); Point Pleasant Beach v. Point Pleasant Pavilion, Inc. 3 NJ Super 222, 66 And 40 (1949); Crone v. Brighton, 119 NYS2d 877 (1952); Cleveland Trust Co. v. Brooklyn, 92 Ohio App 351, 110 NEnd 440 (1952); Appeal of Lord, 368 Pa 121, 81 A2d 533 (1951). See Notes 86 ALR 659, 669 (1933); 168 ALR 13~ 44 (1947). See also ch. 26 § 26-4 supra. ~ 122 Main Street Corp. v. Brockton, note 24 supra; Barney & Casey Corp. v. Milton 324 Mass 440, 87 NEgd 9 (1949); Burlington v. Dunn, 518 Mass 216, 61 NEnd 243, 158 ALR 1182 (~945), gown zoning by-laws restricting the use of va- cant lands; Criterion Service, Inc. v. East Cleveland, 88 NE2d 800 (Ohio App 1949),