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<br />~ 6.03[3]
<br />
<br />ZONING
<br />
<br />6-20
<br />
<br />builds in violation of the ordinance will be denied any subsequent
<br />variance request based on a hardship claim.10o
<br />However, at least one court has found a distinction in hardship
<br />cases between area variances and use variances.100.1 This case stated
<br />that self-imposed hardship alone is not a proper basis for denying an
<br />area variance. The court held that an applicant for an area variance
<br />must prove "practical difficulties," rather than the more demanding
<br />"unnecessary hardship" standard required to justify a use variance.
<br />In reviewing an application for an area variance, the basic question,
<br />said the court, is whether strict application of an ordinance in a
<br />given case serves a public purpose that outweighs the injury to the
<br />property owner. Thus, where compliance with the area require-
<br />ments for a residential setback line would require $40,000 to a
<br />partially completed house, a variance should be granted.1oo.2 Other
<br />factors relevant to this determination include the magnitude of the
<br />desired variance, whether the "difficulty" was self-created, and
<br />whether the difficulty can be avoided by other means.
<br />A few courts have, probably erroneously, expanded the self-
<br />induced hardship limitation to include prior knowledge, as well as
<br />prior acts. In these cases, a variance is denied to an owner who
<br />bought property with a limiting characteristic or conditions, such as
<br />small or irregular lot size which the buyer knew or should have
<br />known existed. 101 These courts may deny the variance, not because
<br />
<br />100 In re Volpe's Appeal, 384 Pa. 374, 121 A.2d 97 (1956); Appeal of Pierce, 347
<br />P.2d 790 (Okla. 1959).
<br />100.1 Human Dev. Services of Port Chester v. Zoning Board of Appeals, 493
<br />N.Y.S.2d 481 (App. Div. 1985); affd, 67 N.Y.2d 702,490 N.E.2d 846, 499 N.Y.S.2d
<br />927 (1986); see aiso Putrino v. Zoning Board of Appeals, 496 N.Y.S.2d 827 (App.
<br />Div. 1985) (holding that self-imposed hardship alone does not preclude granting an
<br />area variance); Jackson v. Kirkpatrick, 509 N.Y.S.2d 572 (App. Div. 1986).
<br />100.2 McCready v. Curcio, 531 N.Y.S.2d 347 (App. Div. 1988).
<br />101 Application of Devereux Foundation, 351 Pa. 478, 41 A.2d 744 (1945); Clark
<br />v. Board of Zoning Appeals, 301 N.Y. 86, 92 N.E.2d 903 (1950); In re Cresko, 400
<br />Pa. 467,162 A.2d 219 (1960); Bellamy v. Board of Appeals, 32 Misc. 2d 520, 223
<br />N.Y.S.2d 1017 (Sup. Ct. 1962); Appeal of McClure, 415 Pa. 285, 203 A.2d 534
<br />(1964); Abel v. Zoning Bd. of Appeals, 172 Conn. 286, 374 A.2d 227 (1977); cf
<br />Wilson v. Borough of Mountainside, 42 N.J. 426, 201 A.2d 540 (1964); A.L.W., Inc.
<br />v. District of Columbia Bd. of Zoning Adjustment, 338 A.2d 428 (D.C. App. 1975);
<br />Appeal of Oswald, 63 Pa. Commw. 638, 438 A.2d 1029 (1982); Sibley v. Inhabitants
<br />of Town of Wells, 462 A.2d 27 (Me. 1983); Van Landschoot v. City of Mendota Hts.,
<br />336 N .W.2d 503 (Minn. 1983); Consolidated Mgt., Inc. v. City of Cleveland, 6 Ohio
<br />St. 3d 238, 452 N.E.2d 1287 (1983); Witherspoon v. City of Columbia, 351 S.E.2d
<br />903 (S.c. Ct. App. 1986); Matter of Johnson, 404 N.W.2d 298 (Minn. App. 1987).
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