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    The Lawletter Blog

    ZONING: A Variance by Any Other Name . . . Is Not a Variance

    Posted by Gale Burns on Tue, Oct 16, 2012 @ 13:10 PM

    The Lawletter Vol 37 No 7

    Steve Friedman, Senior Attorney, National Legal Research Group

    It goes without saying that certain words mean certain things and other words mean other things.  Indeed, some words are similar but distinct.  For example, in the world of zoning, the word "variance" refers to a means of obtaining a waiver of certain requirements of a zoning ordinance, and a "conditional use permit," or "CUP," concerns the proposed use of property.  See Black's Law Dictionary "special-use permit" (9th ed. 2009) ("Unlike a variance, which is an authorized violation of a zoning ordinance, a special‑use permit is a permitted exception.").  This distinction proved crucial in the recent decision of Burns Holdings v. Teton County Board of Commissioners, 272 P.3d 412 (Idaho 2012), which "illustrates the time and expense that can be expended due to the confusion between a variance and a conditional use permit."  Id. at 413.

    In that case, Burns Holdings purchased property, intending to construct a building 75 feet in height, but the applicable zoning ordinance provided that "[a]ny building or structure or portion thereof hereafter erected shall not exceed forty‑five (45) feet in height unless approved by conditional use permit."  Id. at 415-16.  Accordingly, Burns Holdings applied for a CUP to exceed the height limitation.  However, the County denied the application on the ground that Idaho Code section 67-6516 requires a variance, not a CUP, to obtain a waiver of a zoning ordinance provision limiting the height of buildings.  Burns Holdings timely sought judicial review, and the trial court ultimately affirmed the denial of the CUP, albeit on other grounds.

    On appeal, the Supreme Court of Idaho held that Burns Holdings was required to have sought a variance in order to obtain a waiver of the maximum height limitation in the zoning ordinance.  Furthermore, to the extent that the ordinance provision allowed waiver of the height limitation by a CUP, it violated Idaho Code section 67-6516 and was therefore void.  The court drew a distinction between a variance, which is "a means of obtaining a waiver of certain requirements of a zoning ordinance" and which can be granted only "upon a showing of undue hardship because of characteristics of the site and that [it] is not in conflict with the public interest," id. at 416 (quoting Idaho Code § 67-6516), and a CUP, which concerns the proposed use of property.

    Interestingly, at the CUP application hearing, Burns Holdings' counsel stated:  "I'm not much for labels.  I think the question is, can we build a plant 75 feet high, period.  You put whatever label you want, but I think that's the issue."  Id. at 414.  Famous last words . . .

    Topics: legal research, zoning, variance, conditional use permit (CUP), variance requires waiver of requirements, CUP concerns proposed use, Burns Holdings v. Teton County Board of Commission, Idaho Supreme Court, The Lawletter Vol 37 No 7, Steve Friedman

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