In the case Phillips, et al. v. Westlake Board of Zoning Appeals, the board granted a use variance to the homeowners association (HOA), allowing the HOA to build a fence around an oddly shaped lot within 1.5 feet of the sidewalk when the current zoning rules required a setback of 35 feet.

The fence was replacing an old, worn fence, and the HOA stated that the setback variance was required for the safety of passing children.

The homeowners, Robert and Karen Phillips, whose property is immediately adjacent to the fence, appealed the grant of the variance to a trial court.

In the case Phillips, et al. v. Westlake Board of Zoning Appeals, the board granted a use variance to the homeowners association (HOA), allowing the HOA to build a fence around an oddly shaped lot within 1.5 feet of the sidewalk when the current zoning rules required a setback of 35 feet.

The fence was replacing an old, worn fence, and the HOA stated that the setback variance was required for the safety of passing children.

The homeowners, Robert and Karen Phillips, whose property is immediately adjacent to the fence, appealed the grant of the variance to a trial court.

At trial, the court affirmed the Board of Zoning Appeals’ decision to grant the variance but reclassified the variance as an area variance rather than a use variance. The homeowners then appealed the trial court’s ruling.

The appellate court affirmed the trial court’s upholding of the Board of Zoning Appeals’ decision, as well as the reclassification of the variance.

On appeal, the court found that because an area variance involves structural and lot restrictions while a use variance allows land to be used for purposes other than permitted, the HOA clearly sought a use variance. Further, the HOA demonstrated practical difficulties and unnecessary hardship complying with the current zoning rules due to the odd shape of the lot, and also provided evidence that the variance was in alignment with public safety, the stated "purpose and intent" of the zoning code.

Accordingly, the appellate court ruled that the trial court’s ruling was reasonable and affirmed.

Tara-Nicholle Nelson is author of "The Savvy Woman’s Homebuying Handbook" and "Trillion Dollar Women: Use Your Power to Make Buying and Remodeling Decisions." Ask her a real estate question online or visit her Web site, www.rethinkrealestate.com.

***

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