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.

***

What’s your opinion? Leave your comments below or send a letter to the editor. To contact the writer, click the byline at the top of the story.

Show Comments Hide Comments
Sign up for Inman’s Morning Headlines
What you need to know to start your day with all the latest industry developments
By submitting your email address, you agree to receive marketing emails from Inman.
Success!
Thank you for subscribing to Morning Headlines.
Back to top
Only 3 days left to register for Inman Connect Las Vegas before prices go up! Don't miss the premier event for real estate pros.Register Now ×
Limited Time Offer: Get 1 year of Inman Select for $199SUBSCRIBE×
Log in
If you created your account with Google or Facebook
Don't have an account?
Forgot your password?
No Problem

Simply enter the email address you used to create your account and click "Reset Password". You will receive additional instructions via email.

Forgot your username? If so please contact customer support at (510) 658-9252

Password Reset Confirmation

Password Reset Instructions have been sent to

Subscribe to The Weekender
Get the week's leading headlines delivered straight to your inbox.
Top headlines from around the real estate industry. Breaking news as it happens.
15 stories covering tech, special reports, video and opinion.
Unique features from hacker profiles to portal watch and video interviews.
Unique features from hacker profiles to portal watch and video interviews.
It looks like you’re already a Select Member!
To subscribe to exclusive newsletters, visit your email preferences in the account settings.
Up-to-the-minute news and interviews in your inbox, ticket discounts for Inman events and more
1-Step CheckoutPay with a credit card
By continuing, you agree to Inman’s Terms of Use and Privacy Policy.

You will be charged . Your subscription will automatically renew for on . For more details on our payment terms and how to cancel, click here.

Interested in a group subscription?
Finish setting up your subscription
×