Ep. 69 | Mini-Series On Zoning Options To Utilize Your Property – Variance

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On this episode of The Mobile Home Park Lawyer, Ferd continues his discussion on rezoning, focusing in on variances. Ferd explains when variances should be considered based on your park’s compliance with city code.

 

HIGHLIGHTS:

0:00 – Intro
1:23 – It’s hard to give a blanket answer to someone on what to do
1:58 – A lot of districts don’t want to hear about rezoning and will fight against it
2:57 – A variance is an exception to the rule
3:54 – Variances are supposed to be rare
4:05 – Ferd gives an example of how a variance could apply in MHP
7:18 – There are two types of variance: Use variance and area variance
7:56 – Mobile homes aren’t considered structures
9:03 – The purpose of it is to set you up in a fair equitable situation
9:09 – Look and see if any other park has received a similar variance

 

FULL TRANSCRIPTION:

Welcome back mobile home park nation. Here tonight continuing my discussion from the last episode on rezoning variances and conditional use permits. These again, are ways to maximize and utilize the property to the fullest, despite opposition from a municipality, and really trying to get away from or get out of some sort of code restriction. Oftentimes, these contradictions are not actually valid or enforceable. But sometimes it’s better to play the city’s game and go through the hoops of a rezone or variance or CUB, rather than a lawsuit. I fight these issues quite a bit. The merits of the case on zoning are very, one jurisdiction-specific and two, fact-specific to the particular instance. So it’s really hard to give, you know, a blanket answer to somebody, oh yeah you’ll win, like, well, I haven’t read the code in the city of X, I need to find out I haven’t looked at the case law in the state of Y and the District of Eastern. I’m the only one in Missouri right now where I live, and is where I host my practice. And there’s a really strong Eastern District of Missouri case on setbacks and ability to replace homes and grandfather status.

But a lot of cities, frankly, don’t want to hear about it. And they want to fight it, especially cities that are, we’re in the Western District of Missouri or in the Southern District, Missouri. So the way it works basically is if it’s from a different district, it’s not Supreme Court. It’s not binding. It’s persuasive case law, but it’s not compelling to the point they have to follow it. This is why you see the United States Supreme Court all those cases that they hear, there’s you know, a justiciable controversy that different Court of Appeals districts have ruled on this in different ways where there’s a new indistinct fact pattern.

So anyway, all this stuff is very fact-specific, in case-by-case specific, but it’s important to at least know your rights and know the processes. So we talked about the rezone on the previous episode, I may touch on that some more. But I really want to focus here on variances, and I may get to conditional use permits in this one as well. A variance I tell people, it’s basically an exception to the rule. And you can’t be an exception to the rule is like a favor to me or you, that’s basically spot zoning, it’s a one-off inappropriate exception. But a variance, it’s really coming from an administrative body, a lot of times, typically from a board of zoning adjustment or Board of zoning appeals, which is a quasi-governmental body. You know, basically, they’re appointed citizens who really like dealing with this stuff and really care about their neighborhood, their town. Typically, they’re not paid, they’re not elected officials, you’re not allowed to lobby them, meaning go meet with them and pitch your case like you can in the city council. So it’s definitely a different process. And you got to go through, like rezoning, you got to go through public hearings, and you got to pay a fee and provide documents, but it’s not that onerous process, variants are supposed to be rare. Practice are given out, you know, frankly, more than they should be. But it’s basically an administrative decision or discretionary move to waive some zoning requirement. So for example, in mobile home park world, oftentimes, there’s a code provision that says mobile homes must have the following setbacks from both perimeter and internal to the other buildings. So let’s say for example, that the external perimeter setbacks is 20 feet on the rear and the sides of the property in 30 feet in the front of the property, which is typically the main entrance on the busiest road most times. Well, if I have a mobile home that is currently 29 feet, from the front street, I’m grandfathered in, if my home was there before the 30-foot CooperVision.

But let’s say that home burns down. And it was a 1860s you know, beautiful home with you know, hitch and elevation and planter boxes and pitch roof and porch model and all kinds of great stuff. And I want the same model. Well, I can’t put it in the same spot. Because there’s new code, now that you could argue and I will argue all the time that it is just a parking lot, a mobile home park and I’m immune from the setback requirements, as it pertains to perimeter setbacks, so long as it’s not a fire code issue or a public safety issue. Which if it’s one foot from the street to be a public safety issue because cars can hit it. But 29 to 30, I would frankly argue that you know that code didn’t apply to me, but the city tries, it might not be worth suing, you know, the juice isn’t worth the squeeze perhaps to file a lawsuit to get one foot, maybe I just got to suck it up and buy a smaller house. Or I go for a variance. And the variance is me saying, hey, look, I acknowledge that the code says I can’t bring home within 30 feet of the external perimeter setback. But I had one there 29, I really want the same home. I got it from Grandma, it’s really near and dear to my heart. Can I have an exception to bring the same home and have 29 feet? Well, that would be an area variance, basically, meaning an exception based on the district code relative to what other landowners have, so that the similarly situated landowners have a certain writing restriction, I’m supposed to have the same. The variances like look, I have a hardship. My situation is worse and way my situation is worse, maybe an odd configuration, you know, dense lot, a corner lot. Basically, I wouldn’t ask for a variance when it’s like, hey, look, I’ve got an unusual, quote, unjust, inequitable situation. And I didn’t create it. So in my example, my 30 foot home, my home is 29 feet away in a 30-foot setback. If I put in the roadway in a manner to put the home 29 feet away, because I like the view of the ocean from there or something. Well, I kind of created that. But if the roadway was already there, and it was designed and look, we got a house, then we got a road. And then we got another house at the end of the back property. Well, that’s kind of already shoehorned in there. That was the previous guy, that was the guy that built it 50 years ago. So I would say look, I need a variance. And there are two types of variance. There’s area variance, which I’m talking about ad nauseum. And there’s a use variance. Use variances are pretty rare. And that would be like, Look, I’m in a residential neighborhood, single family, but I really like you know, train cars. And I want to, I want to build a little mini train set or something or I want to put a gas station, a different use that is permitted in my R1 zoning classification. Those are rare, some cities will have to make you go down the conditional use process instead. So I’m going to focus on the ones that are more MHP specific here, which is obviously the setback variance.

And interestingly, mobile homes are not considered structures, unless they’re legally affixed to the real estate, which basically is an abandonment of the title. And you go down the record, I’ve done it once or twice, you got to go record the information on the home at the County Recorder of Deeds office, and they basically forfeiture mobile home and they give you real estate and you get taxed for ad valorem purposes by the county appraisers real property. Doesn’t really happen much in a mobile home park, but it makes the financing easier. And it works. It makes sense to do it if you got a mobile home out on 10 acres and you want to, you know, put it on concrete blocks and everything like that. But not typical on a mobile home park.

Anyway, back to the variance discussion. Sorry, my computer’s buzzing apparently, I don’t know if I’m doing something wrong here. But anyway, the variance is supposed to be something again, unusual characteristics that I didn’t cause. And technically, the variance should be something that’s going to help comply with the comprehensive plan or the zoning ordinance, frankly, didn’t happen a lot like did the cities and these Board of zoning adjustments, get out branches, sometimes for seemingly no reason. But the purpose of it is to set me up in a fair equitable situation. So one thing that’s helpful if you’re ever asked for variances to look and see if anybody else ever asked for similar variance, so if the other parks in town, asked for similar variance and received it, you better get it. If their parks asked for it and did not get it, you probably shouldn’t. And if you do you got lucky and pretty much spot zoning. So you got to work with the city. You got to prove that look, this is necessary because I’ve got a problem that I didn’t create. I bought a park in Illinois one time and you know, the park predated the city. So the guy that sold part of his farm for the park carved out exactly the size they needed for the horseshoe road. And you know 50 some lots and the homes were put in literally up against the property line, which was a fence I mean, some of them were two inches away. Well then, the surrounding farmland was sold off, City Park neighborhood all that. So I wanted to replace some of these homes. Well, they are two inches from the property line. The current setback is 20 feet and fire code is also not going to be my favorite. So I had to go to the city and say, Look, I need a variance from the current setbacks because practically, I cannot reuse these lots, these are 60-foot homes on a 60-foot, two-inch lot. If I got to abide by a 20-foot setback, I’m talking 14-foot, two-inch homes. I’m screwed, right? I can’t use those. I can’t do anything with them. And there was no, there were no structures or buildings on the adjacent property within the fire code. So I said, Look, I’m not asking to put the home’s end to end two inches, I’m asking for the external setbacks to be two inches, and I had to measure every single lot and take pictures of Look, this is a lot number one, it’s two inches. This is lot number three, it’s eight inches, and so on, and go through the city process in order to get a variance.

And I was able to prove, look, this is a really tough hardship for me, I can’t reuse these lots due to the, frankly the market of selling mobile homes. But also there’s the common size mobile home today. So it was a big problem. And I didn’t create it. And if you enforce the setbacks against me, you know, like you do all other similarly situated property owners like the mobile home park, literally directly across the street. They don’t have the same perimeter problems, I’m going to be up a creek, right? They’re going to have me, they’re going to be smoking me on home sale. So anyway, I found a city zoning administrator that was amenable to that request. But that is a good instance of when you should get variance from an area variance. But again, they’re pretty rare. They’re supposed to be rare. And it’s just another way to try to maximize and utilize your property in the face of, you know, a code restriction that you can’t comply with. Till next time, God bless.

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