2211 CHESTNUT ST 2016-01-01 MF Import

I - '�� � ,� LARRY CALLAHAN, Planning Department WALT�R SLLL�RS, Assistant City Attorney�� „�„ .-,�;��j ,,>`. o^" Novembcr 2, 1970 suu�cc* Varianee applieation of a purehaser ��'�� or i�.i ��ir� i��.*r �•+��•�-��-'� of a lot subdivi�.�d below the minimum area�rir dimensions required by the zoning code. You have inquired as to �vhether the I3oard of Lldjustment has jurisdiction to consider a variance application suUmitted Uy the purchaser of a lot which was subdivided Uy the seller contrary to the area and dimension requirements of tl�e zoning code. Section 15. 04. 370 of the City of Pverett Zoning Code grants jurisdiction to the I3oard of Adjustment to grant variances only where literal enforcement of the requirements of the zoning code would cause undue and unnecessary hardship. Where the peculiar cir- cumstances wltich render the �roperty incapable of Ueing used in accordance with the restrictions contained in the ordinance have been themselves caused or created by the _ property owner or his predecessor in title, the essential Uasis of a variance, i. e. , that hardship be caused solely through the manner of operation of the ordinance upon the particular property, is lacking. In such a case, a variance will not be granted; the hardship, arising as a reault of the act ot the owner or his predecessor will be regarded as having been self-created Uarring relief. See Rathkopf, The Law of Zoning and Planning, Chapter 40 Section i. Under the better reasoned view, a purchaser wlto buys tvith knowledge of the zoning code comes within the application of the above-atated rule. See Shiverdecker v. . Zoning 13oard of Adjustment, 351 SW 2d d3 (1�61) Missouri Appeals. Only in the State of New York, where the self-created hardship rule does not apply ge..�rally to area variances, have the courts offered relief to a purchaser oY a substandard lot. Other states have not limited the application of the self-created hardahip rule, See Anderaor American Law of Zoning, Section 14, 54. Impoeition of the self-created hardship rule is supported by Section 15, 04, 050 of the City of �verett's Zoning Code which prohibits subdivision below the minimum required area or dimension spelled out in the zoning code, This section of the zoning code becomea meaninglesa if the I3oard of Adjustment considers variances for property suUdivided after the effective date of the zoning code. It is-my conclusion tl�at the courts of the State of Washington would apply the self-created hardship rule and that the purchaser would be charged with constructivc knowledge of the zoning requirement. 1 would recommcnd that the hoard deny jurisdiction because the requirement of legal hardsl:ip is lacking.