The Court of Appeal Affirms Once Again High Legal Standard Required for Variances

by William W. Abbott and Robert T. Yamachika

Stolman v. City of Los Angeles (2003) 114 Cal.App.4th 916, reaffirms the California rule that the granting of a variance, even in a charter city, is the exception rather than the rule. The case involves a longstanding non-conforming use; a gas station located in a residential neighborhood. The station had been at the location in question since 1922. It became non-conforming in 1925 when the area was zoned and annexed to the City of Los Angeles.

The station operator sought to increase his revenues by adding automobile detailing. This was viewed as a commercial expansion of a non-conforming use. For this purpose, under the City code, the operator applied for a variance. The variance was granted by the zoning administrator, and affirmed by all appellate bodies including the City Council. Dissatisfied with the grant, a neighbor filed a writ seeking to set aside the variance.

Similar to other city's local ordinances addressing variances, the City code established a series of five findings which had to be made before the granting of a variance. The required findings are not specified by state statute, but vary from jurisdiction to jurisdiction. Common to nearly all such ordinances is a determination of hardship. The objecting neighbor successfully challenged the variance on the basis that there was a lack of sufficient evidence for two of the five required findings: (1) that the strict application of the ordinance would result in practical difficulties or unnecessary hardships, and (2) that granting of the variance was necessary to enjoy a right or privilege generally possessed by other property in the same zone and vicinity. As to the first of these challenged findings, the appellate court found that the station operator's claim of financial hardship was unsubstantiated, and that nothing in the record justified an expansion of the use. Generalized discussions of economic need are insufficient. Similarly, the appellate court found that the record was silent as to other properties in the same zone and vicinity. The evidence, which in this type of case is limited to the administrative record, pertained at best to other zoning districts and other areas of the city. None of the evidence pertained to the vicinity but dealt with other properties in the same zoning classification but located across the city.

What's the lesson? First, variances are subject to close scrutiny if legally challenged. Second, the burden is on the applicant to make the record. If relevant evidence exists to support the findings for a variance (or any other administrative permit), the onus is primarily on the applicant to produce that evidence for the administrative record. Obviously, agency staff is critical in identifying and assembling evidence on factual matters that are based upon other land use decisions granted by the agency. If the applicant desires to make his or her case based upon economics, the claim must be supported by financial data in order to be sufficient. "Trust me, this is true" does not meet the substantial evidence test.

William W. Abbott is a partner and Robert T. Yamachika is an associate with Abbott & Kindermann, LLP in Sacramento. For questions relating to this article or any other California land use, environmental and planning issues contact Abbott & Kindermann at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

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