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43. Should the variance be granted?
Subsequently, the man was diagnosed with a chronic debilitating disease. He told his daughter that he might have to sell his home, go to a nursing home, and after exhausting his assets paying for nursing home care, go on Medicaid for the rest of his life. His daughter offered to take care of him for the rest of his life if he would build her a small home on the westerly portion of his land. The man agreed, but because there was no way to site a home on the westerly portion of the land so that it was surrounded by two acres of vacant land, he applied to the local zoning board for a variance.
A developer conveyed a three-acre tract of land to a man by a warranty deed containing a covenant specifying that the land could be used for residential purposes only. The applicable zoning law required that any home in the community be surrounded by at least two acres of vacant land. The man built a home on the land that fully complied with the zoning law and moved into it.
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A is incorrect. The fact that the land is used for residential purposes is irrelevant. An area variance may be granted in the residential setting if unnecessary hardship would result from strict application of the ordinance; the hardship results from conditions peculiar to the property; and the hardship is NOT self-created. Here, the hardship was self-created by the man's choice of location for his home.
C is incorrect. The fact that the deed contained a covenant noting that the land can be used only for residential purposes is irrelevant. The applicable zoning law allows residential use but limits it by requiring that a certain amount of vacant land surround any home.
D is incorrect. The owner's personal hardship is relevant but not outcome determinative. An area variance can be granted if the owner suffers a hardship, but he may not take advantage of a hardship he created.