Matthew v. Smith

707 S.W.2d 411 (Mo. 1986)

Facts & Procedural History

The Brandts owned a tract of land comprising one-and-a-half plotted lots.  There were already two houses on the land when they purchased the property, one toward the front of the street and one in the rear, each occupied by a family as tenants of the Brandts.  The houses were used as separate residences for the previous 30 years, with only intermittent vacancies.  The property was zoned for single family residences.  The Brandts applied for a variance which would allow them to rent both houses with a single family in each house.  A neighboring landowner challenged the board of adjustment’s initial grant of the variance.  The circuit court affirmed the board’s order, which the court of appeals then reversed, holding that the board was without authority to grant the variance.


Did the board have authority to grant a use variance?

Holding / Rule

No.  Reversed and remanded.  To be entitled to a use variance, an applicant must demonstrate unnecessary hardship in complying with the zoning ordinance; to obtain an area variance, an applicant must establish the existence of conditions slightly less rigorous than unnecessary hardship.  Unnecessary hardship exists when the landowner provides dollars and cents proof that the property cannot yield a reasonable return without the variance.


The difference in standards for use and non-use or area variances is justified because an area variance only relaxes one or more incidental limitations to a permitted use and does not alter the character of the zoning district as much as an otherwise prohibited use would.  When determining whether unnecessary hardship exists, a board, in addition to considering whether the property in question can yield a reasonable return if used only for a purpose permitted in that zone, should consider whether the plight of the owner is due to unique circumstances and not to the general conditions in the neighborhood (which may reflect the unreasonableness of the zoning ordinance itself) and whether the use authorized by the variance would alter the essential character of the locality.  The record here is insufficient to establish unnecessary hardship—it consists only of Brandt’s conclusory opinion that they would be deprived of a reasonable return if they cannot rent both houses.  They were deprived an opportunity to introduce hard financial proof that they would be deprived of all beneficial use of their property.

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