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Click here for the full text of this decision FACTS:In January 1999, Austin adopted an urban renewal plan. The plan targeted property along two blocks in East Austin for town home development. Originally, there were to have been between 30 and 36 new town homes built for low-income families; later, however, the number of town homes was reduced to between 10 and 20. The property was already zoned for both commercial and residential uses, and both had to comply with lot-size restrictions. In November 2001, the local Neighborhood Housing and Community Development agency appeared before the city’s board of adjustment to request a variance from the zoning requirements. The agency sought to decrease the minimum lot width, the minimum lot square footage, the minimum site area and the minimum side street setback. The variances were needed, the agency said, for several reasons: the lots were irregularly shaped, and there were several topographical restraints, such as large trees and steep slopes, and a home within the area was a designated historical site. Without a variance, the lots could not be developed in accordance with the directive of the urban renewal plan. Richard Ferris, who owned a 16-unit apartment building near the neighborhood, testified to the board against allowing the variance. He said the neighborhood was in more need of services, such as a grocery store or laundromat, than it was in need of more homes. The board granted the variances, finding the existence of a hardship on the city as developers if the variances were not granted. Ferris appealed to a district court, which upheld the board. He appeals again. HOLDING:Affirmed. In granting a variance, the court confirms that the board must make certain findings of fact: 1. the restrictions in the current zoning ordinance do not allow for a reasonable use of property; 2. the hardship necessitating the variance is unique to the property and not generally characteristic of the area; and 3. development under the variance will not impair or alter the use or character of adjacent property or clash with the underlying purposes of the zoning restrictions. Ferris complains that the board abused its discretion in finding a hardship, for one because the city cannot get relief from a self-imposed hardship. He says that the property was compatible with some residential development, just not to the degree or density that the city wanted. By burdening the property with more town homes than it could support, the city was imposing the hardship on itself, he argues. The city responds that it is not overburdening the property; that without the variances it could make no use of the property whatsoever since the lots did not meet the area requirements for commercial development. The court rules that where, though no fault of the owner, lots are configured in such a way as to make them incompatible with zoning laws and the strict application of those zoning laws would deny the property owner reasonable use of the property, the board has the authority to grant a variance from the zoning restrictions. Here, there is no evidence that the city was the original developer of the property or that it was responsible for subdividing the lots into their present irregular shapes. Absent evidence that the substandard lot configuration was the product of deliberate conduct of the city, its hardship was not self-imposed. Ferris also argues that the city’s economic reasons for wanting the variance did not create a hardship, either. He points to testimony from the agency about the economic reasoning behind the choice of how many lots to develop and how many town homes to build. Though Ferris is correct in asserting that a hardship cannot be established by a financial-only reason, the court finds that in this case, the board’s decision was supported by non-economic evidence: the existing lot sizes and shapes, and the presence of the historic home, for example. Ferris’ third challenge to the finding of hardship is that there is no nexus between the requested variance and the hardship claimed. He argues that the city’s remedy was to re-subdivide the property, not to get a variance. The court, however, agrees with the city that the only issue before the board was the propriety of the requested variances. The board’s decision was proper because there was evidence that strict application of the commercial and residential zoning restrictions would deprive the city of the reasonable use of its property. “Once the Board determined that a strict application of the area restrictions would deprive the City of reasonable use of the property, commercial or residential, then the City was free to make whatever residential use of the property it saw fit.” The court finally considers Ferris’ argument that the board has essentially rezoned the property through the variance procedure, thereby usurping the city council’s authority to set zoning rules. The court rejects Ferris’ contention that because no other property in the area had the same zoning designation as the city’s property, then the request for variance should have been denied. No case law supports Ferris’ position, though case law is clear that a variance is justified when a zoning restriction denies the property owner (the city) privileges that are afforded to other residential property owners in the area. OPINION:Puryear, J.; Law, C.J., Patterson and Puryear, JJ.

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