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Click here for the full text of this decision FACTS:Michael Solar wanted to build a swimming pool at his home in Piney Point Village. Due to the unusual topography of Solar’s lot, a pool contractor told Solar that decking, patios and trees would have to be destroyed if the pool was built in the backyard. The contractor was not sure if he could even build the pool in the backyard, but that if he could, it would be much more expensive. Because Piney Point Village’s zoning code requires two side yards on each lot and requires that pools be at least 10 feet from the nearest lot line, Solar applied for a variance allowing him to build the pool in the side yard. At a hearing, Solar presented evidence of the problem with building the pool in the backyard; that upon learning of his application for a variance, none of Solar’s neighbors opposed him; that one of the zoning board members inspected the lot and agreed that it was problematic; and that the extra cost of building the pool in the backyard was prohibitive. The board denied the variance without giving a reason. On appeal to the trial court, the board still did not explain its ruling. The trial court granted Solar’s motion for summary judgment and denied the board’s. HOLDING:Affirmed. The court agrees with the board that a financial hardship does not constitute an unnecessary hardship sufficient to support a variance request. However, the court points out that the undisputed evidence shows that, because of the lot’s physical characteristics, it may not be possible to build a pool at all, and if it is possible, the destruction of the trees and structures, plus the cost, would prevent Solar from building a pool. “Therefore, without the variance, Solar and his family will be deprived of the ability to swim on their property. That is not a financial hardship but a loss of the right to recreate, which we conclude constitutes an unnecessary hardship.” Though the board argues that there is no right to a residential variance unless failure to grant one means the property cannot be used as a residence, the court says that the cases cited in support of the board’s position are all commercial cases where the variance is requested so that the business can earn a higher profit. The court finds application of the board’s interpretation would result in the board not having to grant a variance for any reason, so long as the property owner was able to construct some minimally habitable residence. The court clarifies, however, that it is not holding that the board � or other similar boards in the state � must grant every variance request to build a swimming pool. Only that in instances like these � where there is no evidence of harm to any interest and the undisputed evidence shows that failure to grant the request will deprive the property owners of the ability to swim on their property � it is an abuse of discretion to deny the variance. OPINION:Yates, J.; Yates, Anderson and Hudson, JJ.

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