Commons v. Westwood Zoning Board
of Adjustment
• 4 basic ways of putting flexibility into Euclidean
zoning:
–
–
–
–
Variance
Special exception
Zone change
Continuation of nonconforming uses
• Commons v. Westwood involves a request for a
variance from the
– area requirement (min. of 7500 sq. ft. to build [vs. 5190 sq.
ft.])
– Minimum frontage requirement [75’ requirement for 30 foot
lot]
1
Donald J. Weidner
Commons v. Westwood Zoning Board
of Adjustment, con’t.
• Recall SSZEA §7 provides that a Board of
Adjustment may be appointed to (inter alia)
grant variances:
– “where, owing to special conditions, a literal
enforcement…will result in unnecessary hardship”
PROVIDED
– The variance “will not be contrary to the public
interest” [what Commons v. Westwood calls “the
negative criteria].
2
Donald J. Weidner
Commons v. Westwood Zoning Board
of Adjustment con’t.
Property in Q was a vacant lot – the only undeveloped
property in the neighborhood. (Neighborhood has one
and two-family dwellings.) Π’s and their predecessors in
the title have owned the property since 1927. The
ordinance was adopted in 1933, with no minimum
frontage or minimum area requirements. In 1947, an
amendment to the ordinance adopted minimum frontage
and minimum area requirements. Fewer than 25% of
the homes in the area satisfied the new minimum
frontage requirement. In over 30 years, only 2 more
homes have been built, one of them not meeting the
minimum frontage requirement.
3
Donald J. Weidner
Commons v. Westwood Zoning Board
of Adjustment con’t.
Zoning: the minimum frontage to build is 75 feet. The
lot in question is only 30 feet wide. Π wants to put up a
house that is 19 feet wide.
Q: Why did the neighbors appose the Π’s application for
a variance?
– House on a 30 foot lot would be aesthetically displeasing;
– Proposed house would differ from scheme because garage
would be in front;
– Proposed house would impair the value of property in the
are;
– Concern about privacy – spillover effects – noise and
trespassing.
4
Donald J. Weidner
Commons v. Westwood Zoning Board
of Adjustment con’t.
• Q: What legitimate goals are being served (in the
eyes of the neighbors?)
• Q: Why did the court reverse the denial of the
variance/
– Unnecessary hardship
– The negative criteria
Undue Hardship
• Q: The test for “undue hardship?”
– “When the regulation renders the property unusable for any
purpose, the analysis calls for further inquiries which may
lead to a conclusion that the property owner would suffer an
undue hardship.”
5
Donald J. Weidner
Commons v. Westwood Zoning Board
of Adjustment con’t.
• Q: So, only if the property is “unusable for any
purpose,” do you look further?
• If you look further, look to:
– The origin of the existing situation. Was the hardship selfinflicted? Ex: Did the owner of a conforming lot convey
away a portion of that lot leaving herself with a
nonconforming lot?
– Has the owner attempted to bring the lot into compliance or
end the unusability? In this case:
the owner could have offered to buy additional properties
from the neighbors; or
The owner could have offered to sell some of the land (or all of
the land) to the neighbors.
6
Donald J. Weidner
Commons v. Westwood Zoning Board
of Adjustment con’t.
The Negative Criteria
• Assume that the test is the one in SSZEA:
– The variance cannot be issued if it would be
“contrary to the public interest.”
• Q: Who is the public?
7
Donald J. Weidner
Commons v. Westwood Zoning Board
of Adjustment con’t.
Avoid a Taking
• Complete denial of use,
BUT
• Variance would be contrary to public interest.

• Taking if denial.
8
Donald J. Weidner
Commons v. Westwood Zoning Board
of Adjustment con’t.
• Ct. suggests possible remedy:
– Deny the variance on the condition that the
neighbors purchase the land for a fair price.
[The restrictive covenant and Spur solution].
• Q: How do you determine price?
– “on the assumption that the variance has
been granted.”
• Recall Nectow.
9
Donald J. Weidner
Commons v. Westwood Zoning Board
of Adjustment con’t.
• Reviewing the decisions of Board of
Adjustment:
– Undue hardship?
• Record does not support conclusion of no evidence of
undue hardship.
– Negative criteria?
• Not sufficient for Board to issue “the conclusive statement
that the variance would substantially impair the intent and
purpose of the zone plan and ordinance.”
– Board must explain reasons for this conclusion.
10
Donald J. Weidner
Commons v. Westwood Zoning Board
of Adjustment con’t.
• Note: size of the resulting house “in and
of itself would not justify a denial of a
variance.”
– No health goal
– No safety goal
• Possibly: If character of neighborhood
was affected both as to aesthetics and
value, then a denial may be appropriate.
11
Donald J. Weidner