102 Iowa L. Rev. Online 365 (2018)
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Abstract
Zoning in America attained its 100th year in 2016, but no celebration was observed. From the very beginning the authority of zoning authorities to grant variances to accommodate exceptional circumstances faced by land owners on the ground has been a key part of the zoning system. For many years, local citizen Boards of Adjustment readily granted variances for many types of problematic land uses in zoning districts where they were not permitted under applicable zoning regulations. When it became widely accepted that granting too many use variances threatened the very integrity of the zoning system, state courts almost uniformly tightened up the rules for granting variances. State after state adopted New York’s interpretation of the omnipresent “unnecessary hardship” requirement of the typical zoning ordinance to insist that variances could only be granted if the landowner could prove there was “no reasonable use or no reasonable return possible” under the applicable zoning restrictions. As use variances receded dramatically after this judicial ratcheting up variance requirements, a different type of variance came to the fore–the area variance, which required only the relaxation of one or more technical or dimensional requirements affecting the site of a proposed development. In the beginning, in the absence of statutory language dealing separately with area variances, most state courts subjected them to the same rigorous requirements as use variances. Over time through legislative intervention or judicial recognition that area variances did not pose the same danger to the zoning system as use variances, nearly one-half of the states came to accord area variances some version of a “practical difficulty” standard of review. Iowa is among the states that do not differentiate between use variances and area variances, and Iowa law still applies the strict interpretation of the “unnecessary hardship” standard to area variances. This article argues that Iowa law should be reformed to adopt the less demanding “practical difficulties” standard for area variances, and presents proposals for achieving this result through both judicial reform and legislative change.