Land Use Zoning Variance In South Dakota

In addressing the reasonable return of property, one court determined that neither depreciated value nor financial loss is an appropriate indicator in a variance case: It does not appear from the record that the subject area is unfit for a conforming use, although such use may not be as inviting and the lots as desirable as some other lots in the use district. However, such depreciated value does not fall within the class of peculiar and exceptional circumstances necessary to sustain the granting of a use variance. If so, other property owners desiring to sell their property in a use zone at a premium for nonconforming purposes would frequently seek use variances, the granting of which would tend to destroy or greatly impair the whole system of zoning. Brock v. Bd of Zoning Adj, 571 So. 2d 1183, 1185 (AlaCivApp 1990). Furthermore, evidence of the "best use" of the property is "entitled to little or no weight in a variance case." Bd of Zoning Adj v. Dauphin Upham Joint Venture, 688 So. 2d 823, 825 (AlaCivApp 1996). The applicant's own economic situation is also an improper basis for establishing unnecessary hardship. City of Madison, 288 N.W.2d at 314 (stating that "economic disadvantages ... do not constitute 'unnecessary hardship.'"). In a similar case, In re Appeal of McClure, 415 Pa. 285, 203 A.2d 534, 535 (Pa 1964), a variance was granted to construct a bank in an area zoned for single-family residences. The board concluded, on two occasions, that the land was not suitable for residential use. In reversing the board, the McClure court determined: Such finding that the land was not suitable for residential use does not ... command the grant of a variance, even if the public interest would not thereby be adversely affected. As a general rule, if the land, as a practical matter, cannot be utilized for residential purposes, then the land should be rezoned by an appeal to the legislative body. Such rezoning cannot and must not be accomplished under the guise of a variance. 203 A.2d at 537. See also Graziano, 323 N.W.2d at 237 (stating "the board cannot alter the zoning ordinances by granting variances ... . the power to change the zoning restrictions belongs to the zoning commission and the city council."). A variance can not be used as a pretense to change or modify a zoning ordinance; only the governing body has the power to do that. City of Madison, 288 N.W.2d at 314.