This case involved a variance from an ordinance that requires all fences or walls to be set back 25’ from the front/street lot line unless they are less than 3 feet tall or “see through.”
At issue were portions of a side fence consisting of 6’ stockade fencing. The applicants/owners originally wanted this fence to extend to 1’ from the road, but after seeing negative staff reports, they used permissible iron fencing along the side. However, it was not clear that the permitted fencing actually met the 25’ setback. The Board of Adjustment denied the application, finding that the requested variance did not meet the published criteria. The owners appealed to the County Commission under a “de novo” appeal provision. The Commission granted the variance, but also found it unnecessary despite the evidence that showed a 6’ stockade fence within 25’ of the front property line. The circuit court upheld this decision, finding and upholding the Commission on the basis that it could find that the variance was not necessary, and paradoxically therefore, could be granted.
The Fifth District reversed, finding that the Board of Adjustment applied the right law, and that the County Commission and circuit court did not. While the District Court did not say so, it clearly viewed the Commission’s action as an impermissible attempt to rewrite the zoning regulation through interpretation. The Fifth District stated:
We believe that the methodology utilized by the Board and approved by the circuit court of granting a variance in violation of the Code provisions yet concurrently concluding that the variance is not necessary is wrong, and its use needs to stop. Otherwise, others will be encouraged to employ the same or similar methods to work their will without regard to applicable laws and ordinances. Such methods not only disregard valid laws, they deprive others living in the neighborhood and surrounding areas of the valid application of ordinances that ensure the landscape of the neighborhood is kept in conformity with orderly growth and development.
The District Court recognized what the circuit court did not: that the County Commission was using the variance appeal process to simply reinterpret the code and apply it as it saw fit to individual cases. The Commission clearly thought that the established setback requirement was somehow unreasonable under the circumstances, so refused to enforce it – and refused to apply the published variance criteria. The District Court correctly found this process to be the application of the wrong law and a miscarriage of justice.