January 30, 2018
Through the course of our representation of clients, they often encounter zoning codes which are outdated and properties that are non-conforming, often in vibrant flourishing neighborhoods. This was the case for one client, who desired to seek a use variance for a property in Evanston, a stone’s throw from the burgeoning Walnut Hills neighborhood.
In this case, the clients desired to purchase a block construction building that was zoned Residential Mixed Use and convert the same into an artisanal cheese making facility and retail store/tasting room. This building had previously been operated as a medical building and was constructed prior to implementation of the current Zoning Code. As a result, an 8,334 square foot block building sat vacant and unused, a blight to its community because of zoning that relegated it to Residential Mixed Use. As a result, we were retained to pursue a use variance on their behalf and assist them in their endeavors to “put Cincinnati cheese on the map and to begin that dream in the Evanston neighborhood.”
Variances under Cincinnati Municipal Code
Under §1445-15 of the Cincinnati Zoning Code a variance from the requirements of the Cincinnati Zoning Code can be granted, provided the condition giving rise to the request for the variance was not created by the current or prior owner. In addition, a variance can be granted owing to special conditions affecting the property, where application of the Zoning Code would be unreasonable and result in practical difficulties. Finally, consideration is given as to whether the variance is necessary for the preservation and enjoyment of a substantial property right of the applicant possessed by owners of neighboring properties.
Showing of unnecessary hardship
In addition to these factors, under §1445-16 of the Code, no variance can be granted unless the applicant demonstrates it will suffer unnecessary hardship if strict compliance with the terms of the Code is required. Hardship is demonstrated by the following factors: (a) the property cannot be put to any economically viable use under any of the permitted uses in the zoning district; (b) the variance requested stems from a condition that is unique to the property at issue and not ordinarily found in the same zone or district; (c) the hardship condition is not created by actions of the applicant; (d) the granting of the variance will not adversely affect the rights of adjacent property owners or residents; (e) the granting of the variance will not adversely affect the community character, public health, safety or general welfare; (f) the variance will be consistent with the general spirit and intent of the Zoning Code; and (g) the variance sought is the minimum that will afford relief to the applicant.
“In The Public Interest”
Finally, in order to obtain a use variance, an applicant must show the proposed variance “is in the public interest.” The factors considered under §1445-13 of the Code include: present zoning, community guidelines and plans, existing traffic, buffering, landscaping, hours of operation, neighborhood compatibility, proposed zoning amendments, consideration of adverse effects, the elimination of blight, economic benefit, job creation, effect upon tax valuations, and private and public benefits.
The wasted potential of a long-vacant property
In our clients zoning matter, an existing structure which did not conform to the Code had sat vacant for five years or more. The zoning needs of the Property were unique to it and the hardship had not been created by the owner of the Property. Its impact on the immediate neighborhood as a vacant and blighted building were adverse, contributing nothing to the neighborhood, and detracting greatly from the same.
Making a difference for our client
Our clients were able to obtain a use variance and now that vacant building has been transformed into a cheese making facility and retail store/tasting room that will further transform this already bustling community.
Read more about their story here.