Variance for cell tower pokes a hole in Columbia’s height ordinance

Boards of adjustment can grant variances from zoning ordinances. But why should they?

What purpose is served by a government agency playing favorites?

The Missouri court of appeals affirmed the Columbia board of adjustment’s decision to allow Sprint to erect a 95-foot cell tower, disguised as a flagless pole, in a zoning district where structures taller than 41 feet were prohibited.

The court’s decision, The Highlands Homes Association v. Board of Adjustment, dated December 22, 2009, looked at the board of adjustment’s consideration “practical difficulties” faced by Sprint in finding a suitable tower location, and held that the board did not abuse its discretion in granting the variance.

The Missouri statute for variances allows board of adjustment to grant variances:

where there are practical difficulties or unnecessary hardship in the way of carrying out the strict letter of such ordinance, to vary or modify the application of any of the regulations or provisions of such ordinance relating to the construction or alteration of buildings or structures or the use of land so that the spirit of the ordinance shall be observed, public safety and welfare secured and substantial justice done

The court discussed variances generally, noting that there are zoning variances of two types:

• use variances, which allow property to be used in a way prohibited by the strict terms of an ordinance
• non-use variances, which allow a property owner to use a property for a permitted use, but deviating from the restrictions for that use, such as allowing a building to be taller or closer to a lot line than permitted by ordinance.

Missouri courts, in a series of decisions, have applied the requirement of a showing “practical difficulties” to apply to non-use variances, while the requirement of proof of “unnecessary hardship” in necessary for the grant of a use variance, so that self-created problems will not suffice.

The adjoining landowners argued that the applicant must show that the property cannot be used for any permitted use to justify a variance. But the court agreed with Sprint that a cell tower was a permitted use of this commercially-zoned property.

The court discussed four factors that other courts have used to determine whether a board of adjustment should issue a non-use variance:

1. How substantial the requested variance is.  Sprint sought to erect a slender pole, not a skyscraper.
2. Whether the grant of the variance would change the neighborhood or be a detriment to surrounding properties. While the neighboring (across an arterial street) residents claimed their properties would be devalued, a real estate appraiser testified there would be no effect, and that other permitted commercial uses of the property could be much worse, without a variance being required.
3. Whether the applicant had feasible alternatives. The opponents said that Sprint could seek a rezoning. Without discussing whether Columbia had any zoning districts where 95-foot towers were permitted, the court said that no variance could ever be granted if this alternative of rezoning were viable.
4. Whether justice will be served in granting the variance. This vague and high-sounding catch-all is where the court summed up the  reasons for its decision:

The Board considered that cellular phone usage in Columbia was ever-increasing; that the area near the proposed tower had a gap in reliable service; that not only Sprint, but also Verizon was planning to use the proposed tower to provide cellular service to Columbia customers; that the requested variance was the least amount needed to provide adequate service to nearby properties; that the tower was not predicted to impact the value of neighboring homes negatively; and that the proposed tower would not present a health risk to neighboring residents.

This decision shows that the purpose of zoning variances is to give boards of adjustment the discretion, based a weighing of economic advantages against claims of local harm, to allow otherwise prohibited uses of property.