Columns from The Union 04/2001

Nevada City: Rule of Law or Rule of Variance?
Published Saturday, April 14, 2001

The City Council of Nevada City has agreed to impose a 45-day moratorium on residential variances. This is a good idea, because it may be that the process of granting variances has gotten out of hand.

There have been about 67 variances issued in the last 12 years. It doesn't sound like a lot, until you look at three things: 1) Nevada City has a satisfactory general plan and zoning regulations; 2) The town has a population of only about 2000 and significantly fewer parcels; 3) A number of variances have been requested by developers.

I always thought a variance was something Joe or Jane Neighbor asked for in order to replace a tumbledown garage, and rebuild one foot closer to the property line. Or maybe to extend a front porch.

Apparently, it's not. When variances include gratuitous lot splits or requests to build 5000 square foot mini-mansions, something is wrong.

But what about property rights? Why shouldn't we be able to do what we want with our land and home? Well, no one doubts that America values property rights. I'm sure those rights are deeply rooted in English common law, and are absolutely essential to how we live and how we do business.

Some countries like Russia have no property rights tradition, and are playing catch-up as they attempt to build 21st century market economies. True, there are bands of gatherers in the Amazon basin who share all personal property and have no concept of land ownership, but they are "primitives" and aren't a good model for us.

We have property rights, but they aren't absolute. They are limited. Here's what I mean:

If you live in civilized society, you must pay taxes or tithes to the baron, the church, or the government. If you don't, you'll lose your land. Even if you pay your taxes, the government can condemn and seize your property (after paying you fair market value) and put a road through it.

At various times, you had no property rights if you were a commoner, a non-white man, or a woman.

Modern limits on property rights come in the form of your city's general plan and zoning ordinance. These documents are theoretically crafted by voters through their government, so they are supposed to be self-imposed limits. It's a formal way of saying, "I won't build a slaughterhouse next to your home if you won't build one next to mine."

With a good general plan and a good zoning ordinance, variances should be rare. Here's what one city (Beverly Hills) says about variances:

"Variances ... may be granted in the discretion of the granting authority provided:

"a) Because of special circumstances applicable to the subject property, including size, shape, topography, location, or surroundings, the strict application of the provisions of this Chapter is found to deprive the subject property of privileges enjoyed by other properties in the vicinity and under identical zone classification; and

"b) Any variance granted shall be subject to such conditions as will assure that the adjustment thereby authorized shall not constitute a grant of special privileges in the vicinity and zone in which the subject property is situated."

A Nevada City ordinance (1620, I believe) reflects the "no grant of special privilege" language. I hope Nevada City also has some "deprive the subject property of privileges" language, too. These level the playing field.

So let's be careful about variances that tilt the playing field. After all, rules are rules. I can't drive my car 100 mph, and ask the judge for a variance, or go into the store and ask for a variance on paying.

Being on the Nevada City Planning Commission is a tough job. Commissioners can't really know if applicants are honest. Generally, they can't legislate good taste in design. And they mustn't paint all developers with the same brush. The best they can do is ensure compliance with the law and grant an occasional variance.

The toughest part of the job, however, is their knowing that every decision they make can affect the quality of life for all city residents, the feel of the neighborhoods, the city's attractiveness to tourists, and the patterns of traffic. Nevada City has a quality that much of America is trying to rediscover. They are protecting the city's "magic" from predators and quick-buck artists.

I wouldn't trade jobs with them for a million bucks and a variance.

Barry Schoenborn is a technical writer, and a 12-year resident of Nevada County. His column appears the second Saturday of the month. barry@wvswrite.com is his e-mail address. The opinions of columnists are not necessarily those of The Union.

Back