                   IN THE SUPREME COURT OF MISSISSIPPI

                               NO. 2009-CT-00981-SCT

SCOTT HARRISON AND MONA HARRISON

v.

MAYOR AND BOARD OF ALDERMAN OF THE
CITY OF BATESVILLE AND MEMPHIS STONE
& GRAVEL COMPANY

                             ON WRIT OF CERTIORARI

DATE OF JUDGMENT:                         05/13/2009
TRIAL JUDGE:                              HON. ANDREW C. BAKER
COURT FROM WHICH APPEALED:                PANOLA COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANTS:                 PAUL B. WATKINS, JR.
                                          POPE S. MALLETTE
ATTORNEYS FOR APPELLEES:                  BENJAMIN E. GRIFFITH
                                          DANIEL J. GRIFFITH
                                          MICHAEL S. CARR
                                          LAUREN WEBB CARR
                                          ROBERT T. JOLLY
                                          E. PATRICK LANCASTER
NATURE OF THE CASE:                       CIVIL - OTHER
DISPOSITION:                              REVERSED AND REMANDED -
                                          11/03/2011
MOTION FOR REHEARING FILED:
MANDATE ISSUED:




       EN BANC.

       LAMAR, JUSTICE, FOR THE COURT:

¶1.    In this certiorari case, we consider whether the Mayor and the Batesville Board of

Aldermen (collectively the “Board”) erred in granting a variance to allow mining in an area

zoned single-family residential and community business. The Mississippi Court of Appeals
found that it had and reversed and rendered. However, its opinion provided little discussion

of the applicable zoning ordinance governing variances. That ordinance allows the Board

to grant a variance due to “practical difficulties or unnecessary hardships.” While the

Batesville Code 1 does not define these terms, this language originated in the 1920s and is

used in other jurisdictions.2           While the law and judicial interpretations from other

jurisdictions do not bind us, they are helpful in cases where we have no precedent of our

own. Therefore, we look to those jurisdictions to aid us in deciding whether the Board

applied the correct legal standard and whether its decision to grant the variance is supported

by substantial evidence.

                                                   Facts

¶2.       Memphis Stone & Gravel Company submitted to the Board a variance request to mine

sand and gravel from eighteen acres3 leased from various property owners. This tract of land




          1
         We have used a copy of the Batesville Code attached as an exhibit to the Harrisons’
brief, as it is our understanding that this version was in effect at the time the variance was
granted. It was effective May 14, 1992. The Board does not contend that this is an incorrect
version.
          2
              Matthew v. Smith, 707 S.W.2d 411, 414 (Mo. 1986).
          3
              The entire leased tract is sixty-five acres, eighteen of which are in the Batesville city
limits.

                                                     2
is zoned single-family residential (R-1)4 and community business (C-2)5 and is contiguous

with Memphis Stone’s existing plant operation located in the county. Under the Batesville

Code, mining only can be a conditional (as opposed to permitted) use in areas zoned

agricultural and industrial.6

¶3.    In support of its zoning application, Memphis Stone attached maps of the area,

promotional materials for the company, and an operations narrative. The operations narrative

provided general information on the project and mining process and also provided the

following information:

       Based on national and local trends it takes approximately 10 tons of aggregate
       each year for new construction and to maintain our existing infrastructure. The




       4
         R-1 districts “are designed primarily to accommodate single-family detached
residential uses (other than mobile homes) at medium densities in areas served by public
water and sewer facilities. Two-family and multi-family residences are allowed in these
districts only in the context of planned residential developments.” Batesville, Miss., Code
§ 301(c).
       5
        C-2 districts are:
       designed to accommodate commercial development on a scale that is less
       intensive than that permitted in a C-1 district. A lesser intensity of
       development is achieved through setback, height and minimum lot size
       requirements that are more restrictive than those applicable to the C-1 district.
       The types of uses permissible in these districts are generally similar to the
       types permissible in a C-1 district, except that additional automobile-oriented
       businesses (e.g. drive-in banks and restaurants not allowed in the C-1 district
       are permissible in these districts). The C-2 thus may provide transition in
       some areas between a C-1 district and a residential district or may provide for
       a smaller scale shopping center that primarily serves one (1) neighborhood or
       area of the city (as opposed to a regional shopping center).

Batesville, Miss., Code § 302(c).
       6
           Batesville, Miss., Code § 401.

                                              3
       growth in Tate County [sic]7 demands a good source of local aggregate.
       Memphis Stone & Gravel Company believes this deposit will be an asset to the
       local economy and will likely be lost to future residential development if not
       managed as a resource for construction material.

¶4.    The variance request was first approved by the City of Batesville Planning

Commission.8 The Planning Commission’s minutes for May 19, 2008, reflect that:

       There next came on for consideration the variance request of Memphis Stone
       and Gravel, to have allowed the mining of sand and gravel in the R-1,
       Residential, and C-2, Commercial Zones. Alan Parks of Memphis Stone and
       Gravel gave a presentation concerning the property being leased from the
       Haire Family and Seale Family located on the west side of Hwy. 35, South.
       If the variance is allowed, the sand and gravel will be conveyored to the
       existing wash plant on Hwy. 35, South for processing.

The Planning Commission’s minutes also show that a motion to recommend approval of the

variance “carried unanimously.”

¶5.    Next, the Board held a public hearing on the variance request. The Board’s minutes

reflect that “Alan Parks and Bill Kelly of Memphis Stone & Gravel were present and spoke

in support of this request. Scott Harrison, Mona Harrison and Bill Joiner (residents in said

area) was [sic] present in opposition to the request.” Without any further discussion reflected

in the minutes, the Board voted to take the variance request under advisement until its next

regular meeting. The minutes of the next regular meeting reflect that:

       Alan Parks of Memphis Stone & Gravel was present and answered questions
       from the Board regarding said request. Scott Harrison (resident in said area)


       7
           The City of Batesville is located in Panola County, not Tate County.
       8
        The Batesville Code provides that the “board of appeals” has jurisdiction to grant a
variance, and from that decision an appeal is made to the mayor and board of aldermen, who
are to make “findings” after a “hearing.” Batesville, Miss., Code § 1205. No party makes
any reference to the board of appeals or asserts any error as to the procedure taken in this
appeal.

                                               4
       was present in opposition to the request . . . . it was ordered that the aforesaid
       request contained of Memphis Stone & Gravel for a variance for the mining
       and transportation of sand and gravel in a C-2, Commercial District, and an R-
       1, Single Family Residential District which request was approved by the City
       Planning Commission and which variance is necessary in order to avoid
       practical difficulties or unnecessary hardship on the use and development of
       said property be and it is hereby approved and said variance is hereby granted
       in said application.9

¶6.    Thereafter, at its next meeting, a Board member moved to rescind the variance grant,

but the motion failed. The member then moved to amend the order granting the variance so

that it would include various conditions. Before the Board finalized the conditions, it heard

from Paul Watkins, the Harrisons’ attorney. Watkins stated that the Board’s decision to grant

a variance would change the character of the land and constitute spot zoning, and that the

record before the Board contained no reason for its approval. He asserted that Memphis

Stone wanted the variance for financial gain and convenience, which are insufficient to show

practical difficulty or unnecessary hardship. Watkins also placed in the record a copy of a

letter that he previously had sent the Board. In his letter, Watkins argued the variance would

have a negative effect on surrounding property, cause a nuisance, and fail to provide any

additional employment or tax base for the City.

¶7.    The Board also heard from the president of Memphis Stone, who addressed only the

proposed conditions, one of which was reclamation of the land to its original state. The

president stated that reclamation to the original state was “impossible” since his company

would be “taking out 40 to 60 [feet] of material . . . there is no way . . . to meet the same

topography that is there now. I’m going to have to create a lake out there.” Ultimately, the



       9
           Emphasis added.

                                               5
Board upheld the variance with the following conditions: (1) a two-and-one-half-year time

limit with review every six months; (2) operations confined to weekdays from 7:00 a.m. to

5:00 p.m.; (3) the erection and construction of berms to screen the project from neighboring

property and the road; (4) the watering of objectionable dust; and (5) the imposition of fines

for any violations of the conditions.

¶8.    The Harrisons appealed the variance to the circuit court via a bill of exceptions in

compliance with Mississippi Code Section 11-51-75. By agreed order, Memphis Stone was

allowed to intervene in the appeal.10 The circuit court held a hearing and heard arguments

from the Harrisons, the Board, and Memphis Stone. The Harrisons argued that substantial

evidence did not support the Board’s decision, as Memphis Stone had failed to present any

evidence of hardship to the Board. The Harrisons argued that, in order to show hardship,

Memphis Stone must submit evidence that a unique condition of the property prevented it

from making full use of the land. The Harrisons argued that increased profitability and

convenience of location do not establish hardship.

¶9.    They also argued that the variance can be only a minor deviation from the applicable

zoning ordinances to be consistent with the spirit of those ordinances. The Harrisons argued

that the variance constituted a major change to the zoning ordinances that could be proper




       10
         Because the Harrisons agreed to allow Memphis Stone to intervene, we do not
address their argument that Memphis Stone should be dismissed as a party to this appeal
under our recent decision, City of Jackson v. United Water Servs., Inc., 47 So. 3d 1160,
1164-65 (Miss. 2010) (ruling that the circuit court was correct in denying a party’s motion
to intervene in an appeal under Mississippi Code Section 11-51-75, as no authority exists for
granting such a motion filed by a nonaggrieved party).

                                              6
only upon rezoning. Last, they argued that public need was not an appropriate factor for the

court to consider.

¶10.   In response, the Board argued that Memphis Stone had set forth in its operations

narrative that ten tons of aggregate is needed for construction and infrastructure and that

these minerals would be lost if the land was developed as currently zoned. It also argued that

the Board members had visited the existing mine operation in the county to see how it

operated and to determine how intrusive it would be if extended into the city.11 The Board

asserted that it had considered the size, character, and location of the land.

¶11.   Memphis Stone argued that, under the Batesville Code, it was not required to show

hardship.12 It asserted that it only had to show by a preponderance of evidence that it was

entitled to a variance. Memphis Stone also argued that, at the reclamation stage, it would fill

in the quarry and plant vegetation, and that, within five years or more, the land would be

“suitable for any use” and “any type of structures.” 13

¶12.   At the conclusion of the hearing, the court took the matter under advisement. It

subsequently issued a written order, in which it affirmed the Board’s decision to grant the

variance. It found the Batesville Code required proof of “practical difficulties or unnecessary

hardship” and that Memphis Stone had provided “ample evidence” to justify the variance.



       11
        This information was not included in the record (e.g., the bill of exceptions), and an
appellate court can review only evidence contained in the bill of exceptions. Nelson v. City
of Horn Lake ex. rel. Bd. of Aldermen, 968 So. 2d 938, 946-47(Miss. 2007).
       12
            Memphis Stone does not argue this on appeal.
       13
        This too was not included in the bill of exceptions, and in fact, directly contradicts
the evidence Memphis Stone presented to the Board.

                                              7
It noted that Memphis Stone had presented “evidence of a public need for a good source of

local aggregate and the project would be a good asset for the local community’s economy

that will likely be lost to future residential development based on the location of the

property.”

¶13.   Aggrieved by the trial court’s affirmance, the Harrisons appealed, and the case was

assigned to the Court of Appeals. Relying upon our decision, Drews v. City of Hattiesburg,14

the Court of Appeals reversed and rendered, finding the variance constituted a “classic case

of spot zoning.” 15 And “[n]otwithstanding that finding, [it went on to] determine whether

Memphis Stone proved that there was a public need or a compelling reason for the

variance.” 16 It concluded that the record lacked substantial evidence to support a finding of

public need or that the variance would be an asset to the local economy.17 It further found

that the record “lacks evidence of any ‘practical difficulty or unnecessary hardship’” without

any analysis or explanation of those terms.18 We granted certiorari to clarify the standards

that should apply when a zoning ordinance uses the language “practical difficulties or

unnecessary hardships” for granting a variance.




       14
            Drews v. City of Hattiesburg, 904 So. 2d 138 (Miss. 2005).
       15
       Harrison v. Mayor & Bd. of Alderman, No. 2009-CA-00981-COA, ¶ 11, 2010 WL
4188264 (Miss. Ct. App. Oct. 26, 2010).
       16
            Id.
       17
            Id. at ¶14.
       18
            Id. at ¶15.

                                              8
                                          Discussion

¶14.   A variance generally is defined as the “right to use or to build on land in a way

prohibited by strict application of a zoning ordinance.” 19 The grant or denial of a variance

is adjudicatory, rather than legislative.20 In reviewing adjudicatory decisions by zoning

boards, we have ruled that:

       the burden is upon the applicants to prove by a preponderance of evidence that
       they have met the elements/factors essential to obtaining the [requested relief].
       If the Board’s decision is founded upon substantial evidence, then its is
       binding upon an appellate court, i.e., the Circuit Court and this Court. This is
       the same standard of review which applies in appeals from decisions of other
       administrative agencies and boards.21

This Court will reverse only if the decision “1) is not supported by substantial evidence, 2)

is arbitrary or capricious, 3) is beyond the scope or power granted to the agency, or 4)

violates one’s constitutional rights.” 22 We review questions of law under a de novo

standard.23

I.     Whether the variance resulted in spot zoning.

¶15.   The Harrisons argue that the variance constitutes spot zoning, as it is a dramatic

departure from the current zoning ordinances and favors Memphis Stone to the exclusion of

the surrounding property owners. Spot zoning “is ordinarily used where a zoning ordinance


       19
       Gail Gudder, Rathkopf’s the Law of Zoning and Planning, § 58.1 (Thomson/West
Aug. 2006).
       20
            83 Am. Jur. 2d Zoning and Planning § 749 (Westlaw).
       21
            Barnes v. Bd. of Sup’rs, Desoto County, 553 So. 2d 508, 511 (Miss. 1989).
       22
            Sprouse v. Miss. Employment Sec. Comm’n, 639 So. 2d 901, 902 (Miss. 1994).
       23
            Drews v. City of Hattiesburg, 904 So. 2d 138, 140 (Miss. 2005).

                                              9
is amended reclassifying one or more tracts or lots for a use prohibited by the original zoning

ordinance and out of harmony therewith. Whether such an amendment will be held void

depends upon the circumstances of each case.” 24 But this definition is not applicable to a

variance. However, the Court of Appeals relied on Drews v. City of Hattiesburg, where this

Court found “spot zoning” after reviewing the grant of six variances to build a 60,000 square

foot medical office in an area originally developed for residential housing.25 In Drews, we

ultimately held the petitioners “failed to present any evidence” to support the six variances,

and that the City had “attempted to bypass the safeguards provided by the rezoning process

in that the need for a variance must be proven only by a preponderance of the evidence while

the need for rezoning must be proven by clear and convincing evidence.” 26 In other words,

this Court found the proposed variances were not “minor departures” from the applicable

zoning ordinances, and that these departures from use and area requirements could be

obtained only through rezoning and not a variance request.27 Therefore, we found the Board

acted beyond its scope or power when it granted the variances.28




       24
            McKibben v. City of Jackson, 193 So. 2d 741, 744 (Miss. 1967) (emphasis added).
       25
            Harrison, 2010 WL 4188264 *2-4 (citing Drews, 904 So. 2d at 141).
       26
            Drews, 904 So. 2d at 142 (emphasis added).
       27
            Id.
       28
            See id.

                                              10
¶16.   While this Court used the terminology “spot zoning” in the Drews opinion, we

expressly used the term rezoning in the holding.29 As noted in the learned treatise, Rathkopf’s

the Law of Zoning and Planning:

       The grant of a variance or special exception that has the same effect as a small
       parcel rezoning cannot be attacked as spot zoning. The distinction lies in the
       difference between the traditionally legislative process of amending a zoning
       ordinance and the administrative act of granting a variance or special
       exception. Neither of the latter two involve a zone change, but are permitted
       when certain conditions exist.30

¶17.   Therefore, the proper question is not whether the variance is “spot zoning” but

whether the Board acted within its scope and power under the applicable zoning ordinances.

Connected with that determination is whether substantial evidence supports the Board’s

decision to grant the variance.

II. Whether the Board erred in granting Memphis Stone’s variance request.

¶18.   The Legislature has provided “the governing authority of any municipality” with the

power to enact zoning regulations “for the purpose of promoting health, safety, morals, or

the general welfare of the community[.]” 31 As previously noted, the Board had zoned the


       29
            Id. at 141-42.
       30
      Edward H. Ziegler, Jr., Rathkopf’s the Law of Zoning and Planning, § 41.2 n.1
(Thomson/West Aug. 2006) (emphasis added).
       31
         Miss. Code Ann. § 17-1-3(1) (Rev. 2003). Section 17-1-3(1) provides:
       for the purpose of promoting health, safety, morals, or the general welfare of
       the community, the governing authority of any municipality . . . [is]
       empowered to regulate the height, number of stories and size of building and
       other structures, the percentage of lot that may be occupied, the size of the
       yards, courts and other open spaces, the density of population, and the location
       and use of buildings, structures and land for trade, industry, residence or other
       purposes . . . .
Id.

                                              11
land at issue as single-family residential and community commercial. But Memphis Stone

requested a variance to change the use of this zoned area. A “use” variance is one of two

types of variances:

       With a ‘use’ variance, the owner is allowed to engage in a use of the land
       prohibited by the zoning ordinance. With a ‘nonuse,’ or ‘area’ variance, the
       owner must comply with the zoning ordinance’s limitations on use of the land
       but is allowed to build or maintain physical improvements that deviate from
       the zoning ordinance’s nonuse limitations.32

¶19.   And this Court noted the distinction in Drews:

       Variances were conceived initially as a means for granting relief from height,
       bulk, and location restrictions in the ordinances which rendered use of the
       property impossible or impractical. No conceptual problems arise when the
       variance is granted to authorize minor departures from the terms of the
       ordinance; e.g. to permit a landowner to place the structure on his lot nearer
       the lot line than is permitted by the set-back or side-yard requirements. Such
       relief does not authorize a use inconsistent with the ordinance and,
       consequently, does not constitute rezoning under the guise of a variance . . . .

              On the other hand, serious questions arise when a variance is granted
       to permit a use otherwise prohibited by an ordinance; eg., a service station or
       a quick-stop grocery in a residential district. The most obvious danger is that
       the variance will be utilized to by-pass procedural safeguards required for
       valid amendment.33

¶20.   In reviewing the grant of a variance, we start with the governing zoning ordinances.

“A city must follow its ordinance when granting [a] variance to a zoning regulation.” 34 The



       32
       Gail Gudder, Rathkopf’s the Law of Zoning and Planning, § 58.4 (Thomson/West
Aug. 2006).
       33
       Drews v. City of Hattiesburg, 904 So. 2d 138, 141 (Miss. 2005) (citing Robert C.
Khayat & David L. Reynolds, Zoning Law in Mississippi, 45 Miss. L.J. 365, 383 (1974)).
       34
        Mary E. Miller, Encyclopedia of Mississippi Law New Topic Service, Variances and
Exceptions § 12 (2003) (citing Robinson v. Indianola Mun. Separate Sch. Dist., 467 So.
2d 911 (Miss. 1985)).

                                             12
Batesville Code defines “variance” as “[a] grant of permission . . . that authorizes the

recipient to do that which, according to the strict letter of this appendix, he could not

otherwise legally do.” 35 The Batesville Code also provides that the Board may “vary or

modify the application of any of the regulations or provisions of the ordinance where there

are practical difficulties or unnecessary hardships in the way of carrying out the strict letter

of this ordinance, so that the spirit of this ordinance shall be observed, public welfare and

safety secured and substantial justice done.” 36

¶21.   The Batesville Code provides no definition or guidelines for determining the meaning

of “practical difficulties or unnecessary hardships.” And neither the record nor the Board’s

decision provides any insight into what criteria it used to determine the meaning of these

terms. The Board simply stated that the “variance is necessary in order to avoid practical

difficulties or unnecessary hardship on the use and development of said property be [sic] and

it is hereby approved and said variance is hereby granted in said application.”

¶22.   While arguably the imposed conditions show the Board’s effort to comply with the

“spirit of the ordinance” so that “public welfare and safety secured and substantial justice

[be] done[,]” they fail to shed any light upon what “practical difficulties or unnecessary

hardships” existed, authorizing the Board to grant the variance. The Board merely provided

a conclusion with no findings of fact.37 As noted by another jurisdiction when reviewing a



       35
            Batesville, Miss., Code § 201.
       36
            Id. at § 1204 (emphasis added).
       37
       See Matter of Gilbert v. Stevens, 284 A.D. 1016, 1016, 135 N.Y.S.2d 357
(N.Y.A.D. 3 Dept. 1954).

                                              13
variance grant, “[f]indings of fact which show the actual grounds of a decision are necessary

for an intelligent review of a quasi-judicial or administrative determination.” 38 Similarly, in

Barnes v. Board of Supervisors, this Court ruled that Boards should make findings of fact

when granting or denying conditional use permits, which are also quasi-judicial decisions.39

¶23.   Although in Barnes we upheld the Board’s decision despite its failure to make

specific findings of fact, we did so because the record clearly supported the Board’s

decision.40 Here, the only “evidence” found in the record before this Court was contained

in Memphis Stone’s operations statement: (1) that ten tons of aggregate is needed each year

for new construction and to maintain existing infrastructure; (2) that it believes the deposit

will be an asset to the local economy; and (3) that the deposit would otherwise be lost to

future development.

¶24.   The Harrisons argue that this does not constitute evidence of hardship, and that

nothing in the record shows that the property is unsuitable for the purpose for which it is

zoned -- residential and light commercial use. They further argue that Memphis Stone failed

to show that it would suffer unusual hardship or difficulty greater than any other resident in

the city’s R-1 and C-2 districts. Conversely, the Board argues that it found the variance

would provide a good source of local aggregate and a benefit to the local economy. It also




       38
            Id.
       39
            Barnes v. Bd. of Supervisors, DeSoto County, 553 So. 2d 508, 511 (Miss. 1989).
       40
            Id.

                                              14
argues that its decision was based on its common knowledge of the land and familiarity with

the ordinance.41

¶25.   The language “practical difficulties” and “unnecessary hardships,” as well as other

aspects of the Batesville zoning ordinance, originated in a 1920 amendment to the General

City Law of New York and the Standard Zoning Act prepared by the Department of

Commerce in the 1920s.42 The 1920 amendment provided that:

       Where there are practical difficulties in the way of carrying out the strict letter
       of such ordinance, the board of zoning appeals shall have the power to vary or
       modify the application of any of the regulations or provisions of such
       ordinance relating to the use, 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.43

And the Standard Zoning Act provided that:

       To authorize upon appeal in specific cases such variance from the terms of the
       ordinance as will not be contrary to the public interest, where, owing to special
       conditions, a literal enforcement of the provisions of the ordinance will result
       in unnecessary hardship, and so that the spirit of the ordinance shall be
       observed and substantial justice done.44




       41
        While the Board may consider information based on its “common knowledge,” Bd.
of Aldermen of Town of Bay Springs v. Jenkins, 423 So. 2d 1323, 1327 (Miss. 1982), these
facts should be disclosed in the record. 83 Am. Jur. 2d, Zoning and Planning § 714
(Westlaw).
       42
            Matthew v. Smith, 707 S.W. 2d 411, 414 (Mo. 1986).
       43
            Id. (emphasis added).
       44
            Id. (emphasis added).

                                               15
¶26.   While some courts view the terms “practical difficulty” and “unnecessary hardship”

as interchangeable,45 other jurisdictions follow New York’s approach and hold that “practical

difficulty” applies to a nonuse or area variance while “unnecessary hardship” applies to a use

variance.46 Jurisdictions that distinguish the two terms among nonuse and use variances do

so because “an area variance is a relaxation of one or more incidental limitations to a

permitted use and does not alter the character of a district as much as a use not permitted by

the ordinance.” 47 Even those jurisdictions that construe “practical difficulties or unnecessary

hardships” together apply a more rigorous standard for proving a use variance.48 Likewise,

in Drews, we noted the “serious questions” that arise when a Board grants a use variance

rather than a nonuse or area variance and insinuated that a higher burden (e.g., unnecessary

hardship) applies to a use variance. Therefore, we follow the New York approach and hold

that the phrases “practical difficulty” and “unnecessary hardship” apply to nonuse and use

variances respectively, as the applicable zoning ordinance closely follows the 1920 New

York amendment. We adopt the following definition for “unnecessary hardship”:

       [T]he record must show that (1) the land in question cannot yield a reasonable
       return 49 if used only for a purpose allowed in that zone; (2) that the plight of


       45
         Id. at 416; McQuillin, The Law of Municipal Corporations, Unnecessary Hardship
or Difficulty § 25:179.37 (3d ed. Westlaw).
       46
            Matthew, 707 S.W. 2d at 416.
       47
            Id.
       48
            Palmer v. Bd. of Zoning Adjustment, 287 A.2d 535, 541 (D.C. 1972).
       49
        As noted by the Missouri Supreme Court in adopting the New York definition, the
landowner must establish “reasonable return” by submitting evidence that “he or she will be
deprived of all beneficial use of the property under any of the permitted uses” and this

                                              16
       the owner is due to unique 50 circumstances [of the land for which the variance
       is sought] and not to the general conditions in the neighborhood which may
       reflect the unreasonableness of the zoning ordinance itself; and (3) that the use
       to be authorized 51 by the variance will not alter the essential character of the
       locality.52

¶27.   Whether the hardship is self-created is also relevant to the determination of granting

or denying a use variance.53 Similarly, while not determinative of hardship, the Board should

consider the fact Memphis Stone entered into these leases with actual or constructive

knowledge that the land was zoned R-1 and C-2.54 The Board also must ensure that the

variance complies with “the spirit of [the] ordinance” and that “public welfare and safety [be]

secured and substantial justice done.” 55 This requirement “limits the authority of the board




requires “actual proof, often in the form of dollars and cents evidence.” Matthew, 707 S.W.
2d at 417.
       50
         “[U]niqueness does not require that only the parcel of land in question and none
other be affected by the condition that creates the hardship. What is required . . . is that the
hardship condition be sufficiently rare that if all similarly situated parcels in the zoning
district were granted variances the district would remain materially unchanged.” Gail
Gudder, Rathkopf’s the Law of Zoning and Planning, § 58:11 (Thomson/West Aug. 2006)
(citing Matter of Douglaston Civic Ass’n v. Klein, 416 N.E. 2d 1040 (N.Y. 1980)).
       51
         A board should grant a use variance only if it is the “minimum that will afford
relief.” Id. at § 58.12.
       52
            Matter of Otto v. Steinhilber, 282 N.Y. 71, 76, 24 N.E. 2d 851 (1939).
       53
         Gudder, Rathkopf’s the Law of Zoning and Planning at § 58:22. The New York
legislature codified the definition of unnecessary hardship promulgated by the Otto court and
added the requirement the applicant prove the hardship was not self-created. Matter of
Sasso v. Osgood, 657 N.E. 2d 254, 382 (N.Y. 1995).
       54
            See id.
       55
            Batesville, Miss., Code § 1204 (emphasis added).

                                              17
only with respect to the scope and character of the relief to be granted by way of the

variance.” 56

¶28.   In reviewing the record in this case, we find no evidence of “unnecessary hardship”

as we now define that phrase. We further find the definition for unnecessary hardship does

not take into account “public need” as Memphis Stone argues (and the trial court found), but

instead focuses on any alleged “public detriment.” 57      Because this is a case of first

impression, we vacate the decision of the Court of Appeals and reverse the trial court,

remanding the case to the Board so the parties have the opportunity to present it with

evidence in compliance with this opinion. Any evidence presented should be made part of

the record, and the Board should provide specific findings of fact and conclusions of law to

support any decision in this matter.

                                       Conclusion

¶29.   We vacate the decision of the Court of Appeals and reverse the trial court and the

Board, remanding to the Board for further proceedings consistent with this opinion.

¶30.   REVERSED AND REMANDED.

    WALLER, C.J., CARLSON AND DICKINSON, P.JJ., RANDOLPH,
KITCHENS, CHANDLER AND PIERCE, JJ., CONCUR.  KING, J., NOT
PARTICIPATING.




       56
        Gudder, Rathkopf’s the Law of Zoning and Planning at § 58:9. In other words, the
Board does not have to grant the variance as requested; it may impose conditions or
otherwise modify the variance so that it is the “minimum that will afford relief.” See fn.44
supra.
       57
        See generally id. at § 58:16 (public detriment is a factor in determining hardship,
while public detriment and public benefit are considered under practical difficulties).

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