Property II, Pages 870–875

Matthew v. Smith

Supreme Court of Missouri, 1986


Defendant Brants own a tract of land with two single-family residences on it housing their tenants. The lot was only zoned for a single-family residence, so defendants then applied for a variance to allow them to rent both houses. This was granted, and a neighbor sued over it.

Procedural History:

  • Circuit court affirmed the board's decision.

  • Court of appeals reversed and a dissenting judge certified to this court.


Was defendant's use variance correctly granted?

(Old) Rule:

Missouri does not permit use variances.


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[A]n applicant for a variance must prove:

  1. relief is necessary because of the unique character of the property rather than for personal considerations; and
  2. applying the strict letter of the ordinance would result in unnecessary hardship; and the
  3. imposition of such a hardship is not necessary for the preservation of the plan; and
  4. granting the variance will result in substantial justice to all.

Although all the requirements must be satisfied, it is generally held that "'[u]nnecessary hardship' is the principal bases on which a variance is granted."


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Before the Board may exercise its discretion and grant a variance upon the ground of unnecessary hardship, the record must show that

  1. the land in question cannot yield a reasonable return if used only for a purpose allowed in that zone;
  2. that the plight of the owner is due to unique circumstances 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 by the variance will not alter the essential character of the locality.


Lack of reasonable return requires that the owner is deprived of all beneficial use of the land.


  • While the second structure violates area restrictions, defendant did not seek this, as it is a permitted non-conforming structure.

  • Defendants only made conclusory statements that this restriction would deprive them of a reasonable return, but no evidence of land value was presented. The board did not allow plaintiff to present such info, so it was without authority to grant a use variance upon its record.

  • However, defendants may be entitled to a nonconforming use under the ordinance, as it existed prior to and at the time of the adoption of the zoning ordinance. There is no evidence that the property has gone vacant long enough for this to not apply.


No, the use variance was improperly granted. Circuit court reversed. Remanded back to the board for defendants to present evidence warranting the grant of a variance and to claim a nonconforming use.