An appellate court has overturned the City of Los Angeles's approval of a variance that allowed the expansion of a nonconforming use. The court determined that a proposal to expand a gas station located in a residential zone did not meet the city's criteria for a variance. Specifically, the Second District Court of Appeal found that there was no evidence that imposing existing zoning requirements would create a hardship for the landowner or business owner — a requirement for a variance. The court also ruled that the city could not approve the variance based on equity because there were no comparable properties with the same zoning and use in the vicinity. Stephen L. Jones, the attorney representing a landowner who fought the variance, said the court appeared to be sending a message to the city with its blunt ruling and publication of the opinion. That message is that the law — not politics — must provide the basis for the city's land use decisions, Jones said. He noted that in administrative hearings before three different bodies at the city, the variance had received 21 affirmative votes without a single dissention. Yet the reversal appeared to be easy for the unanimous three-judge appellate panel. The gasoline station in question is located just off the Pacific Coast Highway. The station has been in operation since 1922, and it has been a nonconforming use since 1925, when the city annexed the territory and zoned it for single-family residences. In 1996, station owner Brian Clark began detailing automobiles on the site. The city cited Clark for operating an unlawful car wash, so Clark in 1999 filed an application for a variance to permit the detailing service. A year and a half later, the zoning administrator approved the variance. On appeal from resident Theodore Stolman, both the West Los Angeles Area Planning Commission and the City Council upheld the zoning administrator's decision. Stolman then filed a lawsuit against the city. Los Angeles County Superior Court Judge Dzintra Janavs ruled for the city. Stolman appealed and the Second District overturned the lower court. Under the Los Angeles Municipal Code, the granting of a variance requires findings in five areas. Two of those areas were at issue here: the creation of a hardship, and the preservation of property rights that are generally possessed by property owners in the same zone and vicinity. The zoning administrator reasoned that the limited nature of the gas station prevented the continued viability of the business, so imposing the strict requirements of the residential zoning would be an "unnecessary hardship." But the Second District rejected this conclusion because the only evidence of hardship was Clark's limited testimony. The court noted that the property owner invested $144,000 in new gasoline tanks before Clark even applied for a variance. "[T]here is no evidence demonstrating that the property cannot be put to effective use as a gasoline station without the automobile detailing operation. Accordingly, there may be no unnecessary hardship if Clark is seeking the variance in order to increase his already existing profits from the sale of gasoline" Presiding Justice Charles Vogel wrote for the court. As for the property rights issue, the zoning administrator found that Clark's station was unique to the immediate area. But she also determined "numerous examples exist of gas stations which exist on zones where they are not permitted by right but on which they are able to operate pursuant to approvals of variances, nonconforming rights cases or other discretionary actions." Stolman contended this finding was bogus because the city code requires comparisons with property "in the same zone and vicinity." The closest example anyone could find was a gas station in a residential zone in the city's Eagle Rock district — 19 miles away — that was allowed to add a convenience store. The court ruled that Clark's gas station "should not be compared to other properties potentially located 20 or more miles away. If, as here, there is no evidence of any comparable properties within reasonably close proximity … the third finding cannot be made and the variance should be denied." The Case: Stolman v. City of Los Angeles, No. B164169, 04 C.D.O.S. 30, 2004 DJDAR 22. Filed December 30, 2003. The Lawyers: For Stolman: Stephen L. Jones, Overton, Lyman & Prince, (213) 683-1100. For the city: Jeri L. Burge, assistant city attorney, (213) 485-6361.