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Court Clarifies Difference Between Standards for Use and Nonuse Variances.

Written by Lawrence Opalewski on March 10, 2022 Category: Land Use and Zoning, Michigan Land Use and Zoning

If you’ve ever applied for a variance, you’ll know that there are two different types of variances. There is a “use variance” and a “nonuse variance.” While some municipalities clearly lay out the differences, others tend to conflate the two types. Fortunately, the Michigan Court of Appeals has recently clarified the difference. The Court of Appeals also clarified the different standards of review each variance type should receive.

In Pegasus Wind, LLC v Tuscola County, a wind energy company sought variances to construct wind turbines. The variances were denied by the Airport Zoning Board of Appeals (AZBA). Pegasus appealed the denial to the Tuscola County Circuit Court. The Circuit Court affirmed the denial. Pegasus appealed to the Michigan Court of Appeals. It argued that the variances should be granted.

On appeal, the Court of Appeals first noted that there is a difference between use and nonuse variances. Specifically, that “[u]se variances permit a use of the land which the zoning ordinance otherwise proscribes, while nonuse variances are those variances concerned with the area, height, and setback requirements of structures.” The Court then went on to note the difference in standards for granting use vs nonuse variances. “Practical difficulties” is the applicable standard for nonuse variances and “unnecessary hardship” applies to use variances.

After clarifying that Pegasus sought nonuse variances, the Court evaluated the “practical difficulties” arguments. When evaluating a practical difficulty, a court considers “whether the denial deprives an owner of the use of the property, compliance would be unnecessarily burdensome, or granting a variance would do substantial justice to the owner.” The Court further clarified that a “practical difficulty” is not necessarily related to problems inherent in the property itself. In other words, a “practical difficulty” could be caused by something such as financial hardship. Since the AZBA had applied an incorrect legal review of the “practical difficulty” standard, the Court reversed.

Further, the Court emphasized that when evaluating whether a review agency’s decisions were supported by substantial evidence on the record, the analysis includes a qualitative component. Thus, both the circuit court and the Court of Appeals must engage in some weighing of the evidence. After weighing the evidence used by the AZBA to deny the variances, the Court concluded that none of the AZBA’s stated reasons for finding that Pegasus failed to establish a practical difficulty were supported by the record. The Court of Appeals reversed in favor of Pegasus.

This case is a win for landowners and developers seeking variances. It requires local reviewing boards to apply the correct standard of review, and to support their decisions with solid evidence. It appears the Court of Appeals does not wish circuit courts to simply rubber-stamp local denials of variances.

The attorneys at Dalton & Tomich, PLC have extensive experience with variances and other land use issues. If you need to obtain a variance or appeal your denial, please do not hesitate to contact us. We would be happy to speak with you.

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