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Variances, Zoning Board of Appeals (ZBAs) and Self-Created Hardships and Practical Difficulties

Written by Adel Nucho on June 9, 2021 Category: Land Use and Zoning, Michigan Land Use and Zoning, Small Businesses

When you seek a variance, you are essentially asking for permission to violate an applicable zoning ordinance.  In other words, it is a request for an exception; a license to do something on or use your property in a manner that would otherwise be prohibited.

Types of Variances: Use vs Nonuse Variances

A variance can be categorized as either a use variance or nonuse variance.  Take a case in which the zoning ordinance restricts an area to single-family homes but the owner wants to use the property for a daycare or yoga studio.  That scenario may be the subject of a use variance request.

A nonuse variance, on the other hand, gives you permission to do things unrelated to the type of use involved.  Like seeking a variance from the minimum setback requirements (usually measured by looking to the distance between a building and the property’s boundary lines), sign regulations, or buffering requirements.

The ZBA’s Statutory Authority 

A zoning board of appeals (ZBA) has discretion in deciding whether a request for a variance should be granted (note, however, that there are certain limitation on such authority depending on the type of variance being requested).

The authority and standard for considering and approving a variance is, generally speaking, found in the Michigan Zoning Enabling Act, MCL 125.3604(7).

The focus boils down to two main questions.  First, are there any practical difficulties (for a nonuse variance) or unnecessary hardships (for a use variance) if the text of the zoning ordinance is applied strictly in a specific case?  If so, will granting the variance lead to the spirit of the zoning ordinance being observed, public safety secured, and substantial justice done?

These questions, of course, depend on the nature and the specific facts of the variance request, and courts have applied and interpreted these standards in a wide range of cases.  But regardless of the ZBA’s finding, it is well-established in Michigan that some variance requests must be denied.

Self-Imposed or Self-Created Hardships or Difficulties

One of the things that would require a denial by the ZBA under Michigan law is a showing that the hardship or practical difficulty caused by the zoning ordinance, and hence the need for a variance, was self-created.

Generally speaking, the act of purchasing property with knowledge that an ordinance prohibits something (like billboards) will not, standing alone, be considered a self-created hardship. Put another way, the knowledge of the prohibition will not be used against and prohibit the buyer from asking for and obtaining a variance.  Rather, the rule is usually triggered when the landowner does something to or on the property in a way that makes it unfit for the use it is zoned for.

A recent unpublished decision by the Michigan Court of Appeals highlights these legal principles in a case where the landowner purchased a parcel (which contained more the one lot), removed the existing structure, and then requested a variance from the minimum surface area requirement to build another structure.  The request was denied, among other things, and the case made its way to the appellate court.

Ultimately, the Court affirmed the decisions below, finding: the ZBA is without authority to grant the variance request because the owner created the practical difficulty when she removed the existing structure.

If you are currently dealing with a variance issue, looking to apply for one, or simply have some questions, the attorneys at Dalton & Tomich, PLC can advice and assist you through the process.  Give us a call at (313) 859-6000 and ask to speak to one of us.

 

This blog is intended for general informational purposes only and should not to be construed as legal advice.

 

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