So what does the Zoning Board of Appeals do? Having been appointed to the City of Plymouth Zoning Board of Appeals, I was asked the question and had to think a moment about the answer. A Zoning Board of Appeals hears appeals, evaluates requests for interpretations and approves or denies dimensional and use variances. It is a bit more complicated than what it sounds.
A variance is permission from the ZBA to allow a deviation from the code or ordinance as it pertains to zoning matters. Zoning codes are in place to regulate the use of land within a community. To bypass a zoning code, the property owner is required permission from the ZBA for a variance. The majority of cases before the ZBA are variances and in Michigan there are two types of variances: dimensional (non-use) and use variances.
A nonuse or dimensional variances is a modification of a provision or requirement of the zoning ordinance authorized by the zoning board of appeals when the strict or literal application of the ordinance would cause “practical difficulties” for the applicant. Nonuse variance requests are typically associated with modifications of required yard setbacks, building heights, parking requirements, landscaping or buffering restrictions and related building or facility placement provisions. The granting of a nonuse variances requires the appellant to demonstrate a practical difficulty. Practical difficulty is generally determined by the Zoning Board of Appeals through application of the following four standards:
• Whether strict compliance with the restrictions governing area, setbacks, frontage, height, bulk or density would unreasonably prevent the owner from using the property for a permitted purpose, or would render conformity with such restrictions unnecessarily burdensome.
• Whether a grant of a variance would do substantial justice to the applicant as well as to other property owners in the district, or whether a lesser relaxation than that applied for would give substantial relief to the owner of the property and be more consistent with justice to other property owners.
• Whether the plight of the owner is due to unique circumstances of the property and not to general conditions in the area.
• Whether the problem is self-created.
A use variance allows a use of land that is not permitted in the district in which the property is placed. The granting of a use variance requires the appellant to show unnecessary hardship. Unnecessary hardship is generally determined by the Zoning Board of Appeals through application of the following four standards, all of which must be demonstrated:
• The property could not be used for the purposes permitted in that zone.
• The plight is due to unique circumstances peculiar to the property and not to general neighborhood conditions.
• That the use would not alter the essential character of the area.
• That the problem is not self-created.
When considering both use and nonuse variances, the ZBA must ensure that the “spirit of the ordinance is observed, public safety secured and substantial justice done.”
If either a use or nonuse variance is denied, the applicant may appeal the decision to the County Circuit Court. The Court review the appeal “denovo,” meaning it only looks at the record before the Zoning Board of Appeals. Further, the appellate standard of review is very high. Therefore, it is extremely important to make sure that the applicant provides as much information as possible to the Zoning Board of Appeals and works with professionals to give it the best advantage of seeking the relief he or she desires in the variance. The attorneys at Dalton & Tomich plc have decades of experience in planning and zoning applications and appeals. Please contact us if you have any questions.
