Land development projects can involve a variety of issues that may form valid reasons for contesting such proposals. Often times, land use and zoning applications ask for modifications and exceptions to existing property regulations. For example, a property owner may wish to build a structure taller than the maximum height permitted for that zoning district. Or the property owner wants to open a retail store in an area designated as exclusively residential. In both scenarios that property owner would need to apply for a variance. These applications are common as variance requests can cover a broad spectrum of matters. Therefore, this blog will outline what variances are and what the legal requirements surrounding them involve.
The State of Michigan equips local governments with broad authority over zoning and land use regulations. As referenced throughout our blog series on contesting land use decisions, the Michigan Zoning Enabling Act, MCL 125.3101 et. seq. (“MZEA”) provides the parameters and framework for municipal agencies or bodies to operate under. Among the actions authorized under the MZEA, granting and denying variances is one of the more frequently employed by local governments.
A variance is an exception to complying with a governing zoning ordinance. Variances allow a landowner to divert from existing land use and zoning regulations that would otherwise apply to their property. Additionally, there are two types of variances: use variances and nonuse variances. Use variances allow for uses of real property that a zoning ordinance otherwise prohibits. Nonuse variances on the other hand, usually concern waivers or exceptions to a structure’s area, height, setback, etc.
On the other hand, a nonconforming use is defined generally as a use existing at the time of the effective date of a zoning ordinance which does not confirm with the uses implemented for the property by the ordinance but is permitted to continue. As a result, obtaining approval for a variance is usually not required. However, should a landowner wish to enlarge or alter the nonconforming use, they may be required to apply for a variance.
Under Michigan law there are different legal standards for granting a use variance as compared to a nonuse variance. At the local level, zoning ordinances must provide clear standards for granting variances, which the appropriate governing body must abide by when making its determination. Zoning ordinances differ across jurisdictions therefore, their standards for approving variances may slightly differ as well. In addition to local standards, state law has also implemented certain requirements for approving use and nonuse variances which apply to all counties.
For nonuse variances, a zoning board may grant them if there are “practical difficulties” shown by complying with the strict letter of an ordinance so that the spirit of the zoning ordinance is observed, public safety secured, and substantial justice done. The term “practical difficulty” has been articulated to relate to issues inherent in the property itself as opposed to self-imposed or personal conditions related to the landowners. Davenport v. City of Grosse Pointe Farms Bd. of Zoning Appeals, 210 Mich.App. 400, 534 N.W.2d 143 (1995). Some factors local governments and/or courts may consider when determining whether a landowner will suffer a practical difficulty include:
- whether compliance with the governing ordinance or regulations would unreasonably prevent the owner from using the property for a permitted purpose;
- whether granting such variance would do substantial justice to the owner as well as other property owners;
- and whether relief can be granted so that the spirit of the ordinance will be observed.
For use variances, they may not be granted unless the zoning board can find, on the basis of substantial evidence, that the landowner has established an unnecessary hardship. See, Lorland Civic Ass’n v. DiMatteo, 10 Mich.App. 129, 157 N.W.2d 1 (1968). Specifically, Michigan law provides zoning boards must find on the basis of substantial evidence that:
- the property cannot be reasonably used in a manner consistent with existing zoning;
- the landowner’s hardship is due to circumstances unique to the property and not general conditions in the area that may reflect the unreasonableness of the zoning;
- a use authorized by the variance will not alter the essential character of the area;
- and the hardship is not self-imposed by the applicant. See, Janssen v. Holland Charter Tp. Zoning Bd. of Appeals, 252 Mich. App. 197, 651 N.W.2d 464 (2002).
As mentioned, zoning variances are common as communities, neighborhoods, and property owners change over the years. Whether dealing with nonuse variances to address practical difficulties or seeking use variances to overcome unnecessary hardships, the legal standards and requirements set by Michigan law ensure that these exceptions are granted only when justified. As local zoning boards make these determinations based on substantial evidence and applicable legal standards, working with knowledgeable counsel can be instrumental in achieving favorable outcomes in complex land use matters. The attorneys at Dalton & Tomich, PLC, have advocated for parties contesting land use development projects in numerous cases, obtaining plenty of experience in this arena. If you wish to speak to one of our attorneys regarding a variance or have any related questions, please call (313) 859-6000.
