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I Need a Variance. Is My Hardship Self-Created?

Many property owners and developers in Michigan will at some point need to apply for a variance. A variance is essentially a request to the municipality that a property be exempted from certain ordinance requirements. Since public policy is generally in favor of enforcing ordinances, the variance applicant has the burden of proof and persuasion for obtaining a variance.

To obtain a variance, one needs to prove the existence of a hardship. One factor to be considered when a municipality evaluates a variance request is whether the applicant’s hardship was “self-created.” Generally, variances will not be granted where the hardship was self-created. But what does “self-created” mean in the context of a variance application? Luckily, there is case law to guide this question.

Essentially, the self-created question seeks to prevent variances where the hardship is of the property owner’s own making. In Johnson v Robinson, 420 Mich 115, 359 NW2d 526 (1984), the Michigan Supreme Court affirmed denial of a variance when the predecessors in title to a property owner in the same family divided a parcel of property so that the resulting lots did not meet the zoning ordinance’s minimum width requirements. The only hardship present was the lot size, which was created solely by the former property owner’s actions.

Does this mean that a property cannot obtain a variance when hardships are pre-existing and known to the potential buyer? Fortunately, no. The Johnson court declined to extend the ruling to such an extreme. The Court of Appeals also affirmed this principle in a relatively recent case. City of Detroit v City of Detroit Bd of Zoning Appeals, 326 Mich App 248, 926 NW2d 311 (2018).

Some examples of hardships that courts have found are not self-created include increasing taxable value of property combined with comparatively low rental income; unique parcel topography such as ravines and creeks; and surrounding traffic conditions and property uses.

Each municipality and court will evaluate hardships differently. But a good general rule is to ask yourself whether you or the previous owner could have reasonably done anything to prevent the hardship. If not, you likely have a good case that your hardship is not “self-created.”

The attorneys at Dalton & Tomich have extensive experience with applying for and obtaining variances. We practice all over Michigan representing large developers and individual homeowners. If you need a variance, please do not hesitate to contact us. We would be happy to speak with you.

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