Author: Jake Vande Zande

Almost any time you want to do something with your property, zoning is going to play a role in that project. Whether you want to build a new house, add an addition, build a deck or split your lot, you are going to have to navigate your city's zoning ordinance and possibly your city or township's Zoning Board of Appeals ("ZBA"). One of the most common interactions people have with their local ZBA is a variance request. A variance allows you to do something with your property, such as build an addition, that would otherwise not be permissible under the local zoning ordinance. In other words, it is a request to the ZBA to have permission to violate the zoning ordinance.

Variances are authorized under the Michigan Zoning Enabling Act ("ZEA") so that "the spirit of the zoning ordinance is observed, public safety secured, and substantial justice done."[1] There are two types of variances that each come with a different standard of approval: use variance and nonuse variance.

• Nonuse variances are the more common of the two and nonuse variances relate "to the construction, structural changes, or alteration of buildings or structures related to dimensional requirements of the zoning ordinance or to any other nonuse-related standard in the ordinance."[2] "Non-use variances are not concerned with the use of the land but, rather, with changes in a structure's area, height, setback, and the like."[3] The standard for nonuse variances is "practical difficulties."[4]

• A use variance is exactly what it sounds like, a variance to allow for a use of property which is otherwise not permitted by the zoning ordinance. For example, a use variance would be necessary if a property owner wanted to build an office building in a residential zoning district. The standard for use variances is "unnecessary hardship."[5]

Process

While the process of obtaining a variance will vary from city to city and township to township, in general, the process requires an applicant to prepare a variance request or application for his or her local government. They will make a decision based on the applicable zoning ordinance. Often it is the ZBA that makes the decision of whether to grant the variance. Typically, an applicant will have to prepare a variance application stating the type of variance he or she is requesting; providing certain documents like property boundaries, existing and proposed buildings or structures, unusual physical features of the site, building, or structure, etc.; and drafting a document outlining that the applicant can establish all the relevant requirements or conditions for the granting of a variance. Further discussion of these conditions is outlined below.

Nonuse Variance

The practical difficulties standard of approval for a nonuse variance can vary from city to city based on the city's zoning ordinance, which will often outline the factors the ZBA must consider or the conditions the applicant must establish before the ZBA will grant the nonuse variance. The practical difficulties standard is not particularly clear as it is not defined in the ZEA, and Michigan caselaw has not establish a clear test for the standard. Nevertheless, the Michigan Court of Appeals has outlined a few common factors that should be considered including:

• Whether compliance with the strict letter of 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 the variance applied for 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 involved and be more consistent with justice to other property owners.
• Whether relief can be granted in such fashion that the spirit of the ordinance will be observed and public safety and welfare secured.[6]

An applicant will want to establish that these factors weigh in his or her favor in their variance application. Furthermore, an applicant should consider the following factors:

• Whether the property has unique physical circumstances.
• Whether granting the variance will alter the character of the surrounding area.
• Whether the circumstances leading to the variance request were self-created.
• Whether there are reasonable alternatives.
• Whether variance is necessary for the reasonable use and enjoyment of the property.
• Whether the circumstances are so common to merit amending the zoning ordinance.
• Whether granting the variance promotes the spirit of the zoning ordinance.
• Whether the granting of the variance promotes public safety and the general welfare.

An ideal nonuse variance application should consider all the relevant factors or requirements and establish that they can be met.

Use Variance

Use variances carry a more stringent standard in which applicants must make a showing of unnecessary hardship. Just like nonuse variances, the unnecessary hardship standard of approval for a use variance can vary from city to city based on the city's zoning ordinance, which will often outline the factors the ZBA must consider or the conditions the applicant must establish before the ZBA will grant the use variance. Moreover, some zoning ordinances combine the two standards or provide similar factors for both standards.

Nevertheless, Michigan courts have held that unnecessary hardship must be demonstrated with substantial evidence showing the following four factors:

• the property cannot reasonably be used for the purposes permitted in its zoning district
• the circumstances giving rise to the variance request are unique to the property and not general conditions of the neighborhood itself
• the use authorized by the variance will not alter the essential character of the area
• the applicant's problem is not self-created[7]

Applicants will want to establish that these factors weigh in their favor in the variance application. However, it is critical that an applicant review the local zoning ordinance to determine the specific factors that are required under that zoning ordinance.

Navigating zoning ordinances and a ZBA can be difficult, expensive, and time consuming. Often zoning ordinances are complicated and comprehensive. The better understanding applicants have of their zoning ordinance, the better chance they have of obtaining a variance. In addition, a strong variance application greatly increases the likelihood of the ZBA granting a variance. For this reason, reaching out to an attorney to prepare a variance request can be the best approach to ensure a variance is granted, especially because it shows the ZBA you are more willing to appeal a denial to the circuit court. If you are in need of a variance, reach out to Lachman PLC and we will ensure we do everything possible to see that your variance is granted.

[1] MCL 125.3604(7).

[2] MCL 125.3604(8).

[3] National Boatland, Inc v Farmington Hills Zoning Bd of Appeals, 146 Mich App 380, 387, 380 NW2d 472 (1985).

[4] MCL 125.3604(7).

[5] Id.

[6] National Boatland, Inc v Farmington Hills Zoning Bd of Appeals, 146 Mich App 380, 388, 380 NW2d 472 (1985).

[7] Janssen v Holland Charter Twp Zoning Bd of Appeals, 252 Mich App 197, 201, 651 NW2d 464 (2002) (citing Johnson v Robinson, 420 Mich 115, 125-126, 359 NW2d 526 (1984), and Puritan-Greenfield Improvement Ass'n v Leo, 7 Mich App 659, 672-673, 677, 153 NW2d 162 (1967)).