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April 9 2018

Practical Advice for Variances

By: James F. Scales

Unlike most laws or ordinances, zoning ordinances are unique in that they attempt to apply a uniform set of regulations to properties which can be very different in terms of topography, access and existing uses or buildings. The variance device is intended to avoid an unfair and unjust application of the zoning ordinance in unique situations. Based on years of experience working with Zoning Boards of Appeal (ZBA), we offer the following advice:

Know the difference between a dimensional variance and a use variance. A dimensional variance is for a use which is permitted in the zoning district, but which does not meet setback, area, height, location or similar requirements of the zoning ordinance. A use variance is a request to put the property to a use not permitted in the zoning district. Cities and villages are allowed to grant use variances; only townships which provided for use variances in their ordinances or granted use variances before 2006 are permitted to grant use variances. Although use variances should very rarely be granted, we recommend allowing consideration of use variances if your community is eligible.

Apply the correct standard for the type of variance requested. The standard of approval for a dimensional variance is “practical difficulty,” which the courts have defined to mean that strict compliance is “unnecessarily burdensome” and granting the variance would “do substantial justice to the owner.” The “undue hardship” standard for a use variance is much more difficult to meet, and requires “that the property cannot reasonably be used in a manner consistent with the existing zoning.” Check that your ordinance applies the correct standard for the type of variance requested.

Write the standards for a variance in a manner which is understandable to the Zoning Board of Appeals and the public. Many zoning ordinances have simply copied the boilerplate standards used in other zoning ordinances or which have always been used in the past. Take some time to take a fresh, critical look at the standards in your ordinance. Are they clear? Do they overlap each other? Should they be amended? For example, the “practical difficulty” standard could be amplified and clarified as follows:

“Does strict compliance with the ordinance either (1) totally prevent improvement of the property in a manner which is reasonable, customary and consistent with other properties in the area; or (2) cause practical difficulty in strict compliance with the ordinance, due to significant or unjustified expense in light of the scope of the project, destruction or demolition of attractive features of the property, or similar reasons.”

Likewise, the usual requirement that the difficulty not be “self-created” could be explained as follows:

“That the practical difficulty complained of was not created as a result of any action taken by the applicant or predecessors in interest of the property which was unlawful, or which could have been reasonably foreseen to create difficulty in complying with the ordinance for future improvements.”

Remember, it is up to the applicant to justify the variance. Very often, the applicant puts little effort into justifying the request for a variance. The zoning administrator should insist that the applicant provide evidence as to why they satisfy each of the required variance standards, which could include cost estimates for strict compliance or other detailed information, before the application goes to the ZBA. If the applicant doesn’t support their application, then the application could be tabled to allow the applicant to provide additional information. Or, the ZBA could make a finding that one or more of the factors for a variance is not met because “the applicant has failed to present information demonstrating that this factor has been satisfied.”

A variance should not be granted just because no one objects, nor should it be denied because the neighbors object. In our experience, ZBAs sometimes approve variances simply because no one objects to the request. This does not give proper respect to the zoning ordinance, which was adopted by the elected representatives of the citizens, and sets a bad precedent for other decisions. Input from neighbors can be helpful in considering whether the variance would be detrimental to adjacent properties in the neighborhood, but in doing so, the ZBA should focus on the precise variance being requested. Often, neighbors object simply because they do not want a new building to be constructed on a previously vacant property.

Always visit the site. Viewing the site gives ZBA members an appreciation of the “lay of the land” that cannot be gained from plans or aerial photographs. The zoning application form should include an authorization for ZBA members to enter the site. The ZBA should avoid touring the site in groups larger than a quorum.

Avoid contact with neighbors or applicants outside of the meeting. Unlike the governing body or Planning Commission, which have policy making authority, the ZBA’s authority is administrative or quasi-judicial in nature. For that reason, ZBA members should avoid having contact with applicants or neighbors outside of the meeting, both before and after the decision is made. If a neighbor contacts a ZBA member by phone or e-mail, they should be encouraged to attend the meeting or to put their comments in writing so they can be shared with the entire ZBA.

Focus in particular on whether the need for the variance is a result of the unique characteristics of the property, or is a result of the applicant’s lifestyle or disagreement with the ordinance. A variance should only be available when a unique circumstance of the property results in a practical difficulty or undue hardship. Certain variance requests are simply a disagreement with the zoning ordinance. For example, a variance request concerning the maximum size of accessory buildings, the number of domestic animals allowed, or restrictions on a home occupation are disagreements with the ordinance itself, not the way it applies to a particular property. Those objections – even if they seem to have merit – should be referred to the Planning Commission and governing body.

The findings of fact must say why each factor is met, not just that each factor is met. If a variance is challenged in court, the judge reviews whether the decision represents the exercise of reasonable discretion based upon competent, material and substantial evidence in the record. A finding that: “We find that practical difficulties are present” is not sufficient. Instead, the finding should say something like: “We find that complying with the ordinance would present a practical difficulty because it would require an additional $30,000 of grading work and removal of many mature trees from the property.” Also, specific findings should be made on all of the factors, even if a variance is denied because it does not meet one or more of the factors. This is important in case a denial is appealed.

Be very careful to specifically define what is being approved. Sometimes the ZBA may, for example, approve a variance in very vague terms such as “a variance allowing a five-foot side yard setback.” Is that for a one-story building with a 40-foot wall? Or a two-story building with an 80-foot wall on that side? These two examples could have very different impacts on the neighboring properties. The minutes should very specifically describe the character of the building which is being approved by variance or, better yet, incorporate drawings and elevations, and indicate that the variance is being granted for a specific building at that specific location.

For difficult or contentious issues, the ZBA can order that findings of fact be prepared for adoption at a future meeting. Sometimes it is apparent that a variance is going to be challenged in court, either by a disappointed applicant or by neighboring property owners. In that case, it is important to have the best “record” available for review by a court. The ZBA can make its decision, and direct that specific findings of fact be prepared by the zoning administrator and/or township attorney for review and approval at a future meeting. This might delay the time in which the appeal period is triggered, but it is better to have a good record than to rush to trigger the appeal period.

If someone has already violated the ordinance when they apply for a variance, treat the situation as if the building or improvement did not exist. Sometimes a property owner might carelessly or intentionally build an improvement which does not comply with setback or other dimensional requirements. When this is discovered, they may apply for a variance. The expense incurred in demolishing and relocating the improvement is a classic “self-created” hardship – the hardship results from the action of the applicant, not the property itself, and is not a justification for a variance. However, even though the cost of demolition and removal cannot be considered a hardship, that does not mean the applicant cannot still justify a variance. The ZBA’s approach should be to treat the application as if the building had not been built, and neither hold the ordinance violation against the applicant nor give them sympathy for violating the ordinance.

Get training and advice for the ZBA. Unlike planning commissions, Zoning Boards of Appeal might meet only a few times a year. Training is available through Michigan State University Extension and the Michigan Townships Association. But especially if a ZBA meets very infrequently, it can be useful for the zoning administrator, planner or township attorney to prepare a report and framework for decision for the ZBA, and even attend the meeting.

Appoint a lawyer to the ZBA. Because lawyers are trained in reading ordinances and applying the law to the facts, consider recruiting a lawyer in your community to serve on the ZBA.

It is sometimes said that 90% of the variances which are granted should have been denied. We believe communities should strive to have most variance requests approved, because only those variances which have merit reach the Zoning Board of Appeals. Achieving that goal requires that the zoning administrator seek alternatives which do not require a variance, discourage applicants from seeking a variance which should not be granted, and for the ZBA to develop a track record of denying variances which do not deserve to be approved.

Mika Meyers regularly conducts training sessions on request for our clients’ Zoning Boards of Appeal, which are tailored to their specific ordinance provisions. We would be pleased to do that for your ZBA.