ZBA matters (Variances, Appeals, Requests for Interpretation)

Most every municipality in the State of Michigan has a zoning ordinance (there are default rules in the absence of an ordinance). A zoning ordinance dictates the approved uses of land by zone or region. Zoning ordinances allow the government to control manner in which the municipality is organized, as well as create a structure in which the community can grow. In the absence of a sound plan, development can become chaotic, decreasing property values and causing unnecessary inefficiencies in land use. Zoning ordinances places land in different categories, which each category allowing certain uses.

Each municipality has a zoning administrator (“ZA”) whose job is to enforce the zoning ordinance as it exists. The ZA is also in charge of issuing land use permits, which govern certain construction related activities, typically including the construction of significant structures, clearing of land, parking lot construction, or major renovations to existing structures. The ZA is charged with reviewing applications for land use permits, and based on certain evaluative criteria, may approve or deny the request.

The landowner now has the right to appeal the decision to the Zoning Board of Appeals (“ZBA”). The ZBA hears appeals for the issuance of permits, interprets zoning ordinance provisions, and reviews and approves variance requests. Although the ZBA hears appeals of the ZA’s decisions and interprets the ordinance, the largest portion of its work is reviewing variances.

A variance is a request for the ZBA to allow a deviation from the ordinance. There are two types of variances: use and non-use variances. A use variance is a request to use property in a manner inconsistent with the zoning ordinance. For instance, if a zoning district prohibits anything but single-family homes, a homeowner that want’s to operate a photography studio out of his home would require a use variance.

A non-use variance is requests for deviation from the zoning ordinance, where strict compliance would be impractical. The most common type of non-use variance is a request for relief from a set-back requirement. For instance, if an ordinance requires that residential structures be no closer than 20 feet to the street, but a home is already constructed 10 feet too close, the owner could request a non-use variance.  

Both types of variances have specific criteria upon which the decision to grant the variance is made. Many of those criteria are very subjective. For instance, one of the criteria for evaluating a request for a non-use variance is “[w]hether a grant of a variance would do substantial justice to the applicant as well as to other property owners in the district. . .” Give the wide latitude such a standard provides, having experienced counsel that is extremely experienced, not only with the criteria, but with the members of the ZBA itself is indispensable.

If you are planning to use your land in a manner that requires a use variance, or if you are using the land in a manner violative of the zoning ordinance, requiring a non-use permit, the experienced attorneys at Neumann Law Group are prepared to assist you. Call us with any questions you may have or to set up a free consultation.