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ZONING ZONING
BOARDS OF
BOARDS OF
APPEAL GONE
APPEAL GONE
WILD!WILD!
Adapted from a pecha kucha style
presentation made by Steven J.
Van Steenhuyse, AICP, of LSL
Planning, Inc., at the 2011 Planning
Michigan Conference in Grand
Rapids
WH
Y T
HE Z
BA
?
WH
Y T
HE Z
BA
?
The purpose of a Zoning
The purpose of a Zoning
Board of Appeal (ZBA) is
Board of Appeal (ZBA) is
to recognize those
to recognize those rarerare
circumstances where the
circumstances where the
requirements of the
requirements of the zoning ordinance just do
zoning ordinance just do
not fit because of
not fit because of circumstances related
circumstances related to to
the landthe land..
RARE? HAH!
Where
does
the
Where
does
the
ZB
A g
et
its
ZB
A g
et
its
pow
er?
pow
er?
Article VI of the Michigan
Article VI of the Michigan
Zoning Enabling Act (MZEA)
Zoning Enabling Act (MZEA)
establishes ZBAs to “hear
establishes ZBAs to “hear
and decide questions that
and decide questions that
arise in the administration
arise in the administration
of the zoning ordinance”
of the zoning ordinance”
and to grant variances “so
and to grant variances “so
that the spirit of the zoning
that the spirit of the zoning
ordinance is preserved,
ordinance is preserved,
public safety secured, and
public safety secured, and
substantial justice done.”
substantial justice done.”MCL 125.3601 MCL 125.3601 ET SECET SEC
So w
hat’s
So w
hat’s
the p
roble
m?
the p
roble
m?
Too many ZBAs have
Too many ZBAs have
allowed the variance
allowed the variance
process to become a
process to become a
way for property owners
way for property owners
to avoid the zoning
to avoid the zoning
requirements – just pay
requirements – just pay
the fee, show up to a
the fee, show up to a
meeting and get your
meeting and get your
variance!variance!
ZBA – Zoning Board of
ZBA – Zoning Board of
APPROVALS?
APPROVALS?
So, w
hat is th
e
So, w
hat is th
e
ZB
A su
ppose
d to
ZB
A su
ppose
d to
do?
do?
Grant variances
Grant variances onlyonly
when, due to
when, due to
circumstances related
circumstances related
to the property, strict
to the property, strict
adherence results in a
adherence results in a
practical difficulty
practical difficulty (non- (non-
use) or use) or unnecessary
unnecessary
hardshiphardship (use variance)
(use variance)
DECISIONS ARE BASED
DECISIONS ARE BASED
ON STANDARDS!
ON STANDARDS!
WH
AT’S
A
WH
AT’S
A
STA
ND
AR
D?
STA
ND
AR
D?
• Special/unique conditions
Special/unique conditions
related to the property (size,
related to the property (size,
shape, topography, etc.)
shape, topography, etc.)
• Needed to preserve a
Needed to preserve a
commonly enjoyed property
commonly enjoyed property
rightright• Not self created
Not self created• No adverse effects
No adverse effects• Does not impair intent and
Does not impair intent and
purpose of ordinance
purpose of ordinance• MUST MEET ALL
MUST MEET ALL STANDARDS
STANDARDS
WHAT IS THE MOST
WHAT IS THE MOST
COMMON REASON THE
COMMON REASON THE ZBA APPROVES A
ZBA APPROVES A VARIANCE?VARIANCE?
1.1. The request meets the
The request meets the
standards of review.
standards of review.2.2. The land could not be used in a
The land could not be used in a
reasonable manner unless the
reasonable manner unless the
variance is granted.
variance is granted.3.3.No one showed up to object.
No one showed up to object.
QUIZ!
1.1.The request does not meet
The request does not meet
one or more of the standards
one or more of the standards
of review.of review.2.2.The property can be used in a
The property can be used in a
reasonable manner without
reasonable manner without
need of a variance
need of a variance3.3.A neighbor objects.
A neighbor objects.
QUIZ!
WHAT IS THE MOST
WHAT IS THE MOST
COMMON REASON THE
COMMON REASON THE
ZBA DENIES A VARIANCE?
ZBA DENIES A VARIANCE?
CA
SE S
TU
DY
CA
SE S
TU
DY
Request 1: a homeowner
Request 1: a homeowner
wishes to construct an
wishes to construct an
additional accessory
additional accessory
structure in the rear
structure in the rear
yard; only 1 is allowed.
yard; only 1 is allowed.
No objectors.
No objectors.
APPROVED!APPROVED!
CA
SE S
TU
DY
CA
SE S
TU
DY
Request 2, same agenda.
Request 2, same agenda.
Owner wishes to construct
Owner wishes to construct
a garage with a floor area
a garage with a floor area
exceeding ordinance
exceeding ordinance
maximums.maximums.
Neighbor 1: He has a rebel
Neighbor 1: He has a rebel
flag for curtains!
flag for curtains!
Neighbor 2: He lies naked
Neighbor 2: He lies naked
in the rear yard and drinks
in the rear yard and drinks
beer!beer!
DENIED!DENIED!
Oth
er co
mm
on re
aso
ns m
isuse
d
Oth
er co
mm
on re
aso
ns m
isuse
d
for a
ppro
ving a
varia
nce
request
for a
ppro
ving a
varia
nce
request
Reaso
n N
o. 1
Reaso
n N
o. 1Who creates and approves
Who creates and approves
the zoning ordinance?
the zoning ordinance?
It isn't the ZBA!
It isn't the ZBA!
This shifts policy making
This shifts policy making
power from the planning
power from the planning
commission and elected
commission and elected
body to the ZBA
body to the ZBA
THE ORDINANCE IS TOO
THE ORDINANCE IS TOO
STRICT!STRICT!
Oth
er co
mm
on re
aso
ns m
isuse
d
Oth
er co
mm
on re
aso
ns m
isuse
d
for a
ppro
ving a
varia
nce
request
for a
ppro
ving a
varia
nce
request
Reaso
n N
o. 2
Reaso
n N
o. 2Really?Really?
Are you sure?
Are you sure?
Take this with a grain of
Take this with a grain of
saltsalt
If they are willing to back
If they are willing to back
out over sign size, well,
out over sign size, well,
sayonara!sayonara!
IT’S THE ONLY SIGN THAT
IT’S THE ONLY SIGN THAT
THEY MAKE!THEY MAKE!
Oth
er co
mm
on re
aso
ns m
isuse
d
Oth
er co
mm
on re
aso
ns m
isuse
d
for a
ppro
ving a
varia
nce
request
for a
ppro
ving a
varia
nce
request
Reaso
n N
o. 3
Reaso
n N
o. 3Again, Again, really?
really?
Call their bluff, maybe?
Call their bluff, maybe?
If that’s how they feel
If that’s how they feel
about your community
about your community
and your rules, you may
and your rules, you may
be better off without
be better off without
‘em.‘em.
IF YOU WON’T GIVE IT TO US,
IF YOU WON’T GIVE IT TO US,
WE WILL GO ELSEWHERE
WE WILL GO ELSEWHERE
Oth
er co
mm
on re
aso
ns m
isuse
d
Oth
er co
mm
on re
aso
ns m
isuse
d
for a
ppro
ving a
varia
nce
request
for a
ppro
ving a
varia
nce
request
Reaso
n N
o. 4
Reaso
n N
o. 4But are the standards
But are the standards
met?met?
What if he/she
What if he/she doesn’t
doesn’t do do
a good job (may be too
a good job (may be too
late to correct after
late to correct after
variance is granted)
variance is granted)
But are the But are the standards
standards
met?met?
WE KNOW HE/SHE WILL DO
WE KNOW HE/SHE WILL DO
A GOOD JOBA GOOD JOB
So w
e g
rant
So w
e g
rant
vari
ance
s and d
on’t
vari
ance
s and d
on’t
ca
re a
bout
care
about
standard
s. S
o w
hat?
standard
s. S
o w
hat?
May lead to enforcement
May lead to enforcement
nightmaresnightmaresPunishes those who do
Punishes those who do
follow the rules
follow the rulesIgnores the efforts of the
Ignores the efforts of the
PC and elected body who
PC and elected body who
created the ordinance
created the ordinanceInvites asking for
Invites asking for forgiveness instead of
forgiveness instead of
permissionpermissionLegal action
Legal action
1. T
RA
ININ
G1. T
RA
ININ
G M
ichigan Township Association
Michigan Township Association
(MTA), Michigan Municipal
(MTA), Michigan Municipal
League (MML), Michigan State
League (MML), Michigan State
University Extension (MSUE),
University Extension (MSUE), oror
Michigan Association of
Michigan Association of
Planning (MAP)
Planning (MAP)
Region 2 Planning Commission
Region 2 Planning Commission
staff staff oror a planning consultant
a planning consultant
Your attorney, if all else fails
Your attorney, if all else fails
WHAT YOU DON’T
WHAT YOU DON’T
KNOW KNOW CANCAN HURT YOU!
HURT YOU!
2. R
EV
IEW
YOU
R
2. R
EV
IEW
YOU
R
OR
DIN
AN
CE
OR
DIN
AN
CE
Maybe the ordinance
Maybe the ordinance isis too too
restrictiverestrictive
Look for other ways to
Look for other ways to
regulate (e.g., established
regulate (e.g., established
setbacks, height exceptions,
setbacks, height exceptions,
permitted encroachments,
permitted encroachments,
overlays)overlays)
Make sure requirements are
Make sure requirements are
consistent across districts
consistent across districts
THERE AIN’T NO
THERE AIN’T NO
PERFECT ORDINANCE
PERFECT ORDINANCE
3. T
HR
OW
TH
E
3. T
HR
OW
TH
E
BU
MS O
UT
BU
MS O
UT
!!Remove members who
Remove members who
just don’t get it
just don’t get it
MZEA allows removal of
MZEA allows removal of
members for misfeasance
members for misfeasance
or malfeasance
or malfeasance
Appoint well trained new
Appoint well trained new
membersmembers
……this is tough if the city or
this is tough if the city or
village council is the ZBA
village council is the ZBA
BUILD A BETTER
BUILD A BETTER
BOARD!BOARD!