Zoning ordinances apply a uniform set of regulations to properties that can be very different in terms of topography, access and existing uses or buildings. The zoning variance is intended to avoid an unfair application of the zoning ordinance in unique situations.
Based on years of experience working with the zoning board of appeals, or ZBA, in various communities, we offer the following advice.
Dimensional variance vs. use variance: A dimensional variance is for a use that is permitted in the zoning district, but that 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.
Apply the correct standard for the type of variance: The standard for a dimensional variance is “practical difficulty,” which means 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 more difficult to meet, and requires “that the property cannot reasonably be used in a manner consistent with the existing zoning."
Write standards that make sense: Many zoning ordinances simply have copied the boilerplate standards used in other zoning ordinances or that 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?
It is up to the applicant to justify the variance: 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 deny the variance on the basis “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: 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. Input from neighbors can be helpful in considering whether the variance would be detrimental to adjacent properties in the neighborhood, but the ZBA should focus on the facts.
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: The ZBA’s authority is quasi-judicial in nature, so ZBA members should avoid having contact with applicants or neighbors outside of the meeting.
Is the need for the variance a result of the unique characteristics of the property, or is it just a disagreement with the ordinance?: A variance should only be approved when a unique circumstance of the property results in a practical difficulty or undue hardship. Some variance requests are simply a disagreement with the zoning ordinance, like a request to exceed the maximum size of accessory buildings, or the number of domestic animals allowed, or restrictions on a home occupation. Those objections should be referred to the planning commission and governing body for consideration of amending the ordinance.
The findings of fact must say why each factor is met: If a variance is challenged in court, the judge reviews whether the decision represents the exercise of reasonable discretion based on 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." 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.
Specifically define what is being approved: The approval should very specifically describe the character of the building that is being approved by variance. Better yet, incorporate drawings and elevations, and indicate the variance is being granted for that specific building at that specific location.
The ZBA can adopt findings of fact at a future meeting: Appeal of variance decisions is one of the most common types of zoning litigation. It is important to have the best “record” available for review by a court. For contentious or complicated decisions, the ZBA can make its decision, and direct that specific findings of fact be prepared for review and approval at a future meeting.
Get training and advice for the ZBA: These boards might meet only a few times a year. Training is available through Michigan State University Extension and the Michigan Townships Association, 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.
Try to 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 percent of variances that are granted should have been denied.
It is my belief that communities should strive to have most variance requests approved, because only those variances which have merit reach the ZBA. Achieving that goal requires the zoning administrator to seek alternatives that do not require a variance, discourage applicants from seeking a variance that should not be granted and for the ZBA to develop a track record of denying variances that do not deserve to be approved.