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

OKAY.OKAY.So what do we do about

So what do we do about this?this?

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!

Be kind and

Be kind and appreciative

appreciative of your ZBA –

of your ZBA –THEY HAVE A

THEY HAVE A TOUGH JOB!

TOUGH JOB!

But

above

all…

.

But

above

all…

.

Grant E. Bauman, AICPGrant E. Bauman, AICPPrincipal PlannerPrincipal Planner

www.region2planning.comwww.region2planning.com