ZONING BOARDS OF APPEAL GONE 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

WHY THE ZBA? The purpose of a Zoning Board of Appeal (ZBA) is to recognize those rare circumstances where the requirements of the zoning ordinance just do not fit because of circumstances related to the land. RARE? HAH!

Where does the ZBA get its power? Article VI of the Michigan Zoning Enabling Act (MZEA) establishes ZBAs to “hear and decide questions that arise in the administration of the zoning ordinance” and to grant variances “so that the spirit of the zoning ordinance is preserved, public safety secured, and substantial justice done.” MCL ET SEC

So what’s the problem? Too many ZBAs have allowed the variance process to become a way for property owners to avoid the zoning requirements – just pay the fee, show up to a meeting and get your variance! ZBA – Zoning Board of APPROVALS?

So, what is the ZBA supposed to do? Grant variances only when, due to circumstances related to the property, strict adherence results in a practical difficulty (non- use) or unnecessary hardship (use variance) DECISIONS ARE BASED ON STANDARDS!

WHAT’S A STANDARD? Special/unique conditions related to the property (size, shape, topography, etc.) Special/unique conditions related to the property (size, shape, topography, etc.) Needed to preserve a commonly enjoyed property right Needed to preserve a commonly enjoyed property right Not self created Not self created No adverse effects No adverse effects Does not impair intent and purpose of ordinance Does not impair intent and purpose of ordinance MUST MEET ALL STANDARDS MUST MEET ALL STANDARDS

WHAT IS THE MOST COMMON REASON THE ZBA APPROVES A VARIANCE? 1. The request meets the standards of review. 2. The land could not be used in a reasonable manner unless the variance is granted. 3. No one showed up to object. QUIZ!

1. The request does not meet one or more of the standards of review. 2. The property can be used in a reasonable manner without need of a variance 3. A neighbor objects. QUIZ! WHAT IS THE MOST COMMON REASON THE ZBA DENIES A VARIANCE?

CASE STUDY Request 1: a homeowner wishes to construct an additional accessory structure in the rear yard; only 1 is allowed. No objectors. APPROVED !

CASE STUDY Request 2, same agenda. Owner wishes to construct a garage with a floor area exceeding ordinance maximums. Neighbor 1: He has a rebel flag for curtains! Neighbor 2: He lies naked in the rear yard and drinks beer! DENIED!

Other common reasons misused for approving a variance request Reason No. 1 Who creates and approves the zoning ordinance? It isn't the ZBA! This shifts policy making power from the planning commission and elected body to the ZBA THE ORDINANCE IS TOO STRICT!

Other common reasons misused for approving a variance request Reason No. 2 Really? Are you sure? Take this with a grain of salt If they are willing to back out over sign size, well, sayonara! IT’S THE ONLY SIGN THAT THEY MAKE!

Other common reasons misused for approving a variance request Reason No. 3 Again, really? Call their bluff, maybe? If that’s how they feel about your community and your rules, you may be better off without ‘em. IF YOU WON’T GIVE IT TO US, WE WILL GO ELSEWHERE

Other common reasons misused for approving a variance request Reason No. 4 But are the standards met? What if he/she doesn’t do a good job (may be too late to correct after variance is granted) But are the standards met? WE KNOW HE/SHE WILL DO A GOOD JOB

So we grant variances and don’t care about standards. So what? May lead to enforcement nightmares Punishes those who do follow the rules Ignores the efforts of the PC and elected body who created the ordinance Invites asking for forgiveness instead of permission Legal action

OKAY. So what do we do about this?

1. TRAINING Michigan Township Association (MTA), Michigan Municipal League (MML), Michigan State University Extension (MSUE), or Michigan Association of Planning (MAP) Michigan Township Association (MTA), Michigan Municipal League (MML), Michigan State University Extension (MSUE), or Michigan Association of Planning (MAP) Region 2 Planning Commission staff or a planning consultant Region 2 Planning Commission staff or a planning consultant Your attorney, if all else fails Your attorney, if all else fails WHAT YOU DON’T KNOW CAN HURT YOU!

2. REVIEW YOUR ORDINANCE Maybe the ordinance is too restrictive Look for other ways to regulate (e.g., established setbacks, height exceptions, permitted encroachments, overlays) Make sure requirements are consistent across districts THERE AIN’T NO PERFECT ORDINANCE

3. THROW THE BUMS OUT ! Remove members who just don’t get it MZEA allows removal of members for misfeasance or malfeasance Appoint well trained new members …this is tough if the city or village council is the ZBA BUILD A BETTER BOARD!

Be kind and appreciative of your ZBA – THEY HAVE A TOUGH JOB! But above all…. Grant E. Bauman, AICP Principal Planner