A Property Owners Guide to Variance Requests in Michigan

It is a common misconception that once you own a piece of real estate, you can do whatever you want with it. The real estate lawyers at Thompson Legal recognize that property ownership often comes with unique challenges-such as zoning and use restrictions. Navigating local zoning ordinances is crucial for Michigan real property owners seeking exceptions—commonly known as variances. This article Thompson Legal, provides an insightful guide on variance requests in Michigan, exploring the types of variances, the authority of the Zoning Board of Appeals (ZBA), and the criteria for obtaining a variance.

What is a Variance Request?

A variance request is a formal way for property owners to be granted official permission to deviate from a local zoning provision that would otherwise apply. A variance request application is submitted to the municipality where the discretion to grant a variance lies with the zoning board. In Michigan, there are two primary types of variances that can be requested: Use Variances and Non-Use (Dimensional) Variances. Both Use Variance and Non-Use (Dimensional) Variances are discussed later in the article. 

What is a Zoning Board?

A zoning board, sometimes called the Zoning Board of Appeals (ZBA) is a regulatory part of the municipality that enforces land use and real estate regulations. The ZBA holds the discretionary power in deciding whether a variance should be granted, and their authority is outlined in the Michigan Zoning Enabling Act. The goal of a zoning board is to strike a balance between each property owner’s rights and the public’s right to a safe, secure, and orderly neighborhood.

Use Variances

Use variance is a request to engage in activities on your property that would otherwise be prohibited by your local zoning code. The most common use classifications would be residential, commercial, agricultural, and industrial. The standard for requesting a use variance is “unnecessary hardship” which is higher than that of a non-use (dimensional) variance. 

Non-Use (Dimensional)

On the other hand, dimensional variances, also known as non-use variances, modify zoning provisions related to the size, height, and dimensions of structures. Dimensional variances commonly address setbacks, landscaping, parking, signs, structures, and building dimensions.

Unnecessary Hardship

To obtain a use variance, a property owner must demonstrate unnecessary hardship. This involves proving that the property cannot reasonably be used according to existing zoning, the hardship is unique, the authorized use won't alter the essential character of the locality, and the hardship is not self-created. Variances are not intended to circumvent zoning ordinances without justifiable cause.

Practical Difficulties

For dimensional variances, property owners must prove practical difficulties due to unique circumstances. These difficulties must not be self-created, and the owner must show that existing requirements unreasonably prevent the property's permitted use. The variance requested should be the minimum necessary remedy and provide substantial justice, not adversely impact neighbors, public safety, or property values, and must align with the zoning ordinance's spirit.

Appealing a Denial

In the event that your request for a variance is denied, many local governments have a process for appealing zoning and land use decisions. If your municipality has a higher administrative authority, such as a Zoning Board of Appeals (ZBA) or a planning commission, you will be required to first appeal before them.  In Paragon Properties v City of Novi, the Michigan Supreme Court indicated courts should not hear zoning cases until all other administrative remedies for a rezoning denial have first been exhausted. This requires property owners to first appeal their variance denial through the Zoning Board of Appeals before seeking relief in the circuit court. However, if the court challenge is based on denial of constitutional rights or procedures, then the requirements to exhaust all administrative remedies does not apply, and one can immediately file in court.

Conclusion

Requesting a variance is a critical step that property owners should approach with caution and experienced legal guidance. At Thompson Legal, our experienced real estate lawyers specialize in land use and zoning matters, boasting a successful track record in obtaining variances throughout Michigan. If you have questions or concerns about obtaining a variance for your property, contact us today for a consultation. Our team is committed to navigating the complex landscape of zoning regulations to help you achieve a positive outcome for your property.

This blog is for informational purposes only. It is not intended as legal advice. In the event you would like to speak with a real estate attorney about your case Contact Us at (734) 743-1646 to schedule a consultation.

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