Exceptions to the Rules and Rules for the Exceptions: Understanding Zoning Variances in Michigan

William E. Hosler

October 27, 2020

There is an exception to every rule when it comes to how you use and what you can build on a piece of real estate in Michigan. The rules are found in local zoning ordinances, and the exceptions are called variances. A variance is an approval by a local zoning board of appeals (ZBA) or similar authority for a property owner to avoid a limitation or requirement that would otherwise apply to their property. It is, in effect, official permission to "violate" an otherwise applicable zoning provision.

But obtaining a variance requires more than just a desire to do what you want with your property, zoning ordinance be damned. Rules apply to these exceptions, and obtaining a variance requires understanding the types of variances available and the justifications needed to get one.

Two Types of Variances in Michigan

Zoning ordinances place restrictions on two fundamental aspects of property ownership: how the owner can use their property and what they can build on it. Accordingly, variances in Michigan come in two primary forms: use variances and dimensional variances.

A use variance allows an owner to engage in activities on their property otherwise prohibited by the zoning code. Legal limitations on how owners can use their property dictate why you don't see factories on quiet, tree-lined, residential cul-de-sacs.

A request for a dimensional variance, also called a nonuse variance, seeks to modify zoning provisions that apply to the size, height, dimensions, and other aspects of structures that an owner can build on their property. Dimensional variances typically address yard setbacks, landscaping restrictions, parking requirements, and the square footage of buildings.

Two Justifications for Obtaining a Variance

When a property owner requests a variance from their local ZBA, they must strictly follow the procedural rules that govern their application. These can usually be found on a township or municipality's website and typically include notice to neighboring property owners, among other requirements.

But a variance request must also satisfy substantive criteria for a ZBA to consider granting it. The criteria vary, depending on whether the property owner asks for a use or dimensional variance.

Unnecessary Hardship

To obtain a use variance, a property owner must demonstrate that enforcement of the existing zoning limitations creates an "unnecessary hardship."

To establish unnecessary hardship sufficient to justify a use variance, the owner must present substantial evidence to the ZBA showing:

The property cannot reasonably be used in a manner consistent with existing zoning.
The landowner's plight is due to unique circumstances and not to general conditions in the neighborhood that may reflect the unreasonableness of the zoning.
A use authorized by the variance will not alter the essential character of a locality.
The hardship is not the result of the applicant's own actions.

Practical Difficulties

Obtaining a nonuse or dimensional variance requires proof that the existing restrictions create "practical difficulties" for the owner due to circumstances unique to the property. As with unnecessary hardship, the owner's practical difficulties can not be of their own making. Additionally, the owner must demonstrate:

The existing frontage, setback, bulk, height, and density requirements unreasonably prevent the use of the property for a permitted purpose.
The particular request, or a lesser relaxation of ordinance standard, would provide substantial justice to the landowner and neighbors.
The plight is due to the property's unique circumstances and is not shared by neighboring properties in the same zone.
The variance will not deprive adjacent properties of adequate light and air.
The variance will not increase fire danger or negatively impact public safety.
The variance will not diminish property values within the surrounding area.
The variance does not violate the spirit of the zoning ordinance.

A Variance Request Can Make or Break Your Property. Don't Go It Alone.

Much hangs in the balance when a property owner requests a variance. The outcome of the process determines what a property is worth, what it will look like, and how it can be used. Given the stakes, it is not an effort that owners should undertake without experienced counsel who understand how to maximize the chances of a positive outcome.

The real estate lawyers at Williams, Williams, Rattner & Plunkett have unmatched experience in land use and zoning matters and a lengthy record of success obtaining variances in cities, villages, and townships throughout the region. Our real estate experience rivals that of our large firm competitors, with the efficiency and responsiveness only found in a smaller law firm.

If you have questions or concerns about obtaining a variance for your property, please contact us today to arrange for a consultation.

William E. Hosler has more than 30 years of experience in general civil litigation and business law. His practice focuses on real property, title insurance, and municipal law.