Chapter 2

Zoning Board of Appeals

Handbook

Zoning Board of Appeals Handbook

Published by the Michigan Municipal League

Written by Steve Langworthy

LSL Planning

Community Planning Consultants

Printed March, 2000

Reprinted July 2006, December 2015

ISBN 1-929923-02-3

Zoning Board of Appeals Handbook

About the Author:

Steve Langworthy is retired from the firm of LSL Planning. His more than 25 years of planning

experience includes six years as the Planning Director and Zoning Administrator for the city of

Kentwood and extensive experience in a variety of communities as a consulting planner. Steve

authored numerous master plans, zoning ordinances, and special studies for communities of all

sizes and levels of government.

Zoning Board of Appeals Handbook

Forward:

Along with the other appointed and elected municipal officials in your community, members of

a zoning board of appeals accept responsibility to protect the personality and vitality of your

community. To carry out their duties, these volunteers must digest a mountain of information

and negotiate a maze of delicate situations.

This handbook was written to help new zoning board of appeals members understand the

scope of their role and responsibilities, and to provide them with a basis of understanding in

order to capably perform their duties within the law. Topics covered include: the role of the

zoning board of appeals as a whole and the roles and responsibilities of individual members; an

explanation of the Michigan Zoning Enabling Act; the ZBA’s relationship to other municipal

bodies and individuals; how to identify and handle conflicts of interest; how to interpret a

zoning ordinance; types of variances; preparing for and conducting meetings; and guidelines

for making tough decisions.

As the state association of cities and villages, the Michigan Municipal League is committed to

providing a variety of educational resources for both elected and appointed municipal officials

to assist them in doing their jobs. The League is a non-partisan, nonprofit association working

through cooperative effort to strengthen the quality of municipal government and

administration.

This handbook is the latest step in our continuing effort to help municipalities meet the daily

challenges of governing. Our thanks go to community planning consultant Steve Langworthy

of LSL Planning for developing this text. His knowledge, creativity, insight and patience are

most appreciated. Contributing to the legal accuracy of this book were attorney Gerald A.

Fisher of Kohl, Secrest, Wardle, Lynch, Clark & Hampton and League Associate General

Counsel Sue Jeffers. The Information and Publications staff of the League added a measure of

common sense and smooth flavor.

The League’s goal is to produce publications that will help to make your job easier. We

welcome suggestions for additions to this publication and your comments in regard to all of

our publications. Let us know how we are doing and how we can be of further assistance.

Daniel P. Gilmartin

Executive Director

Zoning Board of Appeals Handbook

Introduction—The Job

Congratulations!

§ 1 Your appointment to the zoning board

of appeals (ZBA) is one that carries a

significant responsibility for protecting your

community and its future.

This handbook will provide you with

some hints about how to be an effective

member of the zoning board of appeals. It

will tell you about the laws and regulations

governing zoning and provide information

about some of the expectations and

methods you may use to prepare, make and

enforce your decisions.

During your term you will encounter a

wide variety of zoning related problems.

Knowing some of the intricacies of zoning

is only a part of your responsibilities. You

will also learn how to deal with people,

both applicants and neighbors, with

patience, tact and diplomacy. Knowing how

to act in stressful circumstances is one of

the most important parts of the job, and

one that is best learned through

experience. The

Zoning Board of Appeals

Handbook

is your head start on learning

how to deal with these difficult situations.

You are encouraged to seek other

sources for learning about the technical

details of zoning and related topics. These,

too, will be a significant part of your job as

a member of the zoning board of appeals.

The Michigan Municipal League can suggest

a number of documents that can help you

on your way, as well as an ongoing series of

courses you may find helpful.

What’s in a Name?

§ 2 Your zoning ordinance may have given a

different name to your board than the

zoning board of appeals, such as the Board

of Appeals, Board of Zoning Appeals, Board

of Appeals and Adjustment or some other

similar name. In townships this should not

be confused with the Zoning Commission,

which is a derivative of a planning

commission. Regardless of the name, the

duties and authority of the ZBA are largely

the same.

The Job

§ 3 The future of your community will be

greatly affected by the decisions you make

as a member of the zoning board of

appeals. Few voluntary, non-elected

appointments have the kind of power

granted to the ZBA. This is because it is one

of only a few bodies that can permit

someone to legally avoid compliance with

an adopted ordinance. The exercise of this

power is restricted by standards discussed

in greater detail below that are to be

applied in decision making.

It Begins with a Philosophy

§ 4 Becoming an effective ZBA member

begins with a clear philosophy of your

approach to the task. Perhaps you had a

desire to give something back to the

community, or something happened in your

neighborhood that disturbed you or you

wanted to help people. Most likely, you did

not get into the job for the money (you did

volunteer, after all).

Regardless of why you decided to

accept the appointment, to be an effective

member, your participation will require a

serious commitment of time and energy,

and a serious commitment to the laws

governing the decisions of the ZBA.

It may help to understand why the job

of the zoning board of appeals was created

in the first place.

Zoning Board of Appeals Handbook

What is a Zoning Board of Appeals?

§ 5 Early in the history of zoning it was

recognized that it was nearly impossible to

write a set of regulations affecting the

development of land that could be

universally applied. Many communities in

Michigan and throughout the country had

hundreds or thousands of parcels of land to

which zoning standards had to be applied.

As a result, it was clear that a means of

providing relief from the strict

requirements of the zoning ordinance was

needed for property owners with unique

conditions related to their property.

To provide an avenue of appeal, each

state’s zoning enabling acts required that

any community which adopted a zoning

ordinance have a zoning board of appeals.

The function of the ZBA was to be a

quasi-judicial body, to carry out two

principal functions:

1. To hear and decide appeals of

administrative decisions made in

implementing the zoning ordinance; and

2. To hear and decide requests for

variances from the strict terms of the

zoning ordinance. In addition, the ZBA

is occasionally called upon to interpret

the provisions of the zoning ordinance.

The Role of the ZBA

§ 6 As a member of the zoning board of

appeals, you will be dealing with one of the

most enduring elements of society – land.

Decisions based on the land nearly always

last forever because they are in place

regardless of the owner. Therefore, your

decisions can have a serious effect on the

use and value of land.

At the same time, you will be dealing

with people, both applicants and neighbors

affected by your decisions. You will find

that this can create uniquely challenging

situations. Consequently, your actions must

be based on the long-term interests of the

community which, in turn, must be guided

by the decision-making standards of the

zoning ordinance.

Every person who can meet the criteria

for relief has the right to seek relief from a

zoning ordinance requirement. If the

standards used by the ZBA are carefully

considered and followed, the integrity of

the ordinance should be maintained.

However, not following such standards

leads to problems. Too often variances are

granted simply because no one sees any

harm. The ZBA soon gains a reputation for

not following its ordinance. One merely has

to go to the zoning board of appeals to

obtain relief from the ordinance—getting a

variance is no problem. Eventually, the

offhand granting of variances harms the

community's ability to enforce the

ordinance. Moreover, poorly supported

decisions can, over time, destroy the

credibility of the zoning ordinance. It is up

to the members of the zoning board of

appeals to prevent this by strictly applying

the standards of the ordinance.

These decisions will not always be easy.

In some instances, you will know the land

owners, neighbors or applicants personally.

The key to acting in a responsible manner is

to act in ways that will allow you to treat

each person and property in a fair and

consistent manner.

Zoning Board of Appeals Handbook

Chapter 1

The Basics

§ 7 In the Introduction we noted that being

an effective ZBA member begins with a

clear understanding of the job and each

member’s approach to it. Two important

aspects with which you should be familiar

are the legal basis for the zoning board of

appeals and the relationship between the

ZBA and other bodies and officials dealing

with the zoning process.

The Zoning Enabling Act

§ 8 All zoning authority is granted by the

state through the new Michigan Zoning

Enabling Act, (PA 110 of 2006). Counties

that have adopted a zoning ordinance have

zoning authority over townships (but not

over cities or villages) which do not have

their own zoning ordinance. Cities, villages

and townships that have their own zoning

ordinances do not fall under county

authority.

The zoning enabling act defines the

membership, responsibilities and authority

of the ZBA. It also describes general rules

for the formation and operation of a zoning

board of appeals. The chart on the

following page outlines some of the

differences in the organization of the ZBA

at various levels of government.

Membership

§ 9 Qualifications for membership are

generally minimal. Members are only

required to be an elector and be

representative of the population

distribution and the “various interests

present” in the community.”

Although less common, but still

practiced, legislative bodies may also act as

the ZBA, but only in cities and villages. In

townships, an elected official may be a

member of the ZBA, but cannot be the

chair.

In addition to regular members, up to

two alternates may be appointed to the

ZBA. Alternates serve in the event of a

declared conflict of interest or absence of a

regular member. When called, alternates

serve until the application(s) is resolved. In

the case of an absence, the alternate stays

with the cases heard even if the absent

member returns.

Bylaws

§ 10 The enabling act also permits the

zoning board of appeals to adopt rules

governing their operation, commonly

referred to as bylaws. The bylaws should

specify certain responsibilities, such as

defining officers and their duties, quorum

rules, special meeting procedures, conflict

of interest procedures, and other aspects of

the ZBA’s operation. Bylaws are not part of

the zoning ordinance but are adopted by

the ZBA as its rules for operation.

Relationship to Other Bodies/Individuals

§ 11 It is also important to understand the

relationship between the zoning board of

appeals and others with responsibility in

the zoning process. Zoning responsibilities

are divided between several individuals and

bodies.

Zoning Act:

Michigan Zoning Enabling Act

2006 PA 110

MCL 125.3101 et seq.

Zoning Board of Appeals Handbook

Community

Number of

members

Less than 5,000 population—not less than 3 members

5,000 or more population—not less than 5 members

Membership

Planning commission member must be on the ZBA; elected official may

be on ZBA. In cities and villages, the elected body may act as the ZBA.

The Planning Commission

§ 12 The planning commission is given the

responsibility of drafting the master plan;

the legislative body must “approve the plan

for distribution,” and may elect to become

the adopting authority for the plan. After

preparing a proposed plan, the planning

commission must submit the proposed plan

to the legislative body for review and

comment. Before the adoption process can

proceed, the legislative body must approve

the distribution of the proposed plan. If it

does not, it must return the plan to the

commission with its objections. The

commission must then revise the plan until

it is accepted by the legislative body.

The long-term effect of this change to

the adoption process will have to be

determined. But even if the planning

commission is delegated the responsibility

of completing and adopting the master

plan, the legislative body should be involved

in all of the critical steps of the process in

order for the plan to be effectively

implemented.

The master plan is intended to serve as

a guide for the future development of the

community. The plan is used to indicate

locations for new development where

natural features and the environment are

not at risk, where community character will

not be diminished, and where expenses for

new roads and services will be at a

minimum. It is essential that any action

related to zoning, including those actions

taken by the zoning board of appeals,

should take into consideration the master

plan.

The planning commission is also

responsible for writing the first draft of the

zoning ordinance. This was done to ensure

a direct connection between the master

plan and zoning ordinance. Local control of

the use of land (with some exceptions, such

as some state land uses and federal land

Planning Act:

Municipal Planning Enabling Act

2008 PA 33

MCL 125.3081 et seq.

Purpose: to codify the laws regarding and

to provide for county, township, city, and

village planning; to provide for the

creation, organization, powers, and duties

of local planning commissions; to provide

for the powers and duties of certain state

and local governmental officers and

agencies; to provide for the regulation and

subdivision of land.

Zoning Board of Appeals Handbook

uses) is an accepted legal principle. Land

use is controlled through the separation of

land into various use areas, called zoning

districts. The rules governing these districts

are found in the zoning ordinance, which

contains provisions controlling the type and

intensity of development allowed.

The zoning ordinance should be

established and amended as guided by the

master plan. The future land use

classifications of the ordinance's zoning

districts are depicted on the zoning map

that is part of the ordinance. The density

and intensity planned for the land use

districts are translated to the uses

permitted, lot sizes and other regulations.

The courts of the State of Michigan do

not recognize the master plan as

authorizing land uses on its own. This

authorization is contained in the zoning

ordinance. However, the courts do lend

much more credibility to land use actions

supported by careful planning than those

actions that appear to have been taken

arbitrarily against an individual property

owner.

The Legislative Body

§ 13 The elected governing body of the

community has several responsibilities

related to the zoning board of appeals.

First, and most obvious, the members of

the ZBA are appointed or approved by

them, unless the legislative body itself

decides to act as the ZBA (cities and

villages only). Second, the legislative body is

responsible for providing the funds

necessary for the operation of the ZBA.

This includes per diem (or per meeting)

payments to members and other expenses

such as mileage for site visits, attendance at

conferences and training sessions,

educational materials and other costs

associated with the ZBA.

Finally, the legislative body is required

to adopt the zoning ordinance and any

subsequent amendments, based on a

recommendation from the planning

commission. Ultimately, the legislative body

decides what zoning regulations and

policies will be adopted and followed by

the community.

It is especially important for the ZBA to

recognize its role in relation to the

planning commission and legislative body,

particularly with respect to the writing and

adoption of the master plan and zoning

ordinance. There is no formal process for

the zoning board of appeals to play an

advisory role in determining planning

policies or zoning regulations. Accordingly,

it is not the role of the ZBA to attempt to

change those regulations or policies

through their actions. This, of course, does

not prevent the ZBA from communicating

their thoughts regarding the ordinance

during the course of performing its

functions.

The Zoning Administrator

§ 14 The zoning administrator is the

individual responsible for the day-to-day

administration and enforcement of the

zoning ordinance. In many communities the

zoning administrator is a valuable contact

between the ZBA and the applicant,

ensuring that all relevant materials are

provided, offering advice in filling out

application forms, and advising the ZBA on

important factual matters pertaining to the

requests before them. In some communities

the administrator is asked to provide

written, advisory recommendations

regarding applications.

In communities where staff or other

assistance is available, some of the roles

filled by the zoning administrator, including

submission of recommendations, may be

complemented or completed by these other

individuals.

Zoning Board of Appeals Handbook

Duties and Responsibilities of the Zoning

Board of Appeals

§ 15 The zoning board of appeals exercises

three basic roles or functions. These

include:

a) Interpreting the ordinance (text

and map),

b) Deciding appeals from

administrative decisions, and

c) Granting variances (use and non-

use).

The terms

appeal

and

variance

are often

used interchangeably, but in fact are two

entirely different concepts.

A variance, if granted, allows a

departure from a particular requirement of

the zoning ordinance.

An appeal is based on the fact that

someone has made a decision related to the

zoning ordinance, and another person

disagrees with that decision.

Conflicts of Interest

§ 16 Knowing about conflicts of interest is

important since the zoning act requires the

use of an alternate when a member has a

conflict. In some instances, failure to

declare a conflict of interest may result in

the removal of a ZBA member.

What Constitutes a Conflict of Interest?

§ 17 You probably have a conflict of interest

if:

 you are the applicant;

 a close relative is the applicant;

 a business associate, lender or

renter is the applicant;

 the proposal could allow you or a

business associate to receive a

financial gain or benefit;

 you are a planning commission

representative to the zoning

board of appeals and the matter

to be heard is an appeal from a

planning commission decision in which

you participated; or

If you have to ask…chances are others

are asking as well. If you are in doubt about

whether or not you have a conflict, it is

often advisable to take a conservative

approach and declare a conflict. This helps

to avoid a public appearance of unfairness.

You may also consider the possibility of

declaring a conflict of interest if your home

falls within a notification radius used by

your community for zoning board of

appeals’ actions. Since the sending of the

notice automatically presumes some degree

of interest, this fact should be recognized

by declaring a conflict, particularly if a

financial impact is likely.

Ultimately, the declaration of a conflict

of interest becomes a personal issue and

one that should be honored by the other

members. If in doubt about whether a

conflict of interest is present, it will

generally be better to avoid the perception

of a conflict, even though an individual

member may conclude that a conflict does

not exist.

What to Do

§ 18 In order to maintain public trust and

insure fairness, it is important to follow

some simple steps if a conflict is present.

The ZBA bylaws should address fully those

actions to be taken in the event of a

conflict of interest. Suggested actions are:

1. Declare the apparent conflict of

interest. If a member is aware of a

conflict prior to the meeting, the

staff/chair should be notified in order

to allow an alternate to be called. If an

alternate is called in, he or she serves on

that case until it is completed.

2. Generally, voting by the other

members on a conflict of interest is not

necessary. However, if the ZBA

adheres strictly to Robert's Rules of

Order for all meeting procedures (not

Zoning Board of Appeals Handbook

just conflicts), members should be

excused through a vote. However,

declaring a conflict of interest should

not be used as a means of avoiding a

difficult or uncomfortable decision.

3. Abstain from voting and do not

participate in deliberations, either as a

member of the ZBA, or as a "citizen."

Although no one can be prohibited

from speaking as a "citizen," the

comments from a fellow ZBA member

will likely be viewed by the audience as

being very influential and have the

appearance of bias. This does not

prevent the member from being

represented by an attorney, family

member or friend.

4. Once the conflict is declared, you may

wish (but have no obligation) to leave

the room. This will be a clear indication

to the audience that the member has

no part in the deliberation or decision,

and it avoids any perception by the

audience that the member is

attempting to influence the others. By

all means, the member with a conflict

should vacate his or her seat during all

proceedings involving the case.

Some Don'ts

§ 19

if you have a conflict of interest,

Don't discuss the proposal, either formally

or informally with any of the other

members.

Don’t use inside knowledge and

contacts. Make sure that minutes, staff

materials, etc., are obtained through the

same procedures as any other applicant. It

is best to have someone else collect this

information.

Don’t represent yourself if you are the

applicant. Have someone else perform that

function. It is acceptable to have other

family members, an attorney or a personal

representative speak for the member.

Interpretations

§ 20 The ZBA is authorized to issue an

official interpretation of the zoning

ordinance. Interpretations may be related

to either the text of the zoning ordinance

or to the boundaries of the zoning map.

Unlike legal opinions or recommendations

of consultants, an interpretation by the

ZBA establishes the meaning of the matter

being interpreted and is deemed to be the

actual meaning of the ordinance from that

point forward, unless the ZBA’s

interpretation is appealed to the courts.

Several rules of thumb may help in

making interpretations.

a) Base map interpretations on the

zoning ordinance itself and any relevant

historical information. Commonly, these

rules are of the “walk like a duck” variety.

In other words, if it appears as though the

zoning boundary follows a river, it should

be assumed to follow the river, or a road

right-of-way, or some other physical

feature. Where the boundary is unclear, the

ZBA should take into account past zoning

history (if any) and the potential effect of a

determination on surrounding properties.

b) Interpret the text of the zoning

ordinance based on a thorough reading of

the ordinance in order not to have the

effect of amending the ordinance.

c) Give weight to reasonable practical

interpretations by administrative officials if

applied consistently over a long period of

time.

d) Keep records of all interpretations.

Once an interpretation is rendered, it is the

official position of the community as to

that provision. Consistency in decision

making is important for the long-term.

e) Generally, if equally convincing

points are put forth by the zoning

administrator and an individual affected by

an interpretation, fairness dictates that the

person most affected by the interpretation

should prevail. In other words, where two

Zoning Board of Appeals Handbook

interpretations are reasonably equal, the

benefit of the doubt should be given to the

property owner rather than the zoning

administrator.

Once an interpretation is made, it is

advisable for the planning commission to

review the matter to determine whether or

not an amendment to the ordinance is

needed to further clarify the language (for

a text interpretation), or to review the

zoning map to determine a specific location

of a zoning boundary (for a map

interpretation).

Appeals

§ 21 The zoning board of appeals is

empowered to hear and decide appeals

from any person aggrieved by an

administrative decision. An administrative

decision is one made by a zoning

administrator or the planning commission,

or by the legislative body when they are

acting in an administrative capacity, (if, for

example, the legislative body approved all

site plans). Most often, appeals are the

result of a disagreement with a decision of

the zoning administrator, or, in some cases,

a person aggrieved by a site plan review

decision by the planning commission.

Appeals may be required to be filed within

a specific time period set in the zoning

ordinance.

The ZBA cannot hear two types of

zoning decisions. The first is an amendment

to the zoning ordinance (rezoning or text

change)—this is reserved for the legislative

body. The second type of decision is for

special land uses and planned unit

developments, which can only be heard by

the ZBA if the zoning ordinance specifically

allows for an appeal.

Although the ZBA may reverse or

affirm, wholly or partly, or may modify a

prior decision, its powers are generally

limited to determining whether or not the

official or body making the administrative

decision acted properly. The ZBA must

recognize that the zoning administrator or

planning commission has already made a

decision regarding the issue as part of its

delegated duties. The role of the ZBA is to

determine whether the decision was

authorized or supported by the zoning

ordinance.

In addition, the ZBA should not treat

the appeal as a new decision. Rather,

review of the decision should be limited to

the information that was available to the

body or person who made the decision

initially. Allowing testimony or evidence in

addition to that previously submitted is

inappropriate, unless the zoning ordinance

directs otherwise.

In those instances where the official or

body used proper procedures and standards,

the ZBA should uphold the decision, even if

the members personally disagree with the

result.

Some communities attempt to make

appeals and variances the same by allowing

an application to the zoning board of

appeals only after the denial of a requested

permit, such as a building permit or zoning

compliance permit. This can be an

inefficient and cumbersome procedure

since a permit application may require

submission of a full application for the

permit, even when it is obvious that some

requirement of the zoning ordinance is not

met and a variance will be needed before a

permit can be issued.

Variances

§ 22 A variance grants permission to depart

from a requirement or limitation of the

zoning ordinance. There are two types of

variances:

a) Nonuse variances (dimensional

variances)

b) Use variances

Zoning Board of Appeals Handbook

Nonuse or Dimensional Variances

§ 23 A nonuse variance, also known as a

dimensional variance, is a modification of a

provision or requirement of the zoning

ordinance authorized by the zoning board

of appeals when the strict or literal

application of the ordinance would cause

“practical difficulties” for the applicant.

Nonuse variance requests are typically

associated with modifications of required

yard setbacks, building heights, parking

requirements, landscaping or buffering

restrictions and related building or facility

placement provisions.

To obtain a nonuse variance, the

applicant must show that a

practical

difficulty

exists on the property by

demonstrating that the applicable review

standards are met. A detailed examination

of these standards is provided in Chapter 3.

Use Variances

§ 24 A use variance allows a use of land

that is not permitted in the district in which

the property is placed. Granting of a use

variance requires that the applicant

demonstrate that an “unnecessary

hardship” would be imposed if the owner

cannot use the property as requested.

Use variances are permitted in cities

and villages but limited in townships and

counties. According to the Michigan Zoning

Enabling Act, only the following townships

and counties are eligible to hear use

variances:

1. Those that as of February 15, 2006

had an ordinance that used the phrase "use

variance" or "variances from uses of land"

to expressly authorize the granting of use

variances; and

2. Those that granted a use variance

before February 15, 2006.

However, even if permitted and eligible

to hear use variances, the Zoning Enabling

Act allows community opt out of this

procedure.

To prohibit use variances the community

must adopt zoning ordinance language that

prohibits submission of use variance

requests.

From a community planning perspective,

the indiscriminate granting of use variances

is a poor zoning and planning practice.

Given the long-term implications, it is

important that the ZBA understand the

ultimate effects of use variances on the

master plan or zoning plan for the

community. Approval of a use variance can

change the overall land use character of a

particular area. That is why strict attention

to the use variance standards is necessary.

Following the Rules

§ 25 It is especially important that the

zoning board of appeals establish a

consistent method of processing

applications, conducting meetings and

handling other procedures. As noted

earlier, the ZBA should have a set of

written procedures, or bylaws, for those

rules of operation not covered in the

zoning ordinance.

Some common considerations follow.

 Incomplete applications

(inadequate site plan, fee unpaid,

etc.) should not be accepted, i.e.,

should not be placed on an

agenda.

 If public notice was not properly

completed, the process must be

stopped and a new process

begun using a correct notice as

to form, content and publication.

 Action should not be taken on

any application unless the

applicant or a representative is

present (unless legal time limits

dictate otherwise).

Zoning Board of Appeals Handbook

Conclusion

§ 26 Variances are not intended to relieve

requirements of the zoning ordinance that

are simply preventing applicants from doing

what they wish.

Instead, the zoning board of appeals

was intended to serve as a safety valve in

those relatively rare circumstances where

the application of the zoning requirements

results in a practical difficulty (for nonuse

variances) or unnecessary hardship (for use

variances). However, variances approved

without sufficient justification can turn the

safety valve into a leak. Eventually, this will

erode the overall purpose and effectiveness

of the zoning ordinance, particularly when

it is commonly known that the ZBA is likely

to approve virtually any request.

Zoning Board of Appeals Handbook

Chapter 2

Preparing for and

Conducting Meetings

§ 27 Membership on the zoning board of

appeals can mean either just showing up

for the meeting or being prepared to make

informed decisions. While it is difficult to

ask a volunteer to put forth an extra effort,

your agreement to serve is also a

commitment to do the best possible job for

your community.

It is difficult for any member of the ZBA

to reach a fair and impartial result without

a firm base of knowledge about the

matters on which he or she is asked to

decide. To gain this knowledge, you will

need assistance from the community’s staff,

the applicant and each member. There are

some positive “fact finding” steps you can

take to make sure you are ready to make

the best possible decision.

Information

§ 28 In order to prepare properly for a

meeting, you must review all available and

relevant information. At a minimum, this

will include copies of applications, site plans

and other supporting material. This material

should reach you early enough to allow

adequate time to study and prepare,

normally, at least one week before the

meeting.

Public Hearing Notices

§ 29 A public hearing is required for all

ZBA approvals (variances, interpretations,

and appeals). The notices differ slightly.

For variances, a notice of the request must

be published in a newspaper of general

circulation.

Notice shall also be sent by mail or personal

delivery to the owners of property for

which approval is being considered, to all

persons to whom real property is assessed

within 300 feet of the property, and to the

occupants of all structures within 300 feet

of the property regardless of whether the

property or occupant is located in the

community. If the name of the occupant is

not known, the term "occupant" may be

used in making notification.

The notice shall be given not less than 15

days before the date the application will be

considered for approval. The notice shall do

all of the following:

(a) Describe the nature of the request.

(b) Indicate the property that is the subject

of the request. The notice shall include a

listing of all existing street addresses within

the property. Street addresses do not need

to be created and listed if no such

addresses currently exist within the

property. If there are no street addresses,

other means of identification may be used.

c) State when and where the request will

be considered.

(d) Indicate when and where written

comments will be received concerning the

request.

Public hearings for interpretations and

appeals are the same, except that notices

to individual property owners other than

the applicant is necessary only if a specific

property is involved in the interpretation or

appeal.

Zoning Board of Appeals Handbook

Site Visits

§ 30 Visiting the site is a critical step in the

decision making process. Even if you have

lived in the community all your life, a site

will look different to you when a specific

request is made. Prior to the site visit you

should review any site plans or sketches

submitted as part of the application. This

review will allow you to gain a proper

perspective on the request and how it

relates to surrounding properties and to

the standards of review you are required to

use to reach your decision.

Some precautions must be taken when

doing site visits. First, all such visits should

always be made individually rather than as a

group. Meeting on site (even with less than

a quorum) presents several potential

problems.

 A site visit by a majority of the

membership of a decision making

body is a “meeting,” and must be

advertised in accordance with

the Michigan Open Meetings

Act, MCL 15.261 et seq., and the

requirements of the Americans

With Disabilities Act (ADA) must

be met.

 Practically, it is hard for the

visiting members to avoid talking

among themselves about the

proposal. Such discussions can

violate the spirit as well as the

letter of the Open Meetings Act.

Second, do not go onto the site unless

the property owner has granted specific

written permission or unless the site is

otherwise available to the public (such as an

existing shopping center). Verbal approvals

should not be relied upon as sufficient

permission. Written permission helps avoid

misunderstandings and problems with

trespassing accusations.

Refusal by the applicant to allow you on

the site can not influence your decision.

Many people are concerned about liability

or are simply determined to protect their

privacy.

If permission has not been granted and

you feel as though your decision cannot be

made without viewing the site, look for

other ways to get the same information.

This might include aerial photos or surveys.

You may also request that the applicant

submit photographs, slides or video tape

particularly for larger, inaccessible sites.

This information may be available from

community staff or you may ask for it from

the applicant. There are many ways to

gather the necessary information and you

should not make a decision until it is

obtained.

TIP: Consider adding a line to your

application form that allows the applicant

the option to grant permission for the

members to conduct a site visit.

You may feel free to request

information from the community’s staff.

Make sure whatever information you

receive is also distributed to each of the

other members. Similarly, written materials

received at home from applicants or others

The Michigan Open Meetings Act, MCL

15.261 et seq., was intended to make

sure that the decision making process

followed by government bodies always

takes place under the watchful eye of

the public. Even though you can simply

meet the

letter

of the act, it is just as

important that the

spirit

of open

meetings be observed.

Don’t look for

ways around the act; look for ways you

can make it work better.

Zoning Board of Appeals Handbook

should be provided to the community’s staff

for distribution to the rest of the members.

Finally, do not talk to the property

owner, neighbors or applicant outside of

the meeting. The intent of information

gathering is to ensure that everyone has

the same information on which to base a

decision. This is not possible if individual

members contact or are contacted by

others outside of the meeting.

If the applicant or others contact you,

be prepared to tell them that you are

required to conduct all of your discussions

only when the other members of the ZBA

are present. Encourage them to come to

the meeting (tell them when and where) or

ask them to submit their comments in

writing (tell them to whom and by what

date). If contact cannot be avoided, it

should be reported to the rest of the

members during the meeting, along with

the general content of the conversation.

Remember - you are only one person on

the ZBA; the only time you should act as

a member of the zoning board of appeals

is in the presence of the other members

at a posted meeting.

Before Leaving Home

§ 31 Make sure you have everything. Follow

this checklist.

1. Do you have your zoning ordinance

and other applicable ordinances, if any?

2. Have you examined the agenda and

related materials?

3. Have you written down your

questions?

4. Have you completed the site visit? If

not, at least drive by the site on the way to

the meeting.

5. Have you reviewed the standards that

will be used for each decision?

6. 6. Remind yourself that the purpose of

preparing for the meeting is not to make a

decision; it is only to gather the

information needed to prepare you for the

decision that is to come.

Meeting the Public

§ 32 Land use issues, as you will no doubt

discover, can bring out strong emotions.

Faced with a roomful of angry and

concerned people, you may sometimes find

it difficult to maintain the decorum and

professionalism needed. Although many

zoning boards of appeal follow Robert's

Rules of Order in one form or another,

there are other, more subtle aspects that,

while not unique to zoning, nevertheless

are important.

Being Fair

§ 33 The foremost concern of any member

of a public body should be to ensure

fairness for all concerned. To accomplish

this, it is helpful to keep some simple things

in mind.

 Everyone must have the

opportunity to speak and present

evidence at public hearings.

While some limitations may be

placed on this right, as described

later, no action should be taken

that would deprive a person of

his or her right to be heard

within the confines of applicable

rules of procedure.

 Recognize emotional responses

and treat them with concern and

understanding. Strong responses,

within limits, should be expected

and understood. Controlling your

own emotions is essential, even

if the comments get personal.

 One of mankind's greatest fears

is public speaking. Make an effort

to look beyond the mannerisms

Zoning Board of Appeals Handbook

and nervousness to find the

speaker’s message.

 Regardless of how many people

show up to oppose or support a

request, you must represent the

long term interests of the entire

community, not just those at the

public hearing. Further discussion

of this issue is presented later in

this chapter.

 Listen. Public meetings are your

chance to take the pulse of the

community and to learn more

about the neighborhood in which

a request is pending. Take

advantage of the efforts that

those attending the meeting

have made and learn as much as

you can.

Follow the Rules

§ 34 Playing fair means playing by the rules.

Having an effective set of meeting rules

helps provide a sense of professionalism

and ensures that meetings are orderly.

Rules do not need to be rigid. Nor should

they be too confining. Occasionally agendas

will need to be altered to take

unanticipated events into account.

Keeping a subtle balance between the

degree of formality required and the

informality that is sometimes needed is a

learned art. For example, applicants should

not be called by their first names. Doing so

gives the impression of favoritism, that the

person is “connected” in the community.

Hearing rules should be made a part of the

bylaws of the ZBA and a summary of those

rules printed on the back of the meeting

agenda so that everyone is aware of them.

Rules for Speakers

§ 35 You will soon learn that people do not

often come to a meeting in support of a

particular project. Most people have

concerns they wish to address, while others

are simply opposed to change in their

neighborhood. Having meeting rules for

speakers are especially valuable when there

are many people who wish to speak.

Without a few basic rules (which should be

approved by vote of the ZBA) it would be

easy for one or two people to dominate

the meeting, thus depriving others of the

chance to speak their minds.

 Direct comments to the chair.

This rule can help avoid debates

between members of the

audience, between the presenter

and the audience, and between

ZBA members and the audience

or presenter. It also helps ensure

that the chair controls the

meeting.

 Limit speaking time, when

necessary. If there are many

people who wish to speak, it is

appropriate to limit the time of

each speaker to 3-5 minutes,

with the exception of the

applicant. The applicant should

be given as much time as needed,

within reason, to present his or

her case. During the public

comment period, the applicant

may wish to respond to

individual issues or questions

raised. It is generally best to ask

that the applicant respond to (or

rebut) those questions after all

comments have been received.

 Limit the number of times one

person may speak. Generally,

each person needs to be given

only a single opportunity to

speak. At the discretion of the

chair, persons may be allowed to

speak a second time to respond

to earlier comments. However,

the chair should emphasize that

repeat comments are not

desired. Your rules may also

require a sign-up sheet for those

persons wishing to speak, with

Zoning Board of Appeals Handbook

the chair only recognizing those

who have signed the sheet.

 The chair may also ask if there is

a spokesperson for the audience,

and ask that the spokesperson

speak for others present who

agree with his or her point of

view. The chair should allow

those for whom the

spokesperson is speaking to be

recognized, either through a

show of hands or by standing.

The spokesperson may be given

additional time in recognition of

his or her role.

 After the public hearing is

closed, it should remain closed.

Further comments should not be

accepted unless specifically

requested by a member of the

ZBA.

And the Applause Meter Says...

§ 36 Zoning cannot be a popularity contest,

decided by a show of hands in the audience

or names on a petition. Many zoning

approvals require public input, usually in the

form of a hearing. The dilemma in which

most decision makers find themselves is

trying to determine what weight to give

public comments and complaints.

It will quickly be obvious to you that

most people do not generally come to a

meeting in support of a particular project.

Most have concerns they wish addressed or

they may simply oppose any development.

Some may come to complain about things

having little or nothing to do with the issue

at hand.

While public input is a valuable part of

decision making, the ZBA cannot simply

mirror the wishes of those who come to

the meeting or send letters. Your job is to

follow the standards and requirements of

the zoning ordinance. You are obligated to

protect the interests of the applicant, those

having a direct interest, and the entire

community, not simply the desires of those

who happen to attend the meeting.

If it were simply a matter of counting

hands in the audience, only one ZBA

member would be needed to count the

votes or read the applause meter. Simply

because a roomful of people shows up to

oppose a project, this is not a reason for

denial. Similarly, petitions, letters and other

written expressions of concern are useful,

but only to the point where they provide

relevant information.

Ultimately, the role of the public is to

provide information to the decision maker.

The public can provide a unique perspective

on an issue, which may create the need for

further study by the community or identify

additional information to be provided by

the applicant.

Making everyone happy in most cases is

impossible, and probably shouldn’t be tried.

One of the most difficult aspects of

planning and zoning is the need to balance

the various, often competing, interests of

property owners and residents. Michigan

law dictates that the public has a legitimate

interest in maintaining the important

health, safety and welfare aspects of their

neighborhood and in having their property

values protected.

“

My home is my castle

” is not an idle

remark. Those who follow the NIMBY and

BANANA principles sometimes represent

this view. The

NIMBYs

believe that the

project is well designed, and needed, but

located in the wrong place. Not In My

Back Yard is their battle cry.

Others may believe that the project

should not be built anywhere in their

community, or perhaps anywhere at all.

Their motto is Build Absolutely Nothing

Anywhere Near Anything—

BANANA

On the other hand, we are also told

that owners of property have a right to a

reasonable return on their investment and

Zoning Board of Appeals Handbook

that zoning cannot unreasonably deprive

the owners of that return.

Satisfying all of these conflicting views

is simply not possible. The intent of zoning

is to avoid the necessity of trying to judge

between them. Instead, zoning decisions

should treat each person, property, and

point of view in a fair and consistent

manner. It is not the responsibility of the

ZBA to create zoning classifications for

rezoning property. Rather, the ZBA must

merely determine whether, after

considering all evidence presented, the

applicant has satisfied the necessary level of

proofs for the particular case in order to be

entitled to relief.

Rules for ZBA Members

§ 37 As members of a public body, you

should follow the same set of rules when

presenting yourselves to the public.

 All comments should be directed

through the chair. Just as the

audience must be recognized by

the chair, so too should the

members. Not only does this

respect the role of the chair, it

also sets an example for the

audience to follow.

 All deliberations should be in the

open. This is a strict legal

requirement. It is important that

the citizens view the zoning

board of appeals as an open, fair

and deliberative body.

Remember, people are generally

suspicious of government. Don't

add substance to that perception.

 Stay in the public eye. Do not

hold private conferences prior to

meeting. Don't meet in a group

in a small room or other place

outside the meeting chamber.

When arriving at the meeting,

stay in the chamber. While

socializing is acceptable, make

sure the citizens do not get the

wrong impression.

 Speak up. Make all of your

comments aloud during the

deliberations. If you have a

question, ask the applicant or the

chair, rather than your neighbor.

Don’t allow yourself to be

caught up in private discussions

with other members.

 Make all of your comments

loudly enough so everyone can

hear.

 Express your opinions. Don't just

vote without letting everyone

know why you are voting,

whether for or against the issue.

Your comments may help others

decide (or change their vote). It

also lets the applicant and the

audience know the strengths or

weaknesses of the proposal.

Moreover, it may add to the

record if the case goes to court.

 Do not always attempt to

answer every question. Some

comments cannot be answered

and may be asked just to express

frustration. When this happens,

calmly try to narrow questions

down to specifics. Once you get

a handle on the real problem,

you may be able to suggest a

solution.

It is also important that

neither the chair nor members of

the ZBA attempt to answer

questions from audience

members that are better

answered by the applicant.

 If things get out of hand, take a

recess. Long evenings and

emotional topics can make for

short tempers. A breather may

be helpful.

Zoning Board of Appeals Handbook

 Do not feel compelled to make a

hasty decision the night of the

hearing. Everyone should feel

comfortable with his or her vote.

If he or she does not, obtain

whatever additional information

is needed before proceeding

with the decision.

 Always use the review standards

of the zoning ordinance. The

standards are your guarantee of

reaching fair, consistent and

reasonable decisions. Failing to

follow the standards of review

can easily lead to discriminatory,

subjective and inconsistent

decisions.

The Experts Say...

§ 38 The question may also arise about how

much influence staff reports and opinions

should have on a decision. In most cases,

staff members are trained in their various

fields and are providing their professional

opinion. Consequently, their advice and

direction are likely to be useful and should

be taken seriously. However, that advice

and direction should be supported by the

facts and by application of the ordinance

standards just as the ZBA’s decisions are

expected to be. The professional’s opinions

of how the facts relate to the standards

may differ from the ZBA’s. But ultimately,

it is the decision of the zoning board of

appeals that will stand.

Keeper of the Gavel

§ 39 The chair is entrusted with enforcing

meeting rules. Having a strong chair is

important both to the operation of the

ZBA and to public’s perception of their

professionalism. The role of the chair is to

maintain order throughout the meeting.

The chair should announce each agenda

item and note the rules that apply to the

hearing. During the meeting, the chair

should ensure that courtesy is maintained

and that speakers are not interrupted.

Keeping Faith with the Public

§ 40 Too often, people feel that

government works against them rather

than in their best interests. While you will

not always be able to satisfy everyone, you

can make sure that the public knows that

they have been heard and that you are

acting responsibly. Following rules of

fairness, preparing for meetings and making

effective decisions can affirm the

confidence placed in you by those who

appointed you and those whom you serve.

Making Your Decisions Stick

§ 41 It won’t matter how much attention is

paid to the principles of the previous

chapters if the decisions made are not

properly documented. New members may

have a tendency to rely on those who have

the most experience to remember past

actions. There is no doubt that their

memories are valuable, but their recall may

not be complete. The only reliable method

of documenting actions is the written word

and exhibits.

Meeting Minutes

§ 42 In smaller communities, keeping

minutes may be one of the least glamorous

parts of building a written record. The task

of keeping minutes should be taken

seriously. There are no firm rules or

formats for minutes, but there are some

basic principles. As a minimum, section 9 of

the Open Meetings Act, MCL 15.269,

requires the minutes to show the date,

time, place, members present, members

absent, any decisions made and all roll call

votes taken. In general, minutes should

contain enough detail so that a person not

present can understand:

 What matters were discussed

(the nature of the request, applicant,

location);

Zoning Board of Appeals Handbook

 Receipt of any correspondence

or other communications on the

matter (including name and address,

if known, and general content);

 Who spoke at the meeting and

the general content of his or her

comments (including name and

address);

 What action was taken by the

ZBA (including the motion, vote and

any conditions attached to approved

applications); and

 Why an action was taken and

how the standards of review of the

zoning ordinance were or were not

met, i.e., the detailed findings that

support the decision.

One of the reasons that minutes are

especially important has to do with the

appeal procedure that occurs once the ZBA

has made its decision. As noted earlier,

there are no other levels of review by the

community itself after the zoning board of

appeals. The next avenue of appeal is to the

circuit court of the county in which the

property is located.

The zoning enabling act directs the

circuit court to decide an appeal on the

basis of the record presented by the ZBA

and the applicant. In other words, the only

information seen by the court will be the

written record created at the ZBA hearing.

Accordingly, it is essential that the ZBA

provide a suitable written record of the

proceedings.

Motions

§ 43 One of the important features of

documenting decisions is the record of the

action taken, as evidenced by the specific

motion and vote. There are several essential

elements of a motion:

 a maker and seconder;

 a description of the nature of

the request;

 the action taken (approval,

approval with conditions, denial,

postponement of the decision);

 any conditions attached to

affirmative decisions; and,

 the reasons for the action taken

(the standards of review and how

they were or were not satisfied)

based upon the facts and evidence

presented at the hearing—the

findings that support the decision.

Some ZBAs have found it useful to have

a blank format to help them word their

motions. This can be an effective practice,

as long as the motions are not completed

prior to the meeting. Having staff or legal

counsel prepare a motion or several

motions in advance can create the

perception that decisions have already been

made if a case is highly controversial, and is

likely to go to court, there may be a desire

to have legal counsel assist in formulating

the language of the decision. If such

assistance does occur, consideration should

be given to seeking such assistance on a

decision granting the relief requested as

well as a decision denying the relief.

Some hints about motions:

§ 44

 Be sure everyone is clear on the

motion by restating it. Do not

ask the person writing the

minutes to “clean it up later,” or

say, “you know what we want to

say.” Take the time to get the

wording right. Have the person

who is writing down the motion

read it back to ensure its

accuracy.

 Include specific references to the

ordinance’s review standards. If

discussion on the issue is

thoroughly documented and

referenced in the minutes, they

may be adequate to represent

information related to

Zoning Board of Appeals Handbook

compliance with the standards of

the ordinance. Otherwise, a

summary of the discussion on the

standards is appropriate.

 Properly stated and supported

motions are particularly

important. Simply referring to

the standards of review is not

enough; saying a standard is met

doesn’t make it so. A motion

that states “this variance is

approved (or denied) because it

meets (or does not meet) the

standards of Section ____” is not

sufficient. There must be enough

information presented to

indicate specifically which

standards were or were not met,

and the reasons, in terms of the

specific facts and evidence

presented, the ZBA made the

finding.

 Conditions may be imposed on

any affirmative decision.

Conditions attached to a decision

should have a clear purpose: to

ensure that the standards used

to make the decision are met

other words, the condition

should strengthen the decision

to grant relief. Any condition

placed

on an approval must have

a direct relationship to one or

more of the specifications stated

in the zoning enabling act for

conditions.

One informal way to test the

appropriateness of a proposed condition is

to review the decision without the

condition in place. For example, one of the

review standards noted in Chapter 3 is

“(T)he variance will not be injurious to the

neighborhood or otherwise detrimental to

the general welfare.” If, during their

deliberations, the board members become

concerned that the approval of a variance

could have an adverse affect on adjacent

properties, a possible condition might be a

requirement that a fence or landscaping be

installed. If the fence or landscaping were

not required, this review standard would

not be met. Accordingly, this condition

would be an appropriate one to attach to

the approval.

 If the motion includes the need

for further action, it should state

who will be responsible to see

that action completed. For

example, "the required

landscaping shall be reviewed

and approved by the zoning

administrator.”

Findings of Fact

§ 45 It is worth emphasizing the obligation

to make Findings of Fact. Findings of Fact

are embodied in a concise statement of the

action taken by the members, and include

the reasons for the decision, including the

specific facts and evidence supporting the

decision. In the absence of such findings, it

is quite difficult for a reviewing court to

sustain the decision of the ZBA.

The Findings, which are part of the

minutes, are not official until reviewed and

adopted by the ZBA at the next meeting, or

certified as approved at the same meeting.

One reason this is important is that the

applicant or other person disagreeing with

the decision has a specific time limit in

which to file an appeal to the circuit court

(30 days). The clock on the time limit does

not begin ticking until the minutes of the

meeting at which the action was taken are

officially approved.

If the ZBA only meets on demand, or

infrequently, another option would be to

schedule a meeting after the minutes are

completed to review and adopt them.

Post-Decision Documentation

§ 46 Once the decision is made, some

administrative steps should be taken to help

complete the record. The applicant and

Zoning Board of Appeals Handbook

secretary of the ZBA should each sign and

date 2-3 copies of the site plan or sketch

submitted as part of the application. The

applicant should keep one copy and the

community at least one other. This provides

a record of what was approved and when.

A copy of the minutes should be sent to

the applicant following review by the

approving bodies along with a letter

specifically noting the action taken by the

ZBA, including any conditions placed on the

approval, if appropriate.

This letter may include further

instructions regarding the proposal. For

example, if a variance was granted, the

letter may state that a site plan approval by

the planning commission is necessary prior

to issuance of a building permit.

Record Retention

§ 47 The community’s records for each

application should include, at a minimum:

 Relevant pages of minutes at

which the proposal was

discussed;

 Staff notes, meeting notes,

correspondence, telephone

conversation notes, etc.;

 Copy of the application and

supporting material;

 Approved/signed copy of the site

plan; and

 Follow-up correspondence (as

noted above).

If You Build It, We Will Come...

§ 48 ...to make sure it complies with the

approvals that were granted. Someone

should be given the direct responsibility to

make sure that any conditions or changes

required by the zoning board of appeals are

accomplished. Sending the building official

and zoning administrator a copy of the

approved application and meeting minutes

could help this process.

Remember, building a complete record

is important. Should a decision be legally

challenged, the written record will provide

the background needed to help defend the

decision of the ZBA. Also, a suitable record

of past actions is needed to ensure that

decisions are implemented and that they

are enforced over a long period of time.

Reliance on someone with a good

memory is not enough.

Zoning Board of Appeals Handbook

Chapter 3 -

Making the Tough Decisions

§ 49 In these days of increasing litigation

and public participation, it is not enough to

approve or deny an application for a

variance or appeal because of a vague

notion that the request is or is not a good

idea, or that it will hurt the neighborhood,

or make things better. If challenged, any

decision must have a solid, well-supported

foundation.

Decisions related to zoning are rarely

easy. And, they are not usually a matter of

right or wrong. The duties of the zoning

board of appeals require a balancing of the

needs of the community and the rights of a

private property owner.

 The community has a strong

interest in maintaining the integrity

of the rules under which zoning

operates, through the zoning

ordinance. Variances granted

without proper foundation can

eventually, or even quickly in some

cases, lead to a weakening of the

ordinance.

 On the other hand, private

property owners do have certain

rights to use their property and the

inappropriate application of the

zoning ordinance to that property

should not deprive them of those

rights.

Proper decision making starts with the

basics: knowledge of the zoning ordinance,

knowledge of relevant case facts and using

review standards to reach a decision.

Knowledge of the zoning ordinance

§ 50 While it is not necessary for each

member to know the intimate workings

and details of a zoning ordinance, they must

be familiar with the relevant parts of the

ordinance when reviewing applications. But

more important, it is essential that each

member understands the purpose and need

for the regulation being discussed.

One of the standards of review typically

applied to variance requests asks that the

decision not impair the intent and purpose

of the ordinance. If the intent and purpose

of the regulation would be materially

affected, it is possible that the variance

would not be appropriate. For example,

one of the recognized purposes of a side

yard setback is to provide access for safety

personnel to the rear of a building. Should

a variance be permitted that eliminates this

access, the intent and purpose of the

ordinance would not be fulfilled.

Knowledge of Relevant Case Facts

§ 51 Facts are critical to good decision

making. Sources of facts include:

a) The application and supporting

materials;

b) The master plan or other relevant

governmental plans;

c) Staff and agency reports regarding

impacts on public services, natural

resources, character of the area, traffic

and parking, and others;

Intent and Purpose

A front yard setback variance is being

considered by the ZBA. A new member

asks, “Why can’t the building be built all

the way to the property line?”

What would be your answer?

Zoning Board of Appeals Handbook

d) A visit to the site to see the physical

characteristics of the property and

adjacent parcels (see Chapter 2) and;

e) Public hearing comments.

However, what is a fact is not always

clear. Sometimes it will be necessary for

the members to use their own experience

and common sense (a concept not often

applied to zoning).

Use of Ordinance Standards

§ 52 Following an effective and consistent

decision making process is one of the most

important methods of supporting your

decisions. Proper and consistent use of the

standards of the zoning ordinance or other

ordinances is essential. If all ordinance

standards and state law standards are met,

the application must be approved. Before

any variance should be approved, the

applicant should be required to

demonstrate that either a practical

difficulty or unnecessary hardship exists.

While these terms are sometimes used

interchangeably, they are, in fact, distinct

and different terms.



Practical difficulty

is applied only

to nonuse, or dimensional

variances;



Unnecessary hardship

is relevant

only for use variances.

The wording and number of standards

will often differ from one community to

another, but the following standards have

been considered by various court decisions

and are common to ordinances.

Standards for Nonuse or Dimensional

Variances

§ 53 Granting of a nonuse variance requires

the existence of a practical difficulty, which

is demonstrated by showing that:

Special or unique conditions and

circumstances exist which are

peculiar to the land, structure, or

building involved and which are not

generally applicable to other lands,

structures, or buildings in the same

district.

§ 54 Meeting this standard requires the

requested variance to be related to the

characteristics of the property and not to

the personal situation of the applicant.

Should a variance be granted because of a

perceived special condition related to the

applicant, that condition would no longer

exist if the applicant leaves the property.

But the variance remains with the land.

Similarly, trying to distinguish between

individual circumstances related to

individuals is nearly impossible. Nearly every

person has some situation that may

consider unique. You are not expected to

be able to draw a line between various

applicants’ special conditions.

This dilemma cannot be resolved by

restricting the approval to a particular

individual. Variances, like other zoning

approvals, cannot be restricted solely to the

benefit of or use by a specific person.

Variances, once granted, run with the land,

not with the property owner.

Special conditions or circumstances that

are related to the property are generally

physical characteristics that may normally

include:

 exceptional narrowness,

shallowness or shape;

 exceptional topographic

conditions or other extraordinary

situations related to the

property; or

 use or development of the

property immediately adjoining

the property in question.

Also, the characteristics of the property

asserted as the basis for relief must not be

common among other properties in the

same district or vicinity. As with all

Zoning Board of Appeals Handbook

variances, the principle is that the variance

is needed to relieve a practical difficulty

caused by the unique conditions present on

the land. Common conditions or situations

should be addressed by a change in the text

of the ordinance, rather than by the

granting of individual variance applications.

2. A literal interpretation of the provisions

of this ordinance would deprive the

applicant of rights commonly enjoyed by

other properties in the same district

under the terms of this ordinance; and

that the variance is the minimum

necessary.

§ 55 Property owners are given certain

rights to use their property within the

limits allowed by the zoning ordinance. If

the conditions present on the property are

such that owners are deprived of these

rights, the zoning board of appeals should

find this standard (but not necessarily the

variance) in favor of the applicant.

However, this does not entitle the applicant

to the maximum benefit that might be

available. For example, while the ordinance

provides that property owners may have

accessory buildings, it does not grant the

authority to allow any size building desired

by the applicant.

This standard also permits the ZBA to

modify the request of the applicant to

accommodate the special condition or

circumstance but only approve the amount

of variance that is necessary to do so. For

example, an applicant may wish to

construct a garage closer to the lot line to

avoid a large tree. The ZBA could approve a

variance that would miss the tree, but in

order to protect an adjoining property, not

come as close to the property line as

requested.

3. The special conditions and

circumstances do not result from the

actions of the applicant.

§ 56 This standard, often referred to as

self-created, is often misunderstood and

the subject of differing opinions. There are

circumstances when the applicant has

clearly taken some action creating a need

for the variance. For example, if an

applicant splits a lot which previously

conformed to the requirements of the

zoning ordinance into two smaller ones,

one or both of which then do not meet the

ordinance, the action is clearly self-created.

On the other hand, a buyer of a lot that

cannot be developed without a variance

may ask that the ZBA grant a variance to

allow use of the lot. In this case, the

applicant did not take an affirmative action

by creating the lot. Accordingly, this

standard should not be used as a reason for

denial (although the variance still must

meet the other standards of the ordinance).

4. The granting of the variance will be in

harmony with the general purpose and

intent of this ordinance.

§ 57 While the intent and purpose portion

of this standard may sometimes seem like a

catchall phrase, it does have meaning. The

construction of the zoning ordinance was a

carefully considered process that was

begun by the planning commission,

reviewed by the public and adopted by the

legislative body. Each provision of the

ordinance has a reason for its existence and

it is important that the ZBA understand

that reason and not act to impair that

purpose.

Whether the ZBA agrees or disagrees

with any provision in the ordinance is

irrelevant. The ZBA's function is to enforce

the provisions of the ordinance, except in

very specific instances where conditions

Zoning Board of Appeals Handbook

exist that would make compliance with the

requirements impractical. Those conditions

are defined by the review standards of the

ordinance.

It is equally important that the zoning

ordinance be reviewed frequently to ensure

it is kept current and relevant to today’s

conditions. This includes making sure that

binding court rulings are included and new

legislation recognized. Often, an outdated

ordinance will tend to generate additional

variance requests.

One way the ZBA can help keep the

ordinance current is to review its decisions

at the end of each year to determine if

there are provisions of the ordinance that

are consistently being requested for

variances. If the review highlights some

particular parts of the ordinance, it may be

an indication that these provisions need to

be updated.

A joint meeting with the planning

commission to discuss these provisions will

be useful. One of two outcomes is possible.

The planning commission may agree that a

provision needs updating and begin the

actions necessary to amend the ordinance.

Or, the commission may determine that the

ordinance does not need to be updated and

that the provision should remain

unchanged. If this is the outcome, the ZBA

should respect that decision and only

approve variances in those cases where the

standards of review are clearly met.

5. The variance will not be injurious to the

neighborhood or otherwise detrimental

to the general welfare.

§ 58 As with any zoning action, the result

of the proposed variance should not be

harmful to adjacent properties. Potential

harm could be in the form of restricted

access or view, noise, lights or any other

effect not normally experienced by

property owners in similar circumstances.

While the opinions of surrounding

property owners are useful, they should not

be given absolute weight. The role of the

public is not to give their blessing or veto,

but to provide the ZBA with information

useful to its decision making process. As an

illustration, a current adjoining property

owner may be a relative or close friend and

not object to a variance. But since the

variance goes with the land, the next

property owners may find themselves with

an objectionable situation.

On the other hand, it is appropriate for

the ZBA to take the comments of the

public into consideration to determine

whether or not the variance may adversely

affect nearby property or the

neighborhood. (See Chapter 2.) Note,

however, that simply because a variance is

not harmful to the neighborhood does not

mean that it meets all of the other

applicable standards.

6. The spirit of this ordinance shall be

observed, public safety secured and

substantial justice done.

§ 59 The concepts of this standard, though

broad, are important. Observing the spirit

of the ordinance will mean that the ZBA

understands the potential effects one or

several variances could have on the

effectiveness of the zoning ordinance. For

example, if the ZBA’s reputation is one of

easy approvals, applicants are more likely to

seek variances in other than special

conditions and circumstances.

“Public safety secured” indicates that

the variance, if approved, will not create an

unsafe condition.

While “substantial justice” directly

addresses fairness to the applicant, it also

applies to others who might be affected by

the variance, such as neighboring property

owners. Often the initial expectations of

neighbors are that the ZBA will follow the

Zoning Board of Appeals Handbook

requirements of the zoning ordinance. The

substantial justice requirement dictates that

the variance should not be granted if it

would undermine the purpose and intent of

the zoning ordinance as it relates to

adjoining properties. This includes a

consideration of the extent of variance to

be granted. In this context, substantial

justice requires the variance to be the

minimum necessary to afford relief.

The ZBA’s Reputation

A zoning board of appeals known for

easy approvals may find itself barraged

with variance requests. As the word

spreads that the ZBA grants almost any

variance, the attitude among builders,

attorneys, planners, and others who

frequently advise property owners is,

“Don’t bother trying to meet the zoning

ordinance, All you need to do is apply for

a variance and you will get it.”

Standards for Use Variances

§ 60 As noted in Chapter 1, a use variance

allows a use of land that is not permitted in

the district in which the property is placed.

Because this type of relief is so significant,

granting of a use variance requires the

existence of an unnecessary hardship, which

is demonstrated by showing that:

The property could not be used (be

put to a reasonable use) for the

purposes permitted in that zone

district.

§ 61 The principle behind a use variance is

that it is necessary because the property is

not usable as it is zoned. Therefore, a

thorough review is needed to first establish

that none of the uses currently allowed in

the district, either as permitted by right or

through a special land use, are appropriate

for the property. While it is true that

financial considerations are not generally

the subject of review for variances, this

standard may be satisfied by a finding that

the property would essentially be valueless

if an attempt were made to develop it as

zoned.

Part of this review will require

determining if the property can be

reasonably used for any of the uses

permitted in the district. This does not

mean that the use has to be the most

profitable, or the use proposed by the

applicant. It only requires a finding that

there is one or more uses permitted in the

district which could reasonably be placed

on the property.

The plight is due to unique

circumstances peculiar to the

property and not to general

neighborhood conditions.

§ 62 This standard is generally similar to

that for nonuse variances, particularly with

respect to the necessity for having unique

circumstances that are specific to a

property and not related to the applicant’s

personal situation. The other important

aspect is the requirement that the situation

on the property not be common in the

area. If conditions are common to the area,

a use variance would not be appropriate

because the area should be reviewed by the

planning commission to determine if the

zoning for the entire area should be

changed. But that is the function of the

planning commission and not that of the

zoning board of appeals.

The use would not alter the essential

character of the area.

§ 63 Probably the most difficult aspect of

this standard is determining what the

essential character of an area is, and if the

Zoning Board of Appeals Handbook

use variance is approved, what effect might

the variance have on that character.

One of the easiest ways to determine

the essential character of an area is

through a site visit to examine the area and

see the various land uses that exist.

In some cases the character may be

evidenced simply by the dominance of one

land use over any others. In others it may

not be as obvious. For example, some areas

may have a wide variety of uses, occupying

different sizes of lots. Viewing the area

may not directly lead to a conclusion as to

the character of the area and may require

some degree of judgement.

Another way to determine the

character of an area and the possible effect

of a use variance is to examine the

community’s master plan. The plan may

clearly indicate the existing or intended

character of an area. The ZBA may also

seek the advice of the planning commission

to help interpret the master plan, or to

provide guidance when there is no plan or

if it is out-of-date. Any opinion of the

commission is simply advice, and should be

considered only as input to the ZBA’s

deliberations.

After determining the essential

character, the next step is to evaluate

whether or not approval of the use

variance would alter that character. This

decision might hinge on whether or not the

proposed use variance may tip the scales in

one direction or another. If an area appears

to be in transition from a residential to

commercial area, for example, a

commercial use variance may be

appropriate. However, if the specific

character of the area is unclear, a use

variance may not be appropriate since it

could tend to establish a specific character.

This type of decision will require the

exercise of discretion by members of the

ZBA, as assisted by staff and consultants.

4. The problem is not self-created.

§ 64 This standard is essentially the same as

that for nonuse variances. If the applicant

created a particular situation that made a

property essentially unusable as zoned, that

applicant would not be entitled to relief by

approval of a use variance. For example, if a

property owner subdivides a large,

residentially zoned property, leaving a

corner lot as an isolated parcel, an

argument that the parcel should only be

used for nonresidential purposes could fail

because the parcel was created by the

direct action of the applicant.

The other general requirements are

met.

§ 65 As in the case of nonuse variances, an

applicant must show that the variance

meets the state law requirements, that the

spirit of the ordinance shall be observed,

public safety secured and substantial justice

done.

Use Variances and Rezonings - The

Paragon Rule

§ 66 Understanding use variances was made

What is the “area”

affected by a use variance?

The “area” which may be affected by a

use variance will depend on the nature of

the request and the size of the property

that is the subject of the requested use

variance. For example, a small residential

lot requesting a use variance for an office

will affect a smaller area than a request

on a large site for an intensive

commercial use.

Zoning Board of Appeals Handbook

more important by a 1996 decision of the

Michigan Supreme Court,

Paragon

Properties Company v City of Novi,

(452

Mich 568, 550 NW2d 772 (1996)) in which

the court required a “final decision” of the

municipality. Under the

Paragon

decision, it

will not be deemed that a final decision has

been rendered by the municipality until the

property owner seeks a use variance from

the zoning board of appeals. The

Paragon

decision, therefore, requires submission of

a use variance application following a

rezoning request denial by the legislative

body before any legal disputes may be

brought before the court.

The Michigan Zoning Enabling Act

allows a community to choose whether or

not it wishes to have a use variance

procedure in its ordinance. Therefore, if the

use variance procedure was not available,

the applicant would not have to exhaust

this remedy, and

Paragon

would not apply.

Even if provided for by statute, some

communities have language in their zoning

ordinances that prohibits consideration of

use variances. Often this language is in the

form of not permitting the zoning board of

appeals to hear variances that would have

the effect of changing land use or zoning.

For those communities that continue to

hear use variances further definition of the

meaning of the

Paragon

decision will likely

require additional litigation and

clarification.

In general, the full effect of this

decision has yet to be felt and the

interpretation of its language will likely

result in some confusion as individual

county circuit courts utilize this case.

What about precedents?

§ 67 One of the concerns often expressed

by ZBA members is the fear that by

approving or not approving a request they

may be setting or violating a precedent.

This concern can be real if the ZBA is not

using the standards of review of the zoning

ordinance. Failure to use these standards

consistently requires the ZBA to make up

the rules as they go. As a result, future

applicants gain the right to be considered

by the same considerations used by the

ZBA in previous meetings.

Consequently, the way to avoid setting

a precedent is to base every decision on the

standards of review of the zoning

ordinance, and include findings of fact that

distinguish cases from one another. When

the standards are used and findings made

consistently, the ZBA is less likely to be

bound by past decisions because the facts

of each case are different. On the other

hand, where the facts are very similar the

same decision should be reached, not

because of a precedent but because the

same facts were applied against a

consistent set of review standards.

Therefore, consistent and faithful use of

the review standards for variances allows

the ZBA to reach decisions based on the

facts of each individual case. This, together

with the detailed findings of fact, helps

ensure consistency and fair treatment for

every applicant by avoiding the "arbitrary

and capricious" labels often given to zoning

decisions that are not well supported.

As each application is debated, each of

the applicable standards should be

specifically reviewed and individual findings

made for each. No approvals should be

granted until the members clearly agree

that all the standards of review are

satisfied. Zoning decisions are permanent.

Care must be taken to ensure that each

decision is well supported. It is essential

that the decisions are well documented and

that the records pertaining to all

applications are complete.

How to Avoid Litigation

§ 68 The short answer to avoiding litigation

is simple—you can't! Governments are

Zoning Board of Appeals Handbook

always open to lawsuits, regardless of the

quality of their decisions. Far too often,

disappointed applicants or neighbors look

to the courts to solve their problems. As a

result, the ZBA cannot be overly influenced

by threats or concerns about whether a

decision will result in a lawsuit, provided, of

course, that the ZBA has acted properly

and thoroughly supported and documented

the decision.

However, there are some actions that

can strengthen the ZBA’s legal position

should any decision be challenged.

 Follow a standard decision

making process. The zoning

process involves a wide variety of

technical, administrative and

judgmental factors. Making sure

that the requirements of the

ordinance are followed, including

proper notices, use of standards

of review and proper

documentation of decisions is a

good start.

 Use review standards and make

findings. The most important

step you can take is the proper

use of the review standards

provided in the zoning ordinance

to guide your decisions. These

standards outline a clear path to

reaching fair and consistent

decisions. All decisions must be

based on these standards and the

facts that are used to apply

them. Therefore, apply and make

findings on each review standard.

 Follow proper procedures. The

community should ensure that

adequate procedures are in place

to ensure that application

procedures are clear, notices are

properly completed, and

adequate records are kept. The

ZBA should ensure that proper

hearing procedures are followed.

This includes creating a suitable

record of the actions taken and the

reasons for those actions as part of

the ZBA minutes.