Site Plan Approval Expiration with Zoning Ordinance Modification - Ask Extension
Good afternoon,
My name is Kevin Baird, and I am a graduate of the MSU Eli Broad School of Business. I recently obtained site plan approval for a...
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Site Plan Approval Expiration with Zoning Ordinance Modification #816757
Asked November 21, 2022, 11:52 AM EST
Good afternoon,
My name is Kevin Baird, and I am a graduate of the MSU Eli Broad School of Business. I recently obtained site plan approval for a 20 unit apartment development in Rochester Hills, MI in December of 2020. We also obtained natural features setback approvals and MDEQ wetlands use permits after and obtained full construction engineering approval from the municipality.
However, I never obtained a formal Land Improvement Permit from the Engineering department as required to extend the site plan approval which was valid for 12 months. Our site plan approval expired and I did not formally request an extension from the Planning administrator. As part of our site plan approval, the Planning Commission granted a dimensional variance for a side yard setback from 25 ft down to 15 ft. (10 ft variance)
The Planning Department issued a 6 month moratorium to evaluate the ordinance and ultimately changed the required side yard setback to 50 ft and eliminated the ability for the Planning Commission to be able to grant any dimensional setback variances.
It appears my only option is to submit for site plan approval once again, but I would lose an entire building or 4 units making the development unfeasible financially. The city has noted this would not qualify as a ZBA issue so I have no options besides revamping my entire development and starting over with a new concept. I have well over $100,000 invested into civil engineering and architectural fees for the project.
Does my previous zoning approval run with the land permanently even if the site plan approval has expired? There is no way to even submit my project back to the Planning Commission for them to approval the same dimensional variance.
Kevin Baird
248.709.2792
Oakland County Michigan
Expert Response
Mr. Baird,
I am sorry to learn about your situation/experience. Generally speaking, a zoning approval that has not been acted upon by the property owner can expire. This article explains the 'general rule' (and exception): Zoning runs with the land, except when it doesn’t.
If there is not a vested right resulting from substantial construction following zoning and building approval, case law generally states that local ordinances can be amended, thereby requiring any previous zoning request/approval that has expired to only be allowed through reapplication under the new/current zoning provisions. Put differently, under Michigan law, a landowner does not possess a vested property interest in a particular zoning classification unless the landowner holds a valid building permit and has completed substantial construction. See Heath Township v. Sall, 442 Mich 434 (1993); Seguin v. City of Sterling Heights, 968 F.2d 584, 590 (6th Circuit 1992).
While site plan approval is likely still required, perhaps seeking a dimensional variance from the ZBA is appropriate, so long as you can prove a practical difficulty in meeting the standards in the ordinance. See Proving a practical difficulty for a dimensional variance request.
We are not attorneys can do not provide legal advice. You are encouraged to consider your options in consultation with an experienced Michigan attorney. Best of luck!
I am sorry to learn about your situation/experience. Generally speaking, a zoning approval that has not been acted upon by the property owner can expire. This article explains the 'general rule' (and exception): Zoning runs with the land, except when it doesn’t.
If there is not a vested right resulting from substantial construction following zoning and building approval, case law generally states that local ordinances can be amended, thereby requiring any previous zoning request/approval that has expired to only be allowed through reapplication under the new/current zoning provisions. Put differently, under Michigan law, a landowner does not possess a vested property interest in a particular zoning classification unless the landowner holds a valid building permit and has completed substantial construction. See Heath Township v. Sall, 442 Mich 434 (1993); Seguin v. City of Sterling Heights, 968 F.2d 584, 590 (6th Circuit 1992).
While site plan approval is likely still required, perhaps seeking a dimensional variance from the ZBA is appropriate, so long as you can prove a practical difficulty in meeting the standards in the ordinance. See Proving a practical difficulty for a dimensional variance request.
We are not attorneys can do not provide legal advice. You are encouraged to consider your options in consultation with an experienced Michigan attorney. Best of luck!
Thank you, Brad. I appreciate the response. Sadly the ZBA is not an option so I would either need to start over or file a lawsuit and hope for a settlement.
The city wants the project to proceed but there is no mechanism in their zoning that allows for it to happen administratively.
Kevin Baird
Mr. Baird,
Why is the ZBA not an option? Is the zoning administrator preventing you from making application to the ZBA? Generally speaking, applying to the ZBA for a dimensional variance is a right that you have with property ownership. If it's a long shot to satisfy the practical difficulty standards, that is your loss after paying the application fee, but the ZA cannot 'block' you from applying, ordinarily. You might make sure you have sufficiently pursued this avenue, after all, judges have told plaintiffs that they did not exhaust their administrative remedies before coming to court.
Why is the ZBA not an option? Is the zoning administrator preventing you from making application to the ZBA? Generally speaking, applying to the ZBA for a dimensional variance is a right that you have with property ownership. If it's a long shot to satisfy the practical difficulty standards, that is your loss after paying the application fee, but the ZA cannot 'block' you from applying, ordinarily. You might make sure you have sufficiently pursued this avenue, after all, judges have told plaintiffs that they did not exhaust their administrative remedies before coming to court.
I did check with the city planner but she felt the ZBA would not be an option since they unable make rulings on a site plan approval. Maybe I should ask the city attorney to review and see if the ZBA is a valid option?
D.
Limitations of Authority.
1.
Nothing contained in this section shall be construed to give or grant to the Zoning Board of Appeals the power or authority to alter or change this ordinance or the zoning map or to rezone, such power and authority being reserved to the City Council.
2.
Nothing in this section shall be construed to authorize the Zoning Board of Appeals to hear, review or decide any appeal from a decision of the City Council or Planning Commission to approve, approve with conditions, or deny a site plan or special use.
Kevin Baird
248.709.2792
Mr. Baird,
You would apply to the ZBA for a dimensional variance and, if approved, then apply to the planning commission for site plan approval. The site plan would be prepared showing the approved variance and the planning commission would be concerned with all remaining standards applicable to the project in the district.
It is unfortunate the zoning administrator is not recognizing these two distinct approvals and appointed bodies as parts of a single project moving through the local government process.
Feel free to email me directly with any additional questions: <personal data hidden>
You would apply to the ZBA for a dimensional variance and, if approved, then apply to the planning commission for site plan approval. The site plan would be prepared showing the approved variance and the planning commission would be concerned with all remaining standards applicable to the project in the district.
It is unfortunate the zoning administrator is not recognizing these two distinct approvals and appointed bodies as parts of a single project moving through the local government process.
Feel free to email me directly with any additional questions: <personal data hidden>
