Experation on ZBA variance legal

Asked August 6, 2013, 11:07 AM EDT

In 2008 I applied for a non use variance regarding set backs with the intention of building my personal residence. The variance was approved unanimously by the ZBA. For health and business reasons I was not able to proceed with the construction. I am now planning on moving forward with construction of the home with no deviation to the original variance appeal. I am told by the City of Port Huron the variance expired and I need to present a new variance request even though there are no changes. This time there is one neighbor who is planning to oppose the variance even though he agreed to the variance request in 2008 (documented in the min.s of the 2008 ZBA meeting). Question; If Michigan law states a decision by the ZBA is final can that decision expire? Is there case law supporting this position. Thank you in advance for your help! Marsh Campbell

St. Clair County Michigan

3 Responses

Zoning decisions come with a timeline for implementation as specified in the local ordinance. If implementation is not vested within that time frame that decision expires. Typically an applicant has twelve months to vest their rights to the decision/permit. Vesting usually requires significant physical changes to the site such as excavations or footings. Once the rights are vested the decision runs with the land and does not expire.

Glenn, Thank you for quick response. However, if you were to go to your "MSU Extension" web page, "Land Use Questions and Answers Index, Zoning Appeals"
the questions "Variance Expiration Temporary Variances" and "Variances do not go away" the answers to these questions (answer written by Kurt H. Schindler) appear to be a direct contradiction to your answer. Please help me understand. Thank you!

Marsh Campbell

Once a variance has vested it runs with the land. There are no such things as a temporary variance in Michigan. When someone is granted a variance it is done with the expectation of prompt action to vest the rights granted with the variance. When dealing with a lot size variance it is immediately vested. Vesting for other purposes is typically spelled out in the ordinance.

There are differing opinions on this as to what constitutes vested rights and when they occur.

Now, as to your variance, if the material facts of the request have not changed it should be approved