I need a refresher - our township had a history of granting 'use' variances prior to the enactment of PA 110 of 2006 and thus kept the opportunity to do so in our most recent zoning ordinance updates. The act states (in addition to other standards of review) that it must be determined that an 'unnecessary hardship' exists in order for the ZBA to grant a 'use' variance. Has there been any recent court cases that more thoroughly establish exactly what constitutes an 'unnecessary hardship' and distinguishes it from a 'practical difficulty'? In other words: Can you please explain what an unnecessary hardship is and what a practical difficulty is?
In Michigan Use Variances can only be granted by cities, villages. Some counties and townships can grant use variances if they have done so prior to Feb. 15, 2006.
To grant a use variance a 2/3 vote of all members of the zoning board of appeals (ZBA) must vote for it.
To grant a use variance the ZBA must find an "unnecessary hardship" exists. "Unnecessary hardship" are sort of like standards, which were established many years ago by the courts. So this requirement is not new.
For a use variance "unnecessary hardship" includes:
- The property owner must show credible proof his property will not yield a reasonable return if used only for a purpose allowed by the ordinance.
- The property owner must show the zoning ordinance gives rise to hardship amounting to confiscation, or the disadvantage must be so great as to deprive the owner of all reasonable use of the property (e.g. a court would declare the ordinance confiscatory, unreasonable and unconstitutional in its application to the property involved).
- The need for the variance is not created by some action of the applicant (or previous owners).
- The need for the variance is due to a situation that is unique to the property and would not generally be found elsewhere in the same zoning district.
- Granting the variance does not alter the character of the neighborhood.
"Practical difficulty" is the same type of thing, only for nonuse variances (or regulation variances). Again, not new, but established by courts and used for many years now. "practical difficulty" includes:
- Will strict compliance with the dimensional requirements of the zoning ordinance prevent the applicant from using the property for the permitted purpose?
- Will granting the variance be fair to the applicant, or would a lesser variance work just as well?
- Is the need for the variance due to a situation that is unique to the property and would not generally be found elsewhere in the same zoning district?
- If granted, will the variance uphold the spirit and intent of the ordinance and be fair to neighboring properties?
- Has the need for the variance has not been created by some action of the applicant (or previous owners)?