Temporary Zoning Variance
As a member of the ZBA of Bruce Township, we denied a zoning variance for installing a 6 foot fence in the front of the property. The request was to contain a 13 year old with mental handicap issues. Since the hardship was not due to the land but due to a personal issue, we denied the variance. Subsequent to our ruling, the resident that was denied took the issue to court and the Township Board ended up granting a temporary variance as long as the handicapped child resided there. My questions are as follows: 1) Can the Township do this - override the ZBA? 2) Could the ZBA have granted a temporary variance? Our ordinance requires that the applicant show the following that was not demonstrated. The ordinance reads: The application shall be accompanied by an affidavit by the applicant explaining: a. How the strict enforcement of the provisions of the Township Zoning Ordinance would cause practical difficulty and deprive the owner of rights enjoyed by all other property owners owning property within the same zoning district. b. The conditions and circumstances unique to the property which are not similarly applicable to other properties in the same zoning district. c. The conditions and circumstances unique to the property were not created by the owner, or his predecessor in title, within the time following the effective date of the provisions alleged to adversely affect such property. d. Why the requested variance will not confer special privileges that are denied other properties similarly situated and in the same zoning district. e. Why the requested variance will not be contrary to the spirit and intent of this Zoning Ordinance The Granting of temporary variance is limited to: The Zoning Board of Appeals may authorize temporary structures, signs and uses permitted in a district for periods not to exceed two (2) years in undeveloped sections of the Township, and for periods not to exceed six (6) months in developed sections. The Zoning Board of Appeals may also authorize temporary uses which do not require the erection of any capital improvement of a structural nature which are not otherwise permitted in any district, for a period not to exceed twelve (12) months, with the granting of twelve (12) month extensions. The Board of Appeals, in granting permits for the above temporary uses, shall do so under the following conditions: a. The granting of the temporary use shall in no way constitute a change in the basic uses permitted in the district nor on the property wherein the temporary use is permitted. b. The granting of the temporary use shall be granted in writing, stipulating all conditions as to time, nature of development permitted, and arrangements for removing the use at the termination of said temporary permit. c. All setbacks, land coverage, off-street parking, lighting and other requirements to be considered in protecting the public health, safety, peace, morals, comfort, convenience and general welfare of the inhabitants of Bruce Township shall be made at the discretion of the Board of Appeals. d. The use shall be in harmony with the general character of the district. e. No temporary use permit shall be granted without first giving notice to owners of the adjacent property of the time and place of a public hearing for consideration of the request by the Zoning Board of Appeals. Further, the Board of Appeals shall seek the review and recommendation of the Planning Commission prior to the taking of any action.
Appeals of ZBA decisions go to Circuit court. The Township Board of Trustees does not have the power to grant variances or overturn ZBA decisions.
There are some significant issues at play here. The granting of a “temporary” variance is an issue. Courts have held if the grounds for a variance exist for a short period of time they would exist permanently. This lies in the nature of the property and unique circumstances therein.
This leads to the second point of having a variance based on an occupant of the parcel. Conditions and circumstances unique to the parcel is the key.