Variance for practical difficulty

Asked December 6, 2019, 5:30 PM EST

I am on the ZBA and we were asked to grant a variance for practical difficulty because the architect and home owner wanted the home to be higher than allowed in that zoning area. My colleagues on the ZBA thought this was allowable. I said that having ten foot ceiling on two floors did not constitute a practical difficulty since reducing the floor heights to nine feet on the first floor and eight on the second floor removed the need for a variance. Is floor to floor height a practical difficulty?

Berrien County Michigan

1 Response

Hi there,

Thanks for this question about practical difficulty. I am assuming that the decision for this particular variance has already been made by the ZBA, but let’s discuss it further.

Please take a look at this article by Brad Neumann, Proving a practical difficulty for a dimensional variance request :

“The Michigan Court of Appeals has applied the following principles in dimensional variance court cases, which collectively amount to the showing of a practical difficulty:

  1. Strict compliance with the standard would unreasonably prevent the landowner from using the property for a permitted use, or would render conformity necessarily burdensome;
  2. The particular request, or a lesser relaxation of ordinance standard, would provide substantial justice to the landowner and neighbors;
  3. The plight is due to unique circumstances of property and is not shared by neighboring properties in the same zone; and
  4. The problem is not self-created.”

Brad runs through the meaning of the variance standards and practical difficulty in this article so I won't repeat them here. Let’s looks at the variance request and consider the practical difficulty standards in light of the 10’ ceiling request.

1) Could the applicant reasonably design a structure without needing a variance? If the answer is yes- then they should not receive a variance. If they can design a structure but in doing so, they have to make unreasonable accommodations that would substantially change the physical features of the land (such as- extensive fill or excavating steep slopes and making them more unstable) then this may meet the practical difficulty standard. Wanting 10-foot ceilings as a design element is not likely to meet this standard, especially if they could overcome the need for a variance with 8’ or 9’ ceilings.

2) Is there anything unique to the property such that having a taller structure makes sense or is this property similar to other neighboring properties? For example, is the property in a valley or in a dune landscape where EGLE (MDEQ) has required that they start their first floor at a lower elevation as compared to everyone else-- ? Is there a reason why they cannot bring the pitch of the roof down so they can meet the maximum height limits?

3) Is this unique or do neighboring properties in the same zone have similar issues? In other words, it is just this architect and landowner requesting this where everyone else in the area seems to be functioning with 8’or 9’ ceilings or a lower roof pitch? What is unique about the property that is driving this request? If there is nothing unique here, it is not a practical difficulty.

4) Is the problem the result of a unique physical feature of the property and not self-created—steep slopes, narrowness, wet ground, valleys, unstable soils, a water body, etc. Versus, a self-created issue like the previous owner built a house that is on the setback line and the new owner wants a deck that requires a variance. In that case, the previous owner created the problem (which by most ordinances constitutes a self-created problem). Absent one of these examples of unique physical features or other similar issues on neighboring properties—it does not appear that a request for 10’ ceilings meets that standard for practical difficulty.

Being on the ZBA is a difficult job that requires the board to make hard and sometimes uncomfortable decisions. The big picture must always be in mind—the plan, the community, the zoning ordinance.

Sometimes a ZBA can lose sight of this. If the ZBA has no stomach/will to enforce a certain provision of the zoning ordinance, in these case-- a height limitation. If this is the case, they should ask the Planning Commission to propose an ordinance amendment allowing for taller buildings to account for higher ceilings and/or roof pitches (both are in style now). Is this a common request? Is it routinely granted? If the Planning Commission says they do not support an amendment, it would be a great opportunity for the PC to explain the reasons why the height limitation is in place (Master Plan, view shed, waterfront, rural scale). If neither the PC, ZBA, nor elected officials, have any idea why the current height limits are important or cannot be changed, then this issue may be ripe for an ordinance amendment to increase building height. It does not make sense for any party, private or public, to have a standard in the ordinance that is routinely granted a variance without a showing of practical difficulty.

MSU Extension offers ZBA training if you thing that might be a good option. We can discuss what that might look like if you are interested (reillym8@msu.edu)

Without all of the facts, sometimes I have am at a disadvantage in consulting on these types of requests. You can also seek the advice of a municipal attorney with experience in planning and zoning.

Best Regards,

Mary Reilly