Can a zoning board ignore expert input?

Asked June 7, 2020, 10:28 PM EDT

We attempted to get a variance to slightly encroach into a bluff impact zone. We had an engineer, State forester, an architect give evidence of absolutely no environmental impact of our proposal. The area of encroachment only has a 5.5% slope. The board ignored our experts and denied our variance because they said we could build in another location and meet all setbacks. Yes, but we would have to clear cut our forest, lose access to the sun for our passive solar home and lose our view of the lake. They said asking for a variance is in opposition of the comprehensive plan - asking to break the ordinance is wrong. Also they said that if they give us a variance they won’t be able to give any future owners of our property a variance and that deprives these future owners of their property rights and finally that grating our variance makes more work for the current board and future boards. We were stunned that they didn’t care about the environment, the negative impacts on our neighbors if variance is denied, we don’t think they considered the right issues. We think the whole discussion section had nothing to do with what we were proposing and only with they just don’t want to grant variances in general. Please offer your opinion.

Ramsey County Minnesota

1 Response

Greetings,

In Michigan, a zoning board of appeals should only grant a dimensional variance if the property owner has a practical difficulty meeting the ordinance standards. Michigan State University Extension has a website article on the subject - Proving a practical difficulty for a dimensional variance request. The standards described in the article are specific to Michigan, as articulated by the Michigan Court of Appeals, however the general concept is the same from state to state.

Additionally, the zoning ordinance for the local government will have its own standards for issuing a dimensional variance. With the ordinance standards as reference, the board members, as administrative officials, are charged with considering each request based on those standards alone. The board has no authority to introduce new standards or considerations into the decision/request. Substituting environmental and/or energy savings goals for the basic practical difficulty standards is not something the board has the authority to do. Even if the master/comprehensive plan of the unit of government speaks to such goals, the zoning board of appeals is charged with upholding the zoning ordinance, not the master plan directly.

Variances are, by definition, supposed to be difficult to obtain. A variance is an allowance to break the law. The law is what we expect all citizens to follow. A variance is intended to grant relief when strict application of the ordinance deprives the property owner of rights commonly enjoyed by others. So long as there is an unencumbered buildable envelope on your property, your rights to use the property with a residential building are not deprived, from the perspective of the zoning board of appeals.

Consider the scenario in which a narrow lot that slopes to the lake does not have the minimum width for a modest structure between the road setback and the slope down to the lake (i.e. the flat buildable portion of the property is too small). This would be a circumstance to grant a variance to allow the structure to be built closer to the slope (or the road) than the ordinance allows, otherwise the property would not be buildable (i.e. usable for a residential purpose).

Last, courts have long held that the facts in each zoning case are unique and individual decisions made by a zoning board are not precedential. However, granting variances through loose application of ordinance standards has the corrosive effect of weakening the validity of the ordinance over time. Another way to think about it is this – the administrative officials that comprise the zoning board of appeals are not elected and cannot legislate (adopt and amend law). By callously granting variances and succumbing to the pressure to grant similar ones to the last, a zoning board of appeals is acting outside its quasi-judicial capacity and is in effect, amending the ordinance over time. This is a legislative power held only by elected boards.

I hope this offers you a helpful perspective. I do not know if University of Minnesota Extension has resources and experts on this topic, however I do see they offer some Tips for purchasing and building on shoreland property.