ZBA interpretations

Asked September 29, 2020, 11:38 AM EDT

When the ZBA makes an interpretation of the zoning ordinance that is not specifically referencing a particular parcel, but could apply to a number of areas in the ordinance (not a particular parcel), what then would be the role/responsibility of the planning commission in incorporating that interpretation into zoning language in the ordinance? Is that interpretation zoning law? It is my understanding that the PC cannot ignore such an interpretation. What are their choices?

Antrim County Michigan

1 Response

Hello,

Thanks for this interesting question. I recommend that you follow up with the municipal attorney if the interpretation was written by that attorney. If an attorney was not used to craft the interpretation, I recommend that this practice be changed. It is very important to always use an attorney for ZBA interpretations going forward.

An interpretation should be “narrowly crafted” to address a specific issue in the ordinance and attorneys are very good at this. An interpretation that is too broad, or not considered in light of the entire ordinance, can have significant unintended consequences. This sounds like what may have happened in your case and perhaps the Planning Commission is wondering “do we really have to apply this to this other situation or parcel?”

After the interpretation is decided by the ZBA, the Planning Commission is bound to the interpretation until such time that the ordinance can be amended.

If the Planning Commission finds that the ZBA interpretation has unintended consequences in other areas of the ordinance, they can seek to amend the ordinance using language that differs from the original interpretation. The Planning Commission can recommend a zoning amendment to the legislative body that departs from the ZBA interpretation. If the interpretation was too broad in scope and if it means that the PC applying the interpretation to “other parcels” creates some real issues, the amendment process may need to be started promptly (such as within the next 1-2 months).

If the Planning Commission is in agreement with the ZBA’s interpretation, they must apply the interpretation until the ordinance can be amended to clarify the content, sections, provisions the interpretation was intended to clarify. It is important that the ordinance be amended in a timely manner (such as within the next year) so the public, staff, architects etc. can pick up the ordinance and interpret the language as it was intended to be understood. The interpretation does have the force of law-- this is why it is so important to consult an attorney to help make sure it applies to very narrow circumstances. Presumably, the ZBA’s interpretation was necessary to clarify some issue and the ordinance should be amended by the legislative body to reflect that clarification. But until the ordinance is amended, it must be interpreted consistent with the ZBA’s interpretation.

Please note that I am not an attorney. I recommend that an attorney experienced in municipal law review any zoning amendment, especially in light of the recent interpretation.

Good luck,