Michigan continues to experience a slow period in land development and construction. Townships are reporting extremely low levels of development and building activity again this year. Despite the economy and the slowdown in real estate development, the courts are deciding zoning litigation at a heavy pace. We dedicate this blog to the Michigan zoning and land use developments of interest to townships in the first half of 2009. Since the beginning of 2009,
Citizens (and some officials) who do not often deal with land use matters may sometimes confuse the zoning board of appeals (ZBA) and the construction board of appeals. The ZBA is responsible for variances, interpretations and appeals under the local
Prior to challenging the application of a zoning ordinance to a particular parcel, the property owner must first file a variance application with the ZBA, not with the construction board of appeals. Failure to pursue a variance application with the correct appeals board usually results in dismissal of the subsequent court case.
If a property owner files a variance for one proposed use, which the ZBA turns down, and then later changes his proposed use, he cannot file a court case involving the revised use until he first gets a specific ZBA ruling on the revised use.
Townships need to be careful to separate their interests as a land use regulator from their interests as a property owner. One area where the need for this separation is very apparent is in the selection of locations for cell towers.
Cell towers are financially beneficial for the owner of the property where they are located. Lease revenues to the owners can be considerable, and often the underlying property can still be used for other purposes as well. For this reason, townships sometimes seek out cell tower developers to locate the towers on township property
At the same time, cell towers are frequently opposed by surrounding land owners, based on aesthetic and other issues, and the township (through its township board, planning commission or ZBA) has the responsibility to resolve those disputes. Finding a site that will serve the needs of the cell carrier and meet local objections can be a serious challenge.
The real trouble comes when the township tries to play both roles—regulator and po-tential landlord—at the same time. More than once in recent years, we have seen this potential conflict play out badly for townships.
If the township denies a permit for a cell tower on one private parcel, then later leases township property to the same cell carrier at a nearby township-owned site, chances are good that the owner of the private parcel will bring a lawsuit against the township. Unless the township is very careful, the private owner may be able to prove a cause of action against the township.
The best approach a township can take in this difficult situation is to clearly separate its regulatory and property leasing activities. There is nothing wrong with the township aggressively marketing its properties to prospective cell carriers, up to the point that the cell carrier contracts with a private owner to locate its tower. At that point, the township should cease any negotiations to sell its property to the carrier and solely focus on its role as regulator.
If the township denies the tower on the private parcel, it would be well-advised to de-lay any further lease negotiations with the carrier until after any business relationship between the carrier and the private property owner has ceased. When the township moves forward with its lease negotiations too quickly, the private property owner may have a cause of action for interfering with the business relationship between the private owner and the carrier. This allows the private owner to claim that the township improperly used its regulatory power to interfere with the private owner’s business relationship.
A zoning moratorium is a brief period in which a township declares that it will not consider or grant any rezonings or major land use permits, while the township studies changing circumstances or adopts a new master plan to address potential broad revisions to its zoning ordinance. Although this technique has not often been used in Michigan, it is supported by court authority and can be used if reasonable under the circumstances. One good idea is to build in a provision that allows the ZBA or township board to waive the moratorium with respect to a particular parcel if the owner can demonstrate an unnecessary hardship.
Hopefully, most townships are taking advantage of the present "moratorium" ef-fectively caused by the economic downturn. Planning commissions are less busy with new projects than they have been in years, providing an excellent opportunity to use the free time to focus on retooling master plans and planning for the future.
Forest and tree protection is a reasonable public purpose for land use regulation. One approach to tree protection designates certain existing trees as protected, and conditions the removal of such protected trees on (1) relocation of the protected tree, (2) replacement with trees of comparable value, or (3) contribution to a township tree fund for the purchase and installation of replacement trees. Such mandatory conditions are reasonable as long as the cost of the replacement or contribution is proportionate to the value of the protected tree resources. Atchoo v Orion Charter Township
One common standard for granting variances found in most zoning ordinances is whether the variance is "necessary for the preservation and enjoyment of a substan-tial property right . . ." To meet this standard, the property owner must demonstrate that there is no other alternative way that the desired building can be located on the parcel.
For example, although being able to build a garage on a residential parcel may be a "substantial property right," building the garage according to a particular preferred design or in a particular preferred location is not. So, when a ZBA reviews a variance for a garage, it is appropriate to consider whether there may be another location or design on the lot that would allow a reasonable garage without a variance.
The fact that redesigning a use may involve some additional expense or delay is not sufficient to provide a basis for a variance, provided it is reasonably possible to accommodate the redesigned use on the parcel.
When granting variances, ZBA members are frequently concerned about creating "precedents" that may bind the ZBA in future cases. There is some basis for this concern, since a ZBA may violate "equal protection" if it treats similarly situated property owners in irrationally different ways. Each parcel of property is unique, however, and the circumstances of two parcels may be different enough so that it can be reasonable to grant a variance to one parcel but deny it to another. When reviewing variances, the ZBA should pay specific attention to the attributes and cir-cumstances of the parcel in question (lot shape, depth, width, easements or natural obstructions, etc), and determine whether there is a rational basis to deny a variance on that parcel.
Many ZBA members are aware that a variance should be denied when the need for the variance is created by some act of the property owner, a so-called "self-imposed hardship." Confusion exists about what kinds of property owner acts can be con-sidered a self-imposed hardship.
The Michigan Supreme Court recently clarified one area of confusion. If the property owner purchases land with knowledge that it is zoned and master planned for a particular use, the self-imposed hardship rule will not prevent the owner from seeking a rezoning or variance for the property, or from challenging the zoning designation in a court action. The new property owner takes the property with all the rights that the prior owner would have had to challenge the zoning.
A self-imposed hardship applies when the property owner takes some specific action to alter the land so that its use is impaired. For example, if the owner chooses to split the parcels so that they are not suitable for a particular use, the owner cannot rely on that self-imposed change to justify a rezoning or variance.
Zoning ordinance provisions are frequently less than crystal clear. What might seem obvious to the drafter, but remains unspecified in the ordinance, leaves a gap in the ordinance that needs to be interpreted.
The ZBA has authority to interpret vague or unclear ordinance language, but it must have a basis in the actual ordinance wording for its interpretation. Ordinance language that does not make reasonable sense on its face presents particular difficulty for interpretation.
In one recent case, the Court of Appeals refused to defer to the interpretation of the ZBA and the discretion of the zoning administrator where the ordinance made no sense and provided no clear guidance for the exercise of discretion. Instead, the court treated the ordinance as if the vague provisions did not exist and allowed the property owner to use the land as he wished. Thus, it is extremely important to have your township zoning ordinance reviewed by a well-qualified pro-fessional to assure that its provisions are clear and not vague.
"Pyramid zoning" is a zoning scheme that allows "lower" uses (such as residences) to be located in "higher" zoning districts (such as commercial or industrial). Many years ago, this was considered a legitimate zoning technique, but experience has taught that (except in situations where mixed uses are planned very carefully) a basic goal of zoning should be to segregate incompatible uses
If your zoning ordinance has not been reviewed by a professional in some time, you may find some aspects of pyramid zoning remaining there. Allowing residences to be located in commercial or industrial districts tends to create land use conflicts and may make the district unattractive to the uses it was designed to accommodate. To make it clear that your zoning ordinance does not permit pyramid zoning, each zoning classification should specify that it permits the uses listed there and no other uses.
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