Mich. Admin. Code R. 281.60 - Variance and variance hearings

Rule 10.

(1) A dimensional variance from any standard established in these rules may be granted by the zoning review board after a public hearing or, by the zoning administrator as provided in these rules, to allow a modification from a standard that establishes an area, yard, height, floor space, frontage, setback, or similar numerical restriction, but only after evidence establishes that a practical difficulty exists in complying with these rules. A variance shall be granted only when it is consistent with the general purposes and intent of these rules. Work authorized by the variance shall not commence until a permit is issued by the zoning administrator.

(2) The zoning review board or zoning administrator shall consider the following factors to determine if a practical difficulty exists in order to comply with these rules as specified in subrule (1) of this rule:

(a) A condition exists on the property that prevents the development standards from being met.

(b) The practical difficulty cannot be overcome by some reasonable method other than a variance.

(c) If the practical difficulty cannot be overcome by some reasonable method other than a variance, the variance shall meet the standards to the greatest extent possible.

(d) The variance will not cause a substantial change in the character of the area.

(e) In view of the manner in which the practical difficulty arose, the interests of justice will be served by allowing the variance.

(f) The practical difficulty is due to circumstances which are unique to the subject property and not self created.

(g) The variance shall not result in an adverse effect on the environment.

(3) The public hearing and review of a variance request by the zoning review board may be waived for a minor dimensional variance for a principal use. Such a variance application shall be processed by the zoning administrator, who shall consider the factors of subrule (2) of this rule in making a determination. The zoning administrator shall prepare a written finding of fact that details the reasons for approval or denial of the minor variance request. A minor variance is defined as a reduction in setback for a principal use on any lawful lot that is not more than 25% of the normal dimensional requirements, a certain variance to expand a legal nonconforming dwelling or restore a destroyed legal nonconforming structure as described in R 281.59 and a setback variance for a single-family dwelling and short-term rental facility, as described in R 281.57.

(4) A land use variance is a land or building use in contravention of any of the use requirements of these rules. The zoning review board may, after a public hearing, grant a land use variance upon a finding of unnecessary hardship, which may be found upon evidence being submitted that all of the following factors exist:

(a) The property cannot be used as zoned.

(b) The unnecessary hardship results from the application of these rules to the subject property.

(c) The unnecessary hardship is suffered by the subject property only and not shared by other property owners.

(d) The unnecessary hardship is not self created.

(5) Upon determining that an unnecessary hardship for a land use variance exists, the zoning review board shall determine that the proposed use meets all of the following:

(a) The proposed use shall be in accordance with the natural river plan.

(b) The proposed use will be designed, constructed, operated, and maintained consistent with the existing or intended character of the natural river district and the proposed use will not change the character of the natural river district.

(c) The proposed use will not involve activities, processes, materials, equipment, and conditions of operation that may be detrimental to any person, property, or the environmental quality of the natural river district, such as excessive noise, smoke, fumes, glare, odors, or outdoor storage of materials.

(d) The proposed use will be consistent with the intent and purpose of these rules.

(e) The proposed use or a structure to be used will not cause an overcrowding of the land or an undue concentration of population that may result in degradation to the natural river district.

(f) The proposed use lot area is sufficient, appropriate, and adequate for the proposed use and the reasonable anticipated operation and expansion thereof.

(6) The economic return factor shall be considered only if the applicant has been deprived of all beneficial use of subject property under existing zoning. In determining whether reasonable use may be made of the property as zoned, a reasonable economic return may be considered, but only if the applicant is in compliance with the provisions of subrules (1) to (5) of this rule.

(7) Upon receipt of a variance application, the zoning review board shall conduct a public hearing on the variance application, except in the case of a minor variance application. The application, public hearing, and notice procedure shall follow the procedures in R 281.55. The zoning review board shall record all its proceedings, which shall include minutes of meetings, findings, and actions taken, including the final order. Reasons for the decision shall be in writing. The zoning review board shall record the vote of each member on each question. The zoning review board shall record if a member is absent or fails to vote. All records shall be open for public inspection. The concurring vote of at least a majority of the eligible voting members of the zoning review board is required to grant a dimensional variance. The concurring vote of at least a two-thirds majority of the eligible voting members of the zoning review board is required to grant a land use. If the required concurring vote for approval of a variance is not achieved, the variance is denied.

(8) A variance shall create a nonconforming land use, lot, or structure that is subject to R 281.59.

(9) The zoning review board or the zoning administrator may impose permit conditions, in writing, before granting a variance. The zoning permit issued for the variance is not valid until the applicant accepts the conditions in writing.

(10) An application for a variance denied by the zoning review board or zoning administrator shall not be resubmitted for consideration unless significantly different in scope or new and significant facts and conditions exist from the previously denied application.

Notes

Mich. Admin. Code R. 281.60

1979 AC; 2013 AACS

An obvious error in R 281.60 was corrected at the request of the promulgating agency, pursuant to Section 56 of 1969 PA 306, as amended by 2000 PA 262, MCL 24.256. The rule containing the error was published in Michigan Register, 2013 MR 18. The memorandum requesting the correction was published in Michigan Register, 2013 MR 19