Posted by: Patricia Salkin | October 25, 2018

MI Appeals Court Finds In Reviewing Use Variance Approval to Erect a Billboard that the Hardship was Not Self-Created

This post was authored by Matthew Loeser, Esq.

The City of Detroit appealed the circuit court order affirming the decision of the City of Detroit Board of Zoning Appeals (“BZA”) to grant a use variance to International Outdoor Inc. (“IO”) for the erection of a billboard. On appeal, the City alleged the BZA did not have the authority to grant a use variance in an area of Detroit designated as the Grand Boulevard overlay zone, which banned off-site advertising signs. The City further contended that even if the BZA did have the authority, IO could not prove the ordinance imposed an unnecessary hardship because it purchased the property with knowledge that the ordinance banned off-site advertising signs.

At the outset, the court reviewed whether the BZA was authorized to grant a hardship variance within the overlay zone. The applicable statute, Detroit Zoning Code, § 61-4-127, provided “additional forms of relief” for hardship relief petitions, which expressly granted the BZA power to “adopt any legally available incentive or measure that is reasonably necessary to offset any denial of reasonable economic use,” including “allowing the establishment of a prohibited use, provided that the petitioner demonstrate none of the permitted or Conditional Uses in the zoning district is economically feasible.” Here, the city council expressly authorized the BZA to grant any request based on hardship in order to effectuate the use of land in a manner that promotes and protects the public health, safety, and general welfare.

On appeal, the parties did not dispute the BZA’s findings as to the first three elements of the hardship test: the property could not reasonably be used in a manner consistent with existing zoning; the landowner’s plight was due to unique circumstances and not to general conditions in the neighborhood that may reflect the unreasonableness of the zoning; a use authorized by the variance would not alter the essential character of a locality. As to the last factor, however, the City claimed that IO created the hardship at issue by purchasing the property with the knowledge that off-site advertising signs were prohibited there. Here, the only reference to the parcel’s history suggested that it had the same unique shape and size since well before the 1999 ordinance was enacted. Additionally, there was no evidence that the property owner or the predecessor in title took actions after the enactment of the overlay zone that in some way physically altered the land so as to render it unfit for the use for which it is zoned. Accordingly, the court held that the BZA did not abuse its discretion when it concluded the self-imposed hardship rule was inapplicable under these circumstances and granted the variance.

City of Detroit v City of Detroit Zoning Board of Appeasls, 2018 WL 5276473 (MI App. 10/23/2018)

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