(1) Administrative
Review: to decide variances on any order, requirement, permit,decision
or refusal made by the Building Official in enforcing the Zoning Ordinance(No.
14.01).
(2) Specific variances
which the ZBA may grant include the following where there are practical
difficulties or unnecessary hardships:
a. Height, Yard
Spaces and Area Requirement. The ZBA may permit such modification
of the height, yard space and area requirements as may be necessary
to secure appropriate improvement of a lot which is of such shape
or so located with relation to surrounding development or physical
characteristics that it cannot otherwise be appropriately improved
without such modification.
b. Additions to
Buildings. The ZBA may permit modification of zoning requirements
for additions or enlargements to existing buildings provided that
all requirements for the particular use in the zone where such use
if first permitted cannot be met without extreme physical hardship
owing to the shape of the lot, adjacent land uses or topography.
c. Other. In addition
to the above, the ZBA shall have power in passing upon appeals to
vary or modify any of its rules, regulations or provisions relating
to the construction, structural changes in, equipment or alteration
of buildings or structures, so that the spirit of the Ordinance shall
be observed, public safety secured and substantial justice done.
(3) Fence Variances:
to waiver, alter or interpret the provisions of the Fence Ordinance
(No. 13.02).
(4)
Wetlands Variances: to waiver, alter or interpret the provisions of
the Wetlands Ordinance (No. 12.05).
VARIANCE
PRINCIPLES
A variance is authorization
by the Zoning Board of Appeals (ZBA) to use a parcel or structure in
violation of the ordinance requirements when certain findings have been
made. Clearly, variances need to be carefully considered and under normal
circumstances should be rarely granted.
The ZBA's variance
authority is designed to provide relief to a property owner from an
ordinance requirement that is uniquely affecting him or her. A variance
is not a technique for granting special favors or a tool for solving
problems shared in common with other properties.
Often, people will
indicate to the ZBA that a variance should be granted to allow them
to make more money from the property. This is not a legitimate argument,
since zoning is not designed to permit the most profitable use of land,
although reasonable use of property must be permitted.
In Orchard Lake Village,
the ZBA is authorized to grant non-use variances. A non-use variance
is often called a dimensional variance because it usually deals with
setback, height, lot coverage, frontage requirements, or area requirements.
Where there are practical
difficulties preventing a property owner from conforming with the strict
letter of the ordinance, the ZBA has the power to grant a dimensional
variance. Typically, the following circumstances must exist:
(1) The dimensional
zoning requirements cannot be met on an existing lot due to narrowness,
shallowness, or irregular shape, or the topography or natural characteristics
of the site inhibit the construction of a principal or accessory structure
in compliance with ordinance standards.
Because Orchard
Lake Village is a lakefront community that places high regard on preservation
of natural features and topography, unusual characteristics of the
property are frequently cited by applicants as justification for a
variance. For example, a parcel of land might slope so steeply on
one side that it is not feasible to construct a dwelling without violating
minimum setback requirements).
(2) The problem
cited by the applicant creates a practical difficulty which is unique
and is not shared by neighboring properties in the same zone. If the
ZBA finds that the situation described by the applicant is common
among other property owners, amending the zoning ordinance might be
the proper solution.
When the ZBA has
observed several variance requests from the same requirement, they
have typically requested the Planning Commission to review the ordinance
requirement to determine if it is reasonable. On some occasions, this
action has resulted in a zoning amendment. However, a zoning amendment
is not justified in all cases where there are numerous variance requests
dealing with the same issue. For example, many property owners request
height variances, but the current height standards reflect the values
and goals of the community.
(3) The practical
difficulty must not be created by an action of the applicant and either
existed at the time of adoption of the requirement from which the
variance is requested, or is necessary as a result of governmental
action. A self-created hardship is typically not a valid basis for
a variance.
Lakefront property
owners frequently build their houses as close to the lake as possible
in compliance with lakefront setback requirements. Then, a few years
after living in the house, the owner submits plans for a new deck
or patio, only to find that the deck or patio does not comply with
minimum setback requirements. In this case, the hardship was created
by the applicant as a result of his or her action to build the house
as close to the lake as possible. A variance in this case would not
be justified.
(4) The requested
variance is the minimum necessary to permit reasonable use of the
land and buildings for activities permitted in the zoning district.
Height variance
requests are common on properties where there is unusual topography,
particularly if there is a small hill in the exact location where
the building is proposed. A variance may be appropriate in this case
to account for the small hill, but properties cannot use such circumstances
ot justify a huge variance and construction of an extremely tall building.
The setback situation in item 1, above, provides another example.
If the slope of the land justifies a 2-foot front setback variance,
it would be inappropriate for the ZBA to grant a 6-foot setback variance.
(5) Granting
the variance must do substantial justice to the applicant as well
as to other property owners in the district.
When considering
a variance request, the ZBA must consider the impact on the applicant
as well as surrounding properties. The goal of the ZBA is to protect
the rights of both. For example, the ZBA is frequently requested to
grant a variance, the ZBA must consider the impact such a variance
would have an adjacent property owners' views of the lake and the
enjoyment of their property.
(6) If the ZBA
declines to grant the variance, the Zoning Ordinance regulations must
not unreasonably prevent the owner from using the property for a permitted
purpose, and must not render conformity unnecessarily burdensome.
The purpose of the
Zoning Ordinance is not to prevent use of property. Rather, the purpose
of the Ordinance is to permit development in a manner that is compatible
with existing development in the City, and that is compatible with
the goals set forth in the Master Plan. In summary, the intent of
the ZBA is to provide for reasonable use of property in the City.
It is not within the ZBA's authority, however, to use its variance
powers to simply allow a property owner to construct the largest,
the longest, or the tallest structure in the City, or to construct
a structure that is closer to the lake than any other structure.
(7) Is the hardship
the result of an action on the part of the property owner?
A development difficulty
created by the property owner is not a hardship. For instance, if
a property owner builds a house in such a manner that it would not
be possible to expand the living room without encroaching on a required
side yard, the ZBA will not recognize that as a legitimate hardship.
Hardship speaks
to whether an individual would be deprived of his property rights(i.e.,
"Can I put it anywhere I please on my lot?").
(8) Is the variance
request limited to the least possible change needed to remove the
hardship?
The variance request
should be for the minimum amount of alteration required to satisfy
the property owner's needs. As every variance request must be satisfactorily
substantiated, requests in excess of absolute needs are likely to
be rejected. This means simply that if a rear yard drops off steeply
and the property owner needs to locate the house two feet (2') into
the required front yard to compensate for this, the property owner
would have to request a variance for two feet (2'); not six feet (6').
(9) Would approval
of the variance request cause an adverse impact upon the residents
of the neighborhood?
Any infringement
of the property rights of a neighbor is likely to be caused by the
granting of a variance is cause for the variance to be denied. This
may apply to very tenuous considerations such as perceived adequate
open living space or access to sunlight.
(10) Would approval
of the variance request cause an alteration in the general character
of the neighborhood?
If the variance
approval were to alter one's property to such an extent as to provide
an inconsistency in the neighborhood, this might be cause for denial.
(11) Would approval
of the variance be inconsistent with the City's Master Plan?
This is a rare occurrence,
yet it is possible, so it should be considered carefully.
(12) Could the
hardship be remedied in some way which would not necessitate a variance?
If the variance
request is not a case of last resort, it is likely to be denied. That
is, if it can be shown that the hardship can be removed within the
guidelines of the Zoning Ordinance, the variance request will not
be approved.
As an example, a
colonial style house might fulfill one's living area needs and still
satisfy the requirements of the Zoning Ordinance, where a ranch style
house might fail.
Keep in mind that
all variances requested are considered individually. Each request
is considered on its own respective merits.
The fact that similar
variances have been granted under the same conditions or in the same
vicinity cannot be held as evidence of the worthiness of additional
variances on other property.
STANDARDS
FOR JUDGING VARIANCES
In consideration of
all proposed variations of the Zoning Ordinance, the ZBA shall, before
making any variation from the Ordinance in a specific case, first determine
that the proposed variation involves exceptional circumstances not found
in other areas of the same zone, will be in harmony with the general
purposes and intent of the Ordinance, will not in any respect impair
the public health, safety, comfort or welfare of the inhabitants of
the City, and meets the following general standards:
(1) The proposed
variance will be of such location, size and character that it will
be in harmony with the appropriate and orderly development of the
surrounding neighborhood.
(2) The proposed
variance will be of a nature that will make vehicular and pedestrian
traffic no more hazardous than is normal for the district involved,
taking into consideration vehicular turning movements in relation
to routes of traffic flow, proximity and relationship to intersections,
adequacy of sight distances, location and access of off-street parking,
and provisions for pedestrian traffic, with particular attention to
minimizing child vehicle contacts in residential districts.
(3) The location,
size, intensity, site layout and periods of operation of any such
proposed variances will be designed to eliminate any possible nuisance
emanating there from which might be noxious to the occupants of any
other nearby permitted uses, whether by reason of dust, noise, fumes,
vibration, smoke or lights.
(4) The location
and height of buildings or structures and the location, nature and
height of walls and fences will be such that the proposed variance
will not interfere with or discourage the appropriate development
and use of adjacent land and buildings or unreasonably affect their
value.
THE
PARTICIPANTS IN THE VARIANCE PROCESS
There are three (3)
major participants in the variance process. These include: (1) Building
Department and City Clerk; (2) Zoning Board of Appeals and (3) Public.
Building Department
- Will provide information and answer any questions regarding the variance
application. The Building Department and the City Clerk administer the
Zoning Board of Appeals by accepting and processing the application
and sending out the required notices to property owners within one thousand
feet (1,000') of the subject site.
Zoning Board of
Appeals - a seven (7) member board, appointed by the City Council,
will hold a public hearing and render a decision on the variance request.
Public
- without citizen participation, the Zoning Board of Appeals must substitute
its judgment for the views of the residents and property owners in the
area of the variance request.
THE
VARIANCE PROCESS
Step 1.
Secure an application for the Zoning Board of Appeals from the Building
Department and/or the City Clerk and prepare the necessary data.
Step 2. File
the application form and pay the necessary fee along with eleven (11)
copies of a sealed or notarized survey indicating the proposed work
to the Building Department of the City Clerk.
Step 3. Upon
receipt of the application form, it will be scheduled for public hearings
at the earliest available meeting of the Zoning Board of Appeals.
An application
must be received at least twenty (20) days before the next meeting of
the Zoning Board of Appeals in order to be placed on that agenda.
Meetings of the Zoning
Board of Appeals are held on the third Monday of each month at 7:00
p.m.
Step 4. All
property owners within one thousand feet (1,000') of the subject property
will be notified of the hearing by mail.
Step 5. The
petitioner will present the justification for the variance at the public
hearing.
At the time of the
public hearing, the petitioner or his designated representative must
appear to present the proposal and provide reasons for granting the
request.
The Board will hear
the petitioner's case and then any comments from the public in favor
of, or against, the petitioner's request. The Board will then vote to
either approve, deny or table the request for modification or further
study.
A variance approval
by the Board may not exceed the amount nor can it exceed the specific
items contained in the notification. However, a lesser variance may
be approved without prior notice.
In order for the ZBA
to act on a matter before them, a quorum of four (4) members must be
present. The affirmative vote of four (4) members of the Board is required
in order to approve a matter.
The decision of the
ZBA shall be final. However, a person may submit an alternative or an
entirely new request or appeal the decision to the Circuit court.
Step 6. The
granting of the variance become official only upon issuance of a building
permit for the subject property.
Failure to comply
with any stipulations and conditions associated with the granting of
the variance request is cause for the approval to become null and void.
No order
to the ZBA permitting the erection or alteration of a building, open
air land use or parking lot shall be valid for a period longer than
six (6) months unless such use is established within such period; provided,
however, that where such use permitted is dependent upon the erection
or alteration of a building, such order shall continue in force and
effect if a building permit for the erection or alteration is started
and proceeds to completion in accordance with such permit.
ZONING
BOARD OF APPEALS FEES
The fees established
by the Zoning Board of Appeals for hearing variances are:
Zoning: $150.00
Fence: $150.00
Wetlands: $150.00
When a variance request
is tabled, the City requires an additional $75.00 be submitted to cover
the expense of re-notifying all property owners within one thousand
feet (1,000').
Amended: 04/15/98
Close
Window