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Thread: Variance for a zoning district: don't you need a parcel first?

  1. #1
    Cyburbian Veloise's avatar
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    Variance for a zoning district: don't you need a parcel first?

    One of my site acquisition agents reports an interesting conversation with a Twp zoning administrator. (Hey, I was one once!)

    WCF (cell tower) is permitted by right on Twp property. The two choices are a park on a major waterfront (I can hear the public comments now), and a postage stamp that won't meet setbacks.

    The ZA recommends obtaining a variance to allow a WCF in the Ag district (larger parcels, can meet setbacks) with a SUP.

    In my experience, it's customary to request or issue a variance on a specific site. And if the entire zoning district needs an amendment, that should be done rather than allow a wireless company to re-write the ordinance.

    Thanks for any comments. This situation is in the grand and glorious state of Michigan.

    (I might add something to the career advice thread regarding mail-order planning degrees)

  2. #2
    Cyburbian mike gurnee's avatar
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    I never worked Michigan, but the 4 states I have been in would require a zoning code amendment to add a special use to a zoning district. A "variance" sounds so wrong.

  3. #3
    Cyburbian Joe Iliff's avatar
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    Something in there sounds wrong to me. If WCF's are allowed in AG with an SUP under the ordinance, where is the need for a variance? This may be a case where people overuse the word "variance" and really just mean a change to the text of the zoning ordinance to add WCF's as a permitted use with SUP in more zoning districts.

    I find people using "variance" all the time for SUP's, text amendments, rezoning with conditions, relief granted by someone empowered by the code, and anything that isn't how the ordinance is usually applied.
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  4. #4
    Here in Indiana, a development standards variance could be authorized only if the Board found that there was some pratical difficulty about the property that would prohibit it from being developed as zoned. It's a pretty high threshhold, but then it should be.

    So, I'd agree that a parcel is requisite for issuing a variance.
    Last edited by Gedunker; 11 Feb 2008 at 1:36 PM. Reason: great speller, terrible typist
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  5. #5
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    It sounds as if your office is proposing a third alternative, somewhere in the Ag district, which doesn't currently permit cell towers. In this case, I agree with Mike G. You need a text amendment to permit cell towers in the Ag district as a SUP. You'll also need to decide if the township wants to be the "applicant" for the text amendment or if you want to place that responsibility with the company that wants the tower. In my workplace, if we have the opinion that the cell towers would be ok within the Ag district, we'd (as a Village) would propose the text amendment. If it's a change we wouldn't support, then the applicant would petition for the amendment.

  6. #6
    Cyburbian Veloise's avatar
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    More backstory has come in...

    The ZA is stating that P.A. 110 of 2006, the Michigan Zoning Enabling Act, prohibits a Twp from granting a land use variance. I think he's misreading Sec 604 where it states that Twps must have had an ordinance in place as of 2/15/06. I've sent my interpretation to my contractor ("the authority to grant use variances is permissive...").

    Read all about it:
    http://web5.msue.msu.edu/lu/pamphlet...nablingAct.pdf
    I quoted off page 37.

    (note to ZA: it's an enabling act, not a thou shalt not act)

  7. #7
    Cyburbian btrage's avatar
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    Quote Originally posted by Veloise View post
    More backstory has come in...

    The ZA is stating that P.A. 110 of 2006, the Michigan Zoning Enabling Act, prohibits a Twp from granting a land use variance. I think he's misreading Sec 604 where it states that Twps must have had an ordinance in place as of 2/15/06. I've sent my interpretation to my contractor ("the authority to grant use variances is permissive...").

    Read all about it:
    http://web5.msue.msu.edu/lu/pamphlet...nablingAct.pdf
    I quoted off page 37.

    (note to ZA: it's an enabling act, not a thou shalt not act)
    The ZA is correct in that unless the Township either previously allowed use variances by ordinance, or had previously granted a use variance, the Township is prohibited from granting use variances. However, if they already had use variance provisions in place or had granted one, then they can continue to do so.

    Michigan Township's have never expressly had the power to grant use variances and have only been allowed to grant them because of various court decisions over the years, which were often in conflict. Grabow v. Macomb Township (2006) cleared up this issue and led to the language in the new ZEA.

  8. #8
    Cyburbian
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    I moved out of Michigan a few months ago, but I remember hearing this summer that the Michigan legislature was rethinking its ban on use variances (for Townships only). You might check with the MTA or the MML on the issue - they had position papers and specific legislative staff assigned to a clean-up bill.

    I'm no fan of use variances - they allow the ZBA to serve as a legislative body and usurp the power of the Township Board/City Council who has ultimate control of the content of the zoning ordinance. If the WCF wants in the Ag zone and it's not currently allowed, then they should propose a text amendment to the zoning ordinance - not a use variance.

  9. #9
    Unfrozen Caveman Planner mendelman's avatar
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    Quote Originally posted by southsideamy View post
    I'm no fan of use variances - they allow the ZBA to serve as a legislative body and usurp the power of the Township Board/City Council who has ultimate control of the content of the zoning ordinance.
    Well, in my Chicago suburb, we can grant land use variances, but they are not reviewed by the ZBA, but by the Plan Commission (by recommendation) and final review by the Board of Trustees (elected officials).

    As to the thread topic: I would say that a text amendment may be in order, but with really tight allowances.
    I'm sorry. Is my bias showing?

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