Variance - runs with the land

[Hink]

Alright I have a situation that I am sure many of you have gone through.

I have a sign height variance that was approved in the 70's. The variance was for 25'. The code at that time allowed 40' tall signs. Today our code allows 6' tall signs.

Situation: The sign was removed. They want to construct a new sign.
Question: What height are they permitted at? They were approved for a 25' variance when standard signs were permitted at 40' = 65'. But today they are permitted 6' with a 25' variance = 31'.

Am I grasping for straws or have you done something like this?

They were approved for the variance, but most likely the reasoning behind it was based on the overall height being acceptable.


Thoughts?

[SW MI Planner]

I would think it'd be for the 65", as the variance of 25' was to the existing regulation height of 40', but you may want to go back and check the wording of the actual approval to see how it was worded.

[Tobinn]

This is how the Code of my fair City addresses previously approved, ummm, approvals. Whether or not your Code has such provisions I don't know. If it doesn't maybe it needs some. If it doesn't you're probably stuck with the sign and the variance.

Previously granted variances.

1. All variances granted subject to a time frame for construction which are still in effect on the adoption of this Development Code shall remain in full force and effect, including any conditions attached thereto, and the recipient of the variance may proceed to develop the property in accordance with the plans previously approved. However, if the recipient of the variance has failed to commence construction before the variance expires, the provisions of this Development Code shall govern and the variance shall have no further force and effect.

2. Any variance granted which is not subject to a time frame for construction, where the development proposal to which the variance related has not been commenced prior to the adoption of this Development Code, shall remain in full force and effect, including any conditions attached thereto, and the recipient of the variance may proceed to develop the property in accordance with the plans previously approved. However, if the recipient of the variance fails to commence construction within six (6) months of the adoption of this Development Code, the provisions of this Development Code shall govern and the variance shall have no further force and effect.

[dvdneal]

I used to having something either in the code or as a stipulation to the variance that says the variance goes away when the situation does. The sign goes down for say 6 months, the variance is no longer valid.

[mike gurnee]

What dvdneal said. Unless, of course, local politics say something else.

[mendelman]

What dvdneal said. Unless, of course, local politics say something else.

I'm in this camp philosophically and practically, as well.

[jwhitty]

Agree with the aboves. "Runs with the land," is a land transaction doctrine assuming the nonconformity exists, but with no sign, the property must be brought to code conformance. This is the same as when a nonconforming structure burns down or becomes structurally uninhabitable (the use is no longer there). So this statement: "But today they are permitted 6' with a 25' variance = 31'," is incorrect, they are permitted up to 6', as per your code. You could always suggest they reapply for a variance, using the previously granted variance as evidence. If you go that route, remind them to get a lawyer.

[Otis]

In Otisville if the thing requiring the variance is removed, the variance goes away. We would allow like-for-like repairs of the sign, but not replacement. If they wanted the new sign to be 65' they would need a new variance.