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| Land Use Questions and Answers, Zoning Appeals Board |
| Have a question on land use, planning, and zoning? Please email it to: schindl9@msu.edu . Please tell me what county you are from. |
| A large part of Extension's service is to respond to email questions on land use, planning, and zoning. This page contains questions which are among the more common ones received. The questions and answers here are compiled from those I have received/responded to, and those I have participated in discussion with on the Michigan Society of Planning discussion board. | The materials here, are written for the specifics of planning and land use law in Michigan. | Please send your comments and suggestions to me, to make these pages a better service for you. Send to schindl9@msu.edu . |
| Topic | Question | Answer |
| Conflict of Interest | One of my neighbors
is also a member of the township zoning board of appeals, on a case concerning
my property? Is there anything that would restrict him from his input
or vote when the appeal goes to the zoning board of appeals?
(March 31, 2003) |
A situation where
your neighbor should not vote is a real possibility. (It is
not "just not vote." When one should be removing one's self from
an issue it means: not voting, not participating in the discussion
or debate on the issue, not attending that part of the meeting (or if
one does, sit back in the audience section of the room and keep quiet).
If a neighbor has a conflict or not depends on a number of factors. The main one would be what the Appeals Board's Rules of Procedure (by-laws) says. Some by-laws spell out specific guidelines that are used to determine if a conflict exists or not. One would have to read the by-laws to know what is says. Absent any guidance in by-laws, then there are two schools of thought for if a neighbor has a conflict (and thus should remove them self) or not: First is the conflict extends only to those neighbors who own property immediately next door (contiguous parcel of land). If one starts to say it might include someone that is farther away, then the issue becomes "how far?" and on what basis: a block?, two blocks?, four blocks? And why not the entire municipality (in which case everyone would always have a conflict)? Thus the conclusion is a conflict should only be considered to exist for owners and residents of contiguous parcels of land. The second school of thought is to use the notices as an indicator. For example, when the hearing for the appeal is announced, statute requires a certain set of property owners and residents get notice of the meeting. Presumably the legislature decided that set of property owners and residents are "interested" in the issue and should get the notice. If a member of the appeals board is one of those which receives that notice, then they have an "interest" and should remove them self from all aspects of the case (e.g., call in an alternate). Many times the by-laws will spell out which of the above two sets of thinking is the one used in your community. If the by-laws do not address the issue, then it is up to the individual who may have the conflict to decide. On the opposite side of the coin, an appointed member of an appeals board has a duty to perform. They can not decide not to vote cause it is uncomfortable, or may not be popular with others in his/her neighborhood. If there is not a conflict, then that person has a duty to do their appointed job. One can also get in just as much trouble for failure to perform their duty. For additional reading: P.A. 566 of 1978, as amended, (being Incompatible Offices Act, M.C.L. 15.181 et. seq.) P.A. 318 of 1968, as amended, (being Conflict of Interest M.C.L. 15.301 et. seq.) P.A. 196 of 1973, as amended, (being Standards of Conduct for Public Officers and Employees Act, M.C.L. 15.341 et. seq.) P.A. 317 of 1968, as amended, (being Contracts of Public Servants with Public Entities, M.C.L. 15.321 et. seq.) (The statutes can be read and downloaded at the Michigan Legislature web site .) Michigan Society of Planning’s Community Planning Principles . AICP/APA Ethical Principles in Planning (May 1992) . AICP Code of Ethics and Professional Conduct (October 1978, amended October 1991), along with AICP Advisory Rulings on the same. ----Kurt H. Schindler |
| Ethics with a possible conflict of interest | I would like your opinion (expertise)
on a situation. Is it ethical for a Planning Commission member to approach
applicants/representatives who have come before the Planning Commission to
do work for them (construction)? The approach could be after a meeting
is adjourned in the hallway, outside the building or via phone.
(March 31, 2003) |
First, the activity
is "legal" in the technical sense. The stuff covered by statue can be
found in: *P.A. 566 of 1978, as amended, (being Incompatible Offices Act, M.C.L. 15.181 et seq.) *P.A. 318 of 1968, as amended, (being Conflict of Interest M.C.L. 15.301 et seq.) *P.A. 196 of 1973, as amended, (being Standards of Conduct for Public Officers and Employees Act, M.C.L. 15.341 et seq.) *P.A. 317 of 1968, as amended, (being Contracts of Public Servants with Public Entities, M.C.L. 15.321 et seq.) They can be read and downloaded at the Michigan Legislature web site . Ethics, however is another matter. The Michigan Society of Planning has written a set of Community Planning Code of Ethics . For Michigan this is the only set of written ethics guidelines for appointed members of zoning boards, planning commissions, appeals boards. Some of the paragraphs from this Code read: "2. Continuously strive to achieve high standards of integrity and professionalism so that the public respect for the community planning process is maintained." "3. Abstain from all discussion and decisions in which an appearance of an impropriety or conflict of interest may be perceived. Refuse any personal gift, tangible or intangible that may be perceived as influencing decisions or actions." "8. Avoid any act or decision that would tend to promote individual or special interests at the expense and/or dignity of community planning." The Society has been advocating that communities adopt a statement of ethics, and puts forward their Community Planning Code of Ethics as a model for this purpose. The American Planning Association's American Institute of Certified Planners also has Ethical Principles in Planning . However the Principles are geared more toward the professional planner (e.g., building inspector, zoning administrator, city's planner). It reads, in part: 4. Abstain completely from direct or indirect participation as an advisor or decision maker in any matter in which they have a personal interest, and leave any chamber in which such a matter is under deliberation, unless their personal interest has been made a matter of public record; their employer, if any, has given approval; and the public official, public agency or court with jurisdiction to rule on ethics matters has expressly authorized their participation; 5. Seek no gifts or favors, nor offer any, under circumstances in which it might reasonably be inferred that the gifts or favors were intended or expected to influence a participant's objectivity as an advisor or decision maker in the planning process; 9. Not use confidential information acquired in the course of their duties to further a personal interest; The question you pose is a tough one. I can see too different ways to view this. And when conferring with colleagues on this question, even more possible responses emerge. My first reaction is to say the behavior of a member of a planning commission approaching the applicant right after the meeting to obtain the applicant's business is suspect because the member is taking advantage of his position on the Planning Commission to solicit business. Implied with the sales pitch is the stuff that goes along with that: "I voted for your permit, so give me the work." "I'm connected with the city, so hire me to have a smoother time with inspections," etc. On the other hand John Amrhein (MSUE State and Local Government Agent) points out that any contractor can make them self aware of each applicant before the Planning Commission and can approach that applicant for the job before, during, and after the meeting. The member of the Commission is not privy to any secrets. The application, the fact the issue is on the agenda, etc. is all public record. There does not appear to be a case of the member using "inside" information to his advantage. (The exception would be in the instance when a developer approaches the city, or Economic Development Office, in confidence about a possible project. But this is occurring before a public zoning permit application is applied for.) Patricia E. Norris, Natural Resource Economist, MSU Professor and Extension specialist says economists have a term -- moral hazard -- that describes situations where people can do the "wrong thing" because of a potentially good outcome. For example, if crop insurance programs are paying very good benefits, what incentive does that instill in a farmer to avoid all sorts of risks to his crops? So, if the member of the planning commission argues in favor of a bad approval because he/she sees a business opportunity, that individual is faced with a moral hazard. Most literature says that avoiding being in those situations is preferable. On the other hand, if the application is not problematic, and the member sees a business opportunity after the fact, then it is different. Of course, that requires that you fully understand the person's intentions. It seems that if a member sees that it is going to be contentious, then it would be wise to recuse. Sarah (Genshaw) O'Donnell, MSU Extension Land Use Agent in Newaygo County comes at this from the perspective of the American Institute of Community Planners ethics discussion: Even though it occurred after the meeting, the Planning Commission member/contractor still has to guard against substantial conflicts that would occur if they participated in influencing the review process which affected the private development interest. Especially if the member sees his 'personal interest' as a 'potential benefit' when participating as a member at the meeting Wayne R. Beyea, MSU Extension State Coordinator for the Citizen Planner Program indicates his judgment indicates it is okay for the Planning Commission member to contact the applicant later (after the meeting, like the next day, etc.). However, such a contact should include a statement that "I cannot give you special treatment and may require me to remove myself from future decisions which are related to your projects." Let me close with this paragraph from an AICP Advisory Ruling on this issue: "A code of ethics should not be a what-can-I-get-away-with code. It should not be tortured into loopholes and technicalities that would allow a person to be formally correct while ethically wrong. The AICP Code looks for 'more than the minimum threshold of enforceable acceptability. It sets aspirational standards that require conscious striving to attain.'" For more reading see: Michigan Society of Planning’s Community Planning Principles. AICP/APA Ethical Principles in Planning (May 1992) . AICP Code of Ethics and Professional Conduct (October 1978, amended October 1991) , along with AICP Advisory Rulings on the same. ----Kurt H. Schindler |
| Cross Membership on Appeals Board | Is it proper (legal?) for the chair of
the planning commission, who is appointed as the Planning Commission representative
to the Board of Appeals, to also serve as chair of the Board of Appeals?
(March 31, 2003, updated May 10, 2006) |
Yes, the chair
of the planning commission can be the chair of the Board of Appeals.
However, "elected officers" of the governing body that can not serve as chairperson (M.C.L. 125.3601(5)). So if the member of the planning commission who is also the member of the appeals board, is also the legislative body representative on the planning commission; then no s/he could not be chairperson. The village council, as a whole, could choose to be the Zoning Board of Appeals (they could also choose to be the Planning Commission, but could not choose to do both) (M.C.L. 125.3601(2)), let alone the mayor or any other member of council can being chair of the appeals board. See the question, below, on voting twice on the same issue. ----Kurt H. Schindler |
| Voting Twice on the Same Issue | At the
Michigan Society of Planning
conference, it was stated that "there are some situations where statute
allows holding two offices is okay (e.g. member of elected body and planning
commission, appeals board and planning commission). But one should
not vote on the same issue twice. At one of the two positions, abstain."
I believe a court ruling in this regard. Our City Attorney would like to know what case law was referenced. (October 28, 2002) |
The best source to answer your
question is a Michigan Attorney General Opinion Number 6742, which includes
several court citations. In short, the idea is due process requires that a member serving on one board, who is also on another board that reviews the decision of the first should refrain from participating in the review of any decision in which the member has previously participated in. Courts have held that the right to an impartial decision maker includes this requirement of due process in administrative hearings (Crampton v. Dept of State, 395 Mich 347, 351; 235 NW2d 352 (1975). This court case discusses at length cases of the United States Supreme Court which found that due process required that where a review of an initial decision was mandated, the decision maker must be someone other than the person who made the decision under review: The A.G. opinion deals specifically with a county planning commission member who is also a member of the county zoning board of appeals. But the principle applies to townships, cities, villages, and applies to other situations where one person sits on two boards and is reviewing the same decision. ----Kurt H. Schindler |
| No Ex parte Contact | The idea of not having any Ex parte
communications between members of the planning commission, or appeals board,
with people is not a popular concept in my township. I perceive them
to feel that the risks involved are outweighed by the inconvenience of not
changing our method of operation. (March 31, 2003) |
The purpose of "No
Ex parte contact" is so that every member of the commission, or
appeals board, gets to hear everything that is said. What is said
is done at a public meeting, not before hand. So members are not
pre-judging the case. Also so that others can also hear everything
that is said so they have an opportunity to respond. Then members
are able to hear all sides. However, your township has some options. If the ex parte thing is an issue, then maybe it would be better for your township to do site visits by the planning commission as a group, so everyone is there to hear everything. It means having to post the site visit as a public meeting and take minutes, but that is not a big thing. Every so often there will be audience that want to come and it may or may not be an issue with the landowner. And if someone still gets a phone call, or stopped on the street; remember try to tell them to come to the meeting or write a letter. If that does not work, then the contact should be reported to the rest of the planning commission along with a general content of the conversation. UofM Law Professor Clan Crawford, in his textbook (Michigan Zoning and Planning, Third Edition Includes Cumulative Supplement, 2003); by Clan Crawford, Jr.; The Institute of Continuing Legal Education; Ann Arbor), cites Kropf v. City of Sterling Heights , 215 N.W.2d 179, 391 Mich. 139 as approving of the language in Fasano v. Washington County Board of Commissioners an Oregon case) that lays out the basic framework for a valid administrative hearing. Among the basics for an administrative hearing is "having had no prehearing or ex parte contacts concerning the question at issue." The court said: "'Ordinances laying down general policies without regard to a specific piece of property are usually an exercise of legislative authority, are subject to limited review, and may only be attacked upon constitutional grounds for an arbitrary abuse of authority. On the other hand, a determination whether the permissible use of a specific piece of property should be changed is usually an exercise of judicial authority and its propriety is subject to an altogether different test. * * * 'With future cases in mind, it is appropriate to add some brief remarks on questions of procedure. Parties at the hearing before the county governing body are entitled to an opportunity to be heard, to an opportunity to present and rebut evidence, to a tribunal which is impartial in the material, having had no pre hearing or ex parte contacts concerning the question at issue and to a record made and adequate findings executed. Comment, Zoning Amendments. The Products of Judicial or Quasi Judicial Action, 33 Ohio St.L.J. 130143 (1972).' Fasano v. Board of County Commissioners of Washington County, Or., 507 P.2d 23, 26, 30 (1973)." Communities may adopt the APA (or Michigan Society of Planning) sample Rules of Procedure for possible guidelines to govern the conduct of their own meetings. An appeals board or planning commission's rules of procedure should probably reflect how the issue of ex parte contact is handled. Remember the goal: Your membership does not want to appear prejudicial: Rather you want everyone to have the same information on which to base a decision, and you want to be fair to the extent that others can hear what is said and have a chance to respond. ---Kurt H. Schindler & Gary Taylor |
|
Dimensional Variances |
What is the process that should be used to decide to
grant, or deny a variance request? (November 24, 2000, updated May 10, 2006) |
The process is spelled out
in Land
Use Series
"Check List #6 For Processing a Zoning Appeal and Variance in Michigan"
found at this web
page. ----Kurt H. Schindler |
| Use Variances and County/Township | I have not addressed this question in
some time but need an answer. I have read through PA 183 of 1943, as amended
several times now but have not found where it specifically says townships
can only do dimensional variances. I assume that PA 183 as with most enabling legislation is permissive. Therefore, since it does not specifically allow for Use Variances it cannot be done. Does anyone have specific sites from the PA 183? Are there any arguments that support for or against Use Variances in Townships? (May 29, 2002, updated May 12, 2006) |
P.A. 183 of 1943 has been
repealed and replaced by P.A. 110 of 2006, as amended, (being The Michigan
Zoning Enabling Act, M.C.L. 125.3101 et seq.). This new statute
reads: |
| Effective Date of an Appeals Board Decision | When do Appeals Board decisions
take effect --not until after the minutes are approved at the next meeting?
That next meeting could be months away! Can use of a form make that
decision occur faster? I reviewed some old training materials in my possession. They were from a session put on by Young, Graham & Elsenheimer, P.C. They had a form that they handed out. It noted some legal citations: MCLA 125.293a; MSA 5.2963(23a) and MCR 7.101. The other 2 did nothing to illuminate this issue of the decision not being final until the minutes are approved. The entire reason the township was considering this form was to provide the applicant with documentation that would start the 21 day clock running. If it is running just by virtue of the decision having been made, and no minute approval is required to make the decision final, well, we don't need it. (June 18, 2001, updated May 10, 2006) |
MCLA 125.293a has been repealed
and replaced by P.A. 110 of 2006, as amended, (being The Michigan Zoning
Enabling Act, M.C.L. 125.3101 et seq.). Thus much of this confusion
has been cleared up. Now the new statute reads: An appeal under this section shall be filed within 30 days after the zoning board of appeals certifies its decision in writing or approves the minutes of its decision. The court shall have jurisdiction to make such further orders as justice may require. An appeal may be had from the decision of any circuit court to the court of appeals. (M.C.L. 125.3606(3)) |
|
Variance Expiration Temporary Variances |
A variance was granted in 1994 for a lakefront lot that
has 82 of frontage (the ordinance requires 100 ). The ordinance also states
that construction must begin within one year or the variance expires (the
Zoning Board of Appeals (ZBA) bylaws state 6 months). If construction
did not begin within one year, has the variance expired, or did the parcel
become a permanent nonconforming lot when the ZBA approved it in 1994?
(May 31, 2002) |
The variance stands. One
can not grant "temporary" zoning permits or variances in Michigan.
(The only exception are special use permits for activities which by their
vary nature are temporary. Such as a gravel pit --because one knows
the gravel will be depleted and thus the gravel pit would then cease.
Actually extraction activities are about the only things where "temporary"
approval can exist.) The reasoning goes something like this: If the facts existed to approve it the first time, and then later someone came along and asked for the same thing under the same zoning ordinance, for the same parcel, there should not be any way for the answer to be any different while also providing equal treatment. Courts have thus concluded that for all practical purposes, then, once the variance or zoning permit is issued, it is forever --rather than making someone ask again when the answer should/would be the same. The appeals board should remove the bylaws clause about a six month expiration. ----Kurt H. Schindler |
| Variances do not go away | 1. Once a variance is granted it "runs with the
land." Can it be repealed in any way by a Zoning Board of Appeals (ZBA)?
2. We have an individual in town that applied for a dimensional variance (for construction of an addition) and due to the nature of his property (he barely qualified) was granted a minimal variance. He has subsequently been forced to raze the existing house due to dry rot and foundation collapse. Does the variance still stand? 3. I am sure that it does even though he will have to comply with all other zoning criteria when he rebuilds (Between us, the real issue is that this person is unpopular and the ZBA will not give up on trying to "get him" because they do not like him. -- They did not want to grant it to him in the first place but the Findings of Fact process pointed out that they had no real reason to deny it and they can't stand that. They are under the impression that once the structure is gone the variance goes away). 4. Does a variance, granted under one zoning ordinance, remain valid if a new zoning ordinance is adopted? (June 20, 2002) |
1. No. 2. Yes. 3. The variance does not go away. Sometimes one has to make decisions one does not want to make. 4. Yes. ----Kurt H. Schindler |
|
How to Appeal and Appeal. Appeals are public record. How it Influence an Appeal Decision |
My husband
and I have built a duplex, and, to make a long story short, it is located
4 feet too close to the road. We had a variance hearing with the
Township and they have denied it, declaring we have to remove 4 feet from
the front of our duplex. Tearing off 4 feet of our house just seems so ludicrous to me, not to mention the financial repercussions this would create. 1. Can you suggest a direction or course of action? 2. Are previously granted variances public domain and from where would I obtain copies of them? 3. Is there some sort of petition I can gather from the neighbors who will all be horrified if we tear the front off of our duplex? Sort of like a reverse protest? (November 15, 2002) |
Try reviewing
"Appeals & Variances: How to Participate in the Zoning
Process" at this
web site . 1. At this point, after the appeals board has already denied the variance request, the next step is circuit court. The first thing to do for that is to hire a lawyer. 2. Records of previous variances are public record. You have the right to go to the local government and view them without charge. You have the right to buy copies of them (for only the cost of reproduction). If you buy copies, the government must provide them within a set number of business days from the date the request is received. 3. If your local appeals board is doing their job, the petition, or some other type of protest, should not weigh in on their decision. There decision should only be based on the review of standards which is outlined in the flyer "Appeals & Variances: How to Participate in the Zoning Process" . ----Kurt H. Schindler |
| Schindler's Land Use Page: Land Use Page | Education catalog | Schedule of programs| Pamphlets |for people who are not members of local boards | questions and answers | land use links | Old Stuff | Indicia, disclaimer, etc. |  |
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| 2001 Planning & Zoning Amendments | 2004 Land Use Legislation | 2006 Michigan Zoning Enabling Act | 2008 Michigan Planning Enabling Act |Kurt Schindler | |||||||||
| Kurt H. Schindler, Regional Land Use Educator, MSU Extension, Wexford County; 401 N. Lake Street, Cadillac, Michigan 49601 | (231)779-9480 |schindl9@msu.edu | fax(231)779-9105 | Map to office | |||||||||
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