(old web site)
Schindler's
Land Use Page
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(old web site) |
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Schindler's |
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| Land Use Questions and Answers, Zoning Special Use & PUD |
| 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 |
| Conditional Uses (compared to Special Uses and Permitted Uses) | What is the difference between conditional and special
uses? (March 3, 2001, updated May 12, 2006) |
In Michigan, statute establishes
two types of zoning permits: 1. Permitted uses, (aka use by right, primary uses, zoning permit, etc.) It is the simple permit, go to the zoning administrator with a permit application, and get the permit the same day or in a day or two with the decision being made by the zoning administrator. 2. Special uses, (aka conditional uses, special approval uses, etc.) This is where one goes to the municipality with a permit application and someone (usually the zoning administrator) looks at the application to make sure it is complete, and if complete forwards it to the body specified in the zoning ordinance for review and decision (by the zoning board, planning commission, zoning administrator) after notice to nearby residents and property owners has been sent out. Also nearby residents and property owners can petition for a public hearing on the application. There is no mention of "conditional use" in the statute. Some communities have invented the use of "conditional use" and "special use" etc. to set up different types of handling for different types of special use permits. For example, a special use permit might involve: 1. Submit application 2. Review for completeness 3. Send out notices for hearing 4. Hold hearing 5. Public body (zoning board, planning commission) makes decision 6. Permit issued. And a "conditional use" permit would be a special use permit with an accelerated process: 1. Submit application 2. Review for completeness 3. Send out notices that application is being considered (and if a hearing is asked for, then go to step 3 for special use permit, above) 4. Public body (zoning board, planning commission) or zoning administrator makes decision 5. Permit issued. BUT, there is no consistency from municipality to municipality on how these terms are used, or which would be the more complex process. Other communities (instead of making up the name "conditional use", make up some other name (special use I, special use II, etc.) See section 502 of PA110 of 2006, as amended, (M.C.L. 125.3502). ----Kurt H. Schindler |
| Changing an Existing Special Use Permit | How does one add on, or change, an already approved
special use permit. (June 14, 2001) |
If there are not specific directions
in your zoning ordinance how this is handled, then you are "amending the
special use permit". The process is exactly the same as how you
issue a special use permit in the first place: (application, revised
site plan, send notices to everyone within 300 feet, hearing, deliberation
and decision). If the zoning ordinance has different directions (e.g. for "minor non-substantive changes" the zoning administrator may approve, for "non-minor substantive changes" follow the same procedure as used for granting a special use permit) then follow what the ordinance says. ----Kurt H. Schindler |
| Special Use Permit and Variance | How does one handle a special use permit application,
that also needs a variance for approval? (June 14, 2001) |
When a special use permit proposal also
needs a variance, the applicant can choose which s/he chooses to ask for
first (variance or special use permit). Some zoning ordinances will
specify that one or the other is asked for first. If that is the
case, then follow the ordinance. If the variance is asked for first, then the Appeals Board reviews the case and decides if the variance can be issued ("practical difficulty" or "unnecessary hardship"). The appeals board may (does not have to) condition the variance upon the applicant also receiving the special use permit. Then the motion to do so is known, but the variance waits until both are over. Some might argue that the variance can not be issued conditioned on a special use permit. If the variance is approved, then they have the variance regardless. If the special use permit is asked for first, then the Planning Commission/Zoning Board reviews the case and decides if the special use permit can be issued (standards in the ordinance, site plan approval) and determines that a variance would be needed. The Planning Commission/Zoning Board may (and virtually always should) place a condition on the approval that the permit is issued only if the variance is also approved. There is no doubt that this condition can be placed on a special use permit/site plan approval. Then the actual permit/site plan approval is not issued or delivered until after the Appeals Board has acted favorably. ----Kurt H. Schindler |
| Zoning Permit Issued by Mistake | 1. Does a zoning authority have any recourse
after issuing a zoning permit for a building when construction has either
halted or is not making progress? 2. If so, does a provision that would require reasonable progress (whatever that may be) to be made over X-period of time to avoid reapplying for a new permit legally allowed under zoning laws. Or are there other options? Also, how (in Michigan) does one account for poor weather conditions, financial problems, labor disputes, etc. if one imposes such a restriction? 3. It seems to me that there are some options but it exposes a municipality to some real potential problems because (for example) if construction is delayed or halted for whatever reason and the applicant is forced to come back for another permit and then it is denied would that constitute a taking? 4. Another thought (as I sit here thinking and typing - a dangerous combination) could this be regulated via a nuisance ordinance type of situation? (July 11, 2001) |
1. No (with exception),
and maybe. No: If it is a regular zoning permit that permit runs with the land. The person who got the permit can sell his property and the permit. Now the permit is with the new property owner. However, the state construction code permit is good for only six months if construction did not start (and good for as long as it takes to build it, so long as there is construction activity at least each six months). One might argue, when the construction permit is allowed to lapse, then to get a new construction permit, one needs a new zoning permit. The idea that a zoning permit would expire as a result of non-use can clearly happen if the zoning ordinance text clearly says zoning permits expire after a given length of time. If that language is not in the zoning ordinance, then the answer is "no." Maybe: If the permit is a special use permit then it is common for an expiration date to exist. But again, only if the zoning ordinance text clearly says zoning permits expire after a given length of time. If that language is not in the zoning ordinance, then the answer is "no." 2. All that would have to be specifically spelled out in the zoning ordinance. I have never seen an ordinance that addressed weather, financial, labor etc. Maybe the easiest way to do it would be to tie it to the state construction code system: If six months with no activity goes by, the permit expires. 3. Remember "due process" and "equal treatment," and make sure your zoning administrator, planning commission, and appeals board remembers all that too. If a person gets a zoning permit, fails to act, and the permit expires (because the zoning has language saying that happens). He applies again for the same permit (same site plan, same property, and no new zoning amendments were adopted) what could possibly be the reason for denial the second time if equal treatment is being practiced? There are valid reasons for wanting a permit to expire. From time to time one does amend a zoning ordinance (and now there are new standards, or the land is in a different zoning district) and one might not want automatic renewal, or continuation, of a land use under an old permit. But if nothing has changed, then the answer should be the same. 4. No. ----Kurt H. Schindler |
| Transfer of Development Rights (TDR) | Do you have some easily digestible info on Transfer
of Development Rights. - Or other legal method of providing an owner increased
density on one parcel in exchange for non development of a second parcel? (May 15, 2006) |
Michigan may be authorizing
Transfer of Development Rights (TDR). On this set of land use web page is material about that from our 2004 new land use
legislation training workshops. You will want the following: PowerPoint slides, and look at pages 6-9. Detailed speaker notes, and look at pages 9-11. (Both these are found at this web page.) While this is generic (because it is from another state) it does a good job explaining the concept. The Ohio State University Extension land use team material on TDR is here. Another is University of Wisconsin, which has this fact sheet on TDR. From MSU (written for the legislature so it may not what you want for "easily digestible info" on TDR): "Transferable Development Rights; A Policy Brief for the Michigan Legislature" by Michigan State University's Institute for Public Policy and Social Research (IPPSR) Some others: From Rutger's University Extension (New Jersey). From Cornell University Extension (New York). (This one has an urban application in its example illustrations.) From Eastern Michigan University geography school. ----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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