Zoning approvals are limited as to what conditions can be imposed
Local government does not have free reign for imposing conditions. An imposed condition should relate back to the zoning ordinance standards for approval.
July 20, 2016 - Author: Kurt Schindler, Michigan State University Extension
Local zoning authorities do not have a “blank check” for approving a land use with conditions. In other words, a planning commission or a zoning board of appeals cannot just decide upon conditions because it seems like a good idea or because people commenting at the public hearing advocate for it.
“Reasonable conditions may be required” by a planning commission for a special use permit, planned unit development, “or other land uses or activities permitted by discretionary decision” (MCL 125.3504(4)). A planning commission, or other approving official, can be conditionally approved for “a site plan based upon requirement and standard contained in the zoning ordinance” (MCL 125.3501(4)). A zoning board of appeals "may impose conditions" (MCL 125.3604(7)). In each of the above situations, the actual conditions being imposed need to be related back to the review of standards for approval. See this Michigan State University Extension news article on administrative decisions.
All Conditions
By "conditions need to be related back to the review of standards for approval", it means the condition imposed relates directly back to one of the standards found in the zoning ordinance. For example, in the zoning ordinance one of the standards might be “the variance does not alter the essential character of the area”. Upon review of the case, assume the ZBA found 'the variance will alter the essential character of the area' so that standard is not met. But if the ZBA imposes a condition that would change the ZBA's decision of finding 'the variance will not alter the essential character of the area', that condition relates back to, or directly addresses, one of the standards. That would be an appropriate condition to require. If the condition does not address one of the standards in the ordinance, then that is a condition that would be on weak footing.
Special Use Permit and PUD Conditions
In addition to the condition related back to the review of standards for approval, the conditions for a special use permit or planned unit development must also meet the following tests:
The conditions may include conditions necessary to insure that public services and facilities affected by a proposed land use or activity will be capable of accommodating increased service and facility loads caused by the land use or activity, to protect the natural environment and conserve natural resources and energy, to insure compatibility with adjacent uses of land, and to promote the use of land in a socially and economically desirable manner. Conditions imposed shall meet all of the following requirements:
(a) Be designed to protect natural resources, the health, safety, and welfare, as well as the social and economic well-being, of those who will use the land use or activity under consideration, residents and landowners immediately adjacent to the proposed land use or activity, and the community as a whole.
(b) Be related to the valid exercise of the police power and purposes which are affected by the proposed use or activity.
(c) Be necessary to meet the intent and purpose of the zoning requirements, be related to the standards established in the zoning ordinance for the land use or activity under consideration, and be necessary to insure compliance with those standards. (MCL 125.3504(4))
Site Plan Conditions
In addition to the condition related back to the review standards for approval, the conditions for a site plan approval can also be “based upon requirements and standards contained in the zoning ordinance, other statutorily authorized and properly adopted local unit of government planning documents, other applicable ordinances, and state and federal statutes” MCL 125.3501(4).
Variance Conditions
In addition to the condition related back to the review standards for approval, the conditions for a non-use (dimensional) variance requires that the ZBA find "practical difficulty" for the property (not the applicant) exists in order to approve a non-use variance. Practical difficulty includes:
- The practical difficulty is due to circumstances unique to the property.
- Not adversely affect adjacent properties.
- Practical difficulty is not self-created (e.g., the current owner or any previous owner did not cause the problem that caused the need for the non-use variance).
- Variance is the minimum necessary.
- There may be additional standards in the zoning ordinance.
In addition to the condition related back to the review standards for approval, the conditions for a use variance requires that the ZBA find "unnecessary hardship" for the use of the property (not the applicant) exists in order to approve a use variance. Unnecessary hardship includes:
- Property cannot be put to a reasonable use (e.g., the parcel cannot be used for a use that is permitted or a possible special use permit in the zoning district).
- Hardship is due to circumstances unique to the property.
- Variance will not alter the essential character of the area.
- Variance is minimum necessary.
- Hardship is not self-created (e.g. the current owner or any previous owner did not cause the problem that caused the need for the use variance).
- There may be additional standards in the zoning ordinance.
Those in Michigan State University Extension that focus on land use provide various training programs on planning and zoning, which are available to be presented in your county. Contact your local land use educator for more information.
