Agenda - Planning Commission - 01/03/2019

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Zoning Bulletin December 10, 2018 I Volume 12 I Issue 23 Citation: City of Detroit v. City of Detroit Board of Zoning Appeals, 2018 WL 5276473 (Mich. Ct. App. 2018) MICHIGAN (10/23/18)—This case addressed the issue of whether a board of zoning appeals had the authority to grant a use variance in an overlay zone. It also addressed the issue of whether a landowner that had purchased property on which a use was banned could prove hardship meriting a use variance for the banned use. The Background/Facts: In 1999, the City of Detroit (the "City") amended its zoning ordinance to ban off -site advertising signs in a portion of the City referred to as the Grand Boulevard overlay zone (the "Overlay Zone"). In 2011, International Outdoor Inc. ("IO") purchased a small parcel of vacant property in Detroit that was located within the Overlay Zone. The property measured 30 feet wide and 184 feet long with an area of 5,520 square feet. In 2015, IO submitted an application for a permit to erect a billboard on the property. The City's planning department denied the application, referencing the Overlay Zone ban on off -site advertising signs. IO then appealed to the City's Board of Zoning Appeals ("BZA"), seeking a hardship variance. In seeking the hardship variance, 10 claimed that the City's "ordinance scheme rendered the property unfit for any reasonable or economically feasible use due to its size and shape." IO argued that one of the only possible uses for the property would be for a billboard. The BZA agreed that this hardship war- ranted a use variance, and thus granted the IO its requested variance. The City appealed the BZA's decision to circuit court. The City argued first that the BZA did not have the authority to grant the variance in an overlay zone. The City further argued that, even if the BZA had such authority, IO's act of purchasing the property with knowledge of the ban on off -site advertis- ing, self-created the hardship at issue, thus barring the variance request. DECISION: Judgment of Circuit Court affirmed. The Court of Appeals of Michigan first held that the BZA had the authority to grant a variance in an overlay zone. Looking at Michigan statutory law defining a board's authority to grant a use variance (see MCL 125.3604) and prior case law, the court noted that a board of zoning appeals "has the author- ity to vary or modify any zoning ordinance to prevent unnecessary hardship if the spirit of the ordinance is observed, the public safety is secured, and substantial justice is done." The court also noted that under the City's ordi- nances, the BZA here had "broad power" to provide relief for any landowner who proves economic hardship. Further, the court found nothing in the the City's ordinances prohibited the BZA from granting a use variance in the Overlay Zone. Moreover, the court found that to bar the BZA from granting any variance in the Overlay Zone "may interfere with the purpose and intent" of the City's zoning code, which was to "guide and regulate the appropriate use or development of all land . . . ." Thus, the court concluded that the BZA had the authority to grant a variance to IO for the erection of a billboard, "so long as I0 could prove an unnecessary hardship." The court next concluded that IO could prove that unnecessary hardship. The court explained that to prove hardship, IO had to show substantial evi- dence of the following: "(1) the property [could] not reasonably be used in a © 2018 Thomson Reuters 3