Agenda - Planning Commission - 09/06/2007

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Zoning Bulletin After a meering, the board of adjustrilent denied the variance request. In its finding, the board stated that: 1) the circumstances causing the hardship were created by Schmidt, as it was his choice to place the ga- rage at the proposed location; and 2) the issuance of the variance would not maintain the essential character of the locality because it would en- croaching on setbacks established to protect the health, safety and wel- fare of the residents. Schmidt appealed the decision, ultimately leading to court. Schmidt argued that the need for a variance was not self created but, rather, it was due to the topography of the property. He further contended that the record failed to show that the issuance of the varifil""1ce would alter the essential character of the neighborhood, as the board suggested. The lower coUrt found in Schmidt's favor, reversing the decision of the board, and the board appealed. Decision: Judgment in favor of the board. The appeals court had to look at the decision of the lower court for an error of law. When making its decision, the lower court was bound to the legal principal common in zoning cases that gave strong deferen- tial preference to zoning boards. In the initial review of a zoning deci- sion by a COlli'""!, reversal was only appropriate if the board's decision was arbitrary, capricious, or illegal. If there was evidence in the record to support the board's decision, it had to be affirmed. Here, the appeals court found that the lower -court had abused its discretion by reversing the board's decision. }Jthough the appeals court agreed with Schmidt's argument that the record did not support the neigh- borhood character claim, it found that the record did support the pornon of the decision related to problems that would arise from placement of a garage 10 feet from the road right-of-way and that the hardship was at least in part self-inflicted. Because there was evidence in the record that supported the board's decision, it should not have been reversed. The chairman of the township board opposed the variance and raised legitimate concerns about snow removal, installation of water lines, and safety issues. In addition, while the record did suggest that the place- ment of the garage was restricted by the steep slope of Schmidt's prop~ erty, the record also showed that Schmidt had received permission to encroach on the road setback by placing the house 21 feet from the road right-of-way when it was built. Thus, there was some evidence to support the board's finding that the hardship was created in part by Schmidt's earlier decision over where to build the house. The court found that, especially in light of the evidence regarding the adverse impact that the proposed garage would have on the township's 6 130