In City of Detroit v City of Detroit Bd of Zoning Appeals et al., Docket No. 339018 (October 2018), a published Michigan Court of Appeals Opinion, the Court of Appeals reviewed whether the Detroit Board of Zoning Appeals had authority to grant a hardship variance where the owner of property knew of the alleged hardship before purchasing the property. In this case, the City of Detroit appealed a decision by the Detroit Board of Zoning Appeals granting a hardship variance to International Outdoor (IO) which allowed it to erect a billboard on property it purchased despite the fact that IO knew when it purchased the property that it could not erect a billboard under the ordinances. The Court of Appeals upheld the granting of the hardship variance to IO.
In 2011, International Outdoor Inc. (IO), purchased a small parcel of vacant property in Detroit that was located within the Grad Boulevard overlay zone. The property measured 30 feet wide by 184 feet long. In 2015, IO submitted an application for a permit to erect a billboard on the property. The Detroit City Planning Department denied the application, referencing the Grand Boulevard overlay zone. IO appealed to the BZA, seeking a hardship variance. The BZA granted the variance.
The City argued the BZA did not have the authority to grant a use variance in an area of Detroit designated as the Grand Boulevard overlay zone, which bans off-site advertising signs. Even if the BZA did have the authority, the City argues IO could not prove the ordinance imposed an unnecessary hardship because it “purchased the hardship,” i.e., it purchased the property with knowledge that the ordinance banned “off-site” advertising signs.
The Court of Appeals concluded that the BZA had the authority to grant a use variance in an overlay zone, and the BZA did not err when it granted IO’s request for a use variance based on unnecessary hardship. Although there is a “Self-Created Hardship Rule” that prevents an applicant for a variance from creating the hardship from which they claim a variance, that rule did not apply to this case because IO did not take any action to create the hardship. Specifically, it did not partition, subdivide or otherwise physically alter the land after the enactment of the ordinance.
In holding that the BZA had the authority to grant a use variance in an overlay zone, the Court cited Janssen v Holland Charter Twp Zoning Board of Appeals, 252 Mich App 197 at 201 (2002). The Court held “[a] township board of zoning appeals has the authority 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.”
In determining the issue of whether the hardship was caused by the landowner’s actions, the Court cited numerous cases, eventually concluding that “IO simply purchased the property at a time when there was no permitted reasonable use and took a business risk that the BZA would grant a variance to erect the billboard in the overlay zone.” Therefore, the ruling was affirmed.
A link to the opinion can be found here: https://law.justia.com/cases/michigan/court-of-appeals-published/2018/339018.html.
This article was written by Ryan Hansen, Law Clerk
