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Court Upholds ZBA’s Denial of Variance Because Desire to Build One’s Preferred Design is Not a Basis for a Variance

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Ronald D. Richards Jr.
Foster Swift Municipal Law News
September 2009

A Michigan court has also recently given townships clarification that a landowner’s desire to build according to that owner’s preferred design is not a basis to grant a variance. In this case, a township ZBA denied a variance request to build a single-family home on a lot within a critical dune zone. The township ZBA denied the application, finding that no extraordinary circumstances existed with respect to the property and that the variance was not "necessary for the preservation and enjoyment of a substantial property right" because other designs were available that would allow them to build the residence and garage without the need for a variance.

The petitioners appealed, arguing that changing their designs would cause them to incur significant additional expense and delay. The petitioners also argued that the ZBA’s decision was faulty as relying on a standard – that an alternative design existed that would not require a variance – that was not listed in the zoning ordinance.

The Michigan Court of Appeals upheld the ZBA’s denial of the variance. It explained that the applicants’ desire to build according to a "preferred design" was not "necessary for the preservation and enjoyment of a substantial property right" as required by the zoning ordinance. It interpreted the phrase "substantial property right" to mean the right to build on property for residential use – but not build according to a preferred design. As a result, the ZBA properly denied the variance. Risko v Grand Haven Charter Twp Zoning Board of Appeals, __ Mich App __; __ NW2d __ (2009).