City of Detroit v. City of Detroit Board of Zoning Appeals , 326 Mich. App. 248 ( 2018 )

STATE OF MICHIGAN
COURT OF APPEALS
CITY OF DETROIT, FOR PUBLICATION
October 23, 2018
Petitioner-Appellant, 9:15 a.m.
v No. 339018
Wayne Circuit Court
CITY OF DETROIT BOARD OF ZONING LC No. 16-001949-AA
APPEALS,
Respondent-Appellee,
and
INTERNATIONAL OUTDOOR INC.,
Intervenor-Appellee.
Before: CAMERON, P.J., and RONAYNE KRAUSE and TUKEL, JJ.
CAMERON, P.J.
The City of Detroit (the City) appeals the circuit court order affirming the decision of the
City of Detroit Board of Zoning Appeals (the BZA) to grant a use variance to International
Outdoor Inc. (IO) for the erection of a billboard. On appeal, the City argues 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. We conclude that the BZA had the authority to
grant a use variance in the overlay zone, and the BZA did not err when it granted IO’s request for
a use variance based on unnecessary hardship. Because neither IO nor its predecessor in title
created the hardship by partitioning, subdividing, or otherwise physically altering the land after
the enactment of the ordinance, the BZA could grant the use variance. Therefore, we affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
In 1999, 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. Detroit Zoning Code, § 61-
6-65. In 2011, IO purchased a small parcel of vacant property in Detroit that was located within
the overlay zone and was zoned as a B4 general business district. The property measured 30 feet
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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 Grand Boulevard overlay zone.
IO appealed to the BZA, seeking a hardship variance.1 IO claimed the City’s ordinance
scheme rendered the property unfit for any reasonable or economically feasible use due to its
size and shape. IO’s assertion was not disputed, but at the BZA hearing, several board members
expressed their concern that IO, as a billboard company, purchased the property with the intent
of one day erecting a billboard, though it knew the property was located within the overlay zone.
IO’s attorney explained that “there is no feasible or economic or functional use of this property
because of the size,” and no one “will be able to put any use on this; it would not meet parking,
would not meet open space, landscaping, any type of requirement this site could not meet.”
Instead, IO’s attorney asserted, the only possible uses for the property would be to either erect a
billboard or a cell tower—neither of which was currently allowed on the property. One board
member also questioned whether the BZA had the authority to grant a variance in an overlay
zone—which might have higher authority over other ordinances. In response, IO’s attorney
explained that “[i]t’s not higher; it is an ordinance, period. It is not a statute . . . . If you applied
that standard, then there would be no such thing as a dimensional or a hardship variance, you
would always say, that’s what the code says, . . . we’re inflexible to it.” Another board member
interjected and asserted the BZA’s purpose is to consider when to “override the overlay districts
and the signs.” Before turning to a vote, a third board member made one final observation:
Just, before we get a motion on the floor, the observation that I want to make clear
here is that if we were to approve this as a hardship, virtually any property
developer, um, in -- virtually any property developer in the city could purchase a
subsection of a piece of land in an overlay district and claim that they have a
hardship because there is no other use that they can make of this land other than
whatever it is that they bought it for; in this case, a billboard. . . . I think that what
this does is it creates a precedent that virtually obsolesces the concept of an
overlay.
Ultimately, the BZA voted to grant the variance, and the City appealed that decision to the circuit
court.2
The circuit court affirmed the BZA’s decision. In its holding, the court explained that
while IO bought the property with knowledge of the ban on off-site advertising signs, there was
no evidence that IO took any action that physically altered the property, creating the hardship
now at issue. According to the court, “[c]urrent Michigan law does not support [the City’s]
1
IO also requested a dimensional variance for the height of the proposed billboard. Eventually,
IO agreed to lower the height of the billboard so that it complied with Detroit’s height
requirements. The City raises no claim related to the site plan of the proposed billboard.
2
The City did not include IO in its pleadings on appeal to the circuit court. After the appeal was
filed, IO filed a motion to intervene, which was granted.
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argument that the Self-Created Hardship Rule bars [IO’s] variance request and the [c]ourt
declines to expand Michigan law at this time.” The City now appeals the circuit court’s decision,
claiming the BZA did not have the authority to grant the variance in an overlay zone, and even if
it did, IO’s act of purchasing the property created the hardship at issue.
II. STANDARD OF REVIEW
We review de novo the underlying interpretation and application of an ordinance. Great
Lakes Society v Georgetown Charter Twp, 281 Mich App 396, 407; 761 NW2d 371 (2008).
MCL 125.3606 provides, in pertinent part, the standard used to review the decision of a zoning
board of appeals:
(1) Any party aggrieved by a decision of the zoning board of appeals may appeal
to the circuit court for the county in which the property is located. The circuit
court shall review the record and decision to ensure that the decision meets all of
the following requirements:
(a) Complies with the constitution and laws of the state.
(b) Is based upon proper procedure.
(c) Is supported by competent, material, and substantial evidence on the record.
(d) Represents the reasonable exercise of discretion granted by law to the zoning
board of appeals. [MCL 125.3606(1)(a), (1)(b), (1)(c), and (1)(d).]
In other words, “[t]he decision of a zoning board of appeals should be affirmed unless it is
contrary to law, based on improper procedure, not supported by competent, material, and
substantial evidence on the record, or an abuse of discretion.” Janssen v Holland Charter Twp
Zoning Bd of Appeals, 252 Mich App 197, 201; 651 NW2d 464 (2002); see also MCL
125.3606(1).
III. THE BZA’S AUTHORITY TO GRANT THE USE VARIANCE
Initially, the question turns on whether the BZA had authority to grant a use variance in
the overlay zone. After review of the prevalent statutes and case law, we conclude that the BZA
had the authority to grant IO’s variance request. MCL 125.3604 defines a board’s authority to
grant a use variance, providing, in pertinent part:
(7) If there are practical difficulties for nonuse variances as provided in subsection
(8) or unnecessary hardship for use variances as provided in subsection (9) in the
way of carrying out the strict letter of the zoning ordinance, the zoning board of
appeals may grant a variance in accordance with this section, so that the spirit of
the zoning ordinance is observed, public safety secured, and substantial justice
done.
* * *
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(10) The authority granted [to cities and villages under this ordinance] is subject
to the zoning ordinance of the local unit of government otherwise being in
compliance with subsection (7) and having an ordinance that requires a vote of
2/3 of the members of the zoning board of appeals to approve a use variance.
(11) The authority to grant use variances [to cities and villages under this
ordinance] is permissive, and this section does not require a local unit of
government to adopt ordinance provisions to allow for the granting of use
variances. [MCL 125.3604(7), (10), and (11).]
We have held that “[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 if secured, and substantial justice is done.” Janssen, 252 Mich App at 201
(emphasis added).
At issue in this case is Detroit’s ordinance banning advertising signs within the Grand
Boulevard overlay zone:
Sec. 61-6-65. Advertising signs within the area bounded by Grand
Boulevard.
It shall be unlawful to construct, erect, paint, fasten, or affix any new
advertising sign, whether billboard or painted wall graphic, on any zoning lot
abutting or within the area bounded by East Grand Boulevard, the Detroit River,
and West Grand Boulevard. This prohibition in no way limits the right to
periodically alter the advertising display on billboards approved for “changeable
copy” or to repaint the display on duly licensed painted wall graphics. No
lawfully existing advertising sign within said area shall be enlarged or expanded,
except upon approval of the Board of Zoning Appeals as provided for in Sec. 61-
15-16 of this Code. [Detroit Zoning Code, § 61-6-65.]
With this backdrop, we acknowledge that the BZA has broad power under Detroit’s ordinances
to provide relief for any landowner who proves an economic hardship:
Sec. 61-4-127. Additional forms of relief.
The Board of Zoning Appeals may adopt any legally available incentive or
measure that is reasonably necessary to offset any denial of reasonable economic
use, and may condition such incentives upon approval of specific development
plans. Where the Board of Zoning Appeals finds that the denial of the application
would create a substantial economic hardship, the Board may consider additional
relief to provide an appropriate increase in market value or other benefit or return
to the petitioner sufficient to offset the denial of all reasonable economic use. The
types of incentives that the Board of Zoning Appeals may consider include, but
are not limited to, the following:
* * *
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(3) Allow the establishment of a prohibited use, provided, that the
petitioner demonstrate none of the permitted or Conditional Uses in the zoning
district is economically feasible. [Detroit Zoning Code, § 61-4-127(3).]
The BZA can provide relief necessary to resolve an economic hardship due to an
ordinance, so long as no other permitted or conditional use is economically feasible. Nothing in
Detroit’s ordinances prohibits the BZA from granting a use variance in the Grand Boulevard
overlay zone, and as stated in Janssen, 252 Mich App at 201, a board “has the authority to vary
or modify any zoning ordinance to prevent unnecessary hardship.” (Emphasis added.) The
purpose and intent of Detroit’s zoning code is “to guide and regulate the appropriate use or
development of all land in a manner which will promote and protect the public health, safety, and
general welfare.” Detroit Zoning Code, § 61-1-4. To bar the BZA outright from granting any
variances in the overlay zone may interfere with the purpose and intent of the zoning code. And
contrary to the City’s assertions, the BZA has not usurped the power of Detroit’s City Council.
Rather, Detroit’s City Council has granted the BZA broad power through the ordinances to
approve use variances when there is unnecessary hardship. Therefore, the BZA had the authority
to grant a variance to IO for the erection of a billboard, so long as IO could prove an unnecessary
hardship.
The dissent concludes that the BZA “did not have the authority to grant the [hardship]
variance at issue.” In reaching this conclusion, the dissent acknowledges that Detroit Zoning
Code, § 61-4-103 governs hardship variances and gives the BZA discretion to grant or deny a
landowner “relief.” The dissent argues, however, that the variance granted in this case
contravenes the “spirit, purpose, and intent of the zoning ordinance” as set forth in Detroit
Zoning Code, Sec 61-4-81, which establishes ten criteria for variances and administrative
adjustments. Specifically, the dissent claims:
[P]ermitting an off-site advertising sign would not merely be a grant of leeway for
a technical violation. Rather it would outright ‘permit the establishment, within
the zoning district, of [a] use which is prohibited within the district.’
Consequently, the use variance here could not possibly comport with all ten of the
criteria mandated by § 61-4-81.
We believe the dissent’s focus on § 61-4-81 is misplaced. While this provision
establishes the general standard for any variance, Detroit’s zoning code also establishes specific
standards for variances based on “substantial economic hardship.” That is the type of variance at
issue here. Detroit Zoning Code, § 61-4-127, provides “[a]dditional forms of relief” for hardship
relief petitions, which expressly grants the BZA power to “adopt any legally available incentive
or measure that is reasonably necessary to offset any denial of reasonable economic use,”
including “[a]llow[ing] the establishment of a prohibited use, provided that the petitioner
demonstrate none of the permitted or Conditional Uses in the zoning district is economically
feasible.” § 61-4-127(3) (emphasis added).
In this case, the BZA did just that. It went through the factors as required under § 61-4-
81, found no other permitted or Conditional Use, and concluded that the overlay would deprive
the property of all reasonable economic use. The city council, as Detroit’s legislative body,
expressly authorized the BZA to grant any request based on hardship in order to effectuate the
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use of land in a manner that promotes and protects the public health, safety, and general welfare.
The BZA recognized that this property has no other reasonable economic use, and denying the
variance would perpetuate a hardship caused by Detroit’s ordinances. Moreover, preventing any
development of property does not promote the general welfare and arguably raises constitutional
concerns. See Detroit Zoning Code, § 61-4-102 (applicants must have “a protectable interest in
property under the Fifth Amendment to the United States Constitution and under the 1963
Michigan Constitution”). To allow legislation, such as the Grand Boulevard Overlay, to deprive
a property owner of all use of property would certainly raise concerns under the Fifth
Amendment, and Detroit’s zoning ordinances give the BZA authority to grant a hardship
variance in this case.
Lastly, we believe the dissent’s application of the rule of expressio unius est exclusio
alterius to interpret the Grand Boulevard Overlay under § 61-6-65 is unpersuasive. The last
sentence under § 61-6-65 addresses “lawfully existing advertising signs” in the overlay zone, i.e.,
signs that would be considered non-conforming uses, and grants the BZA express power to
enlarge or expand such signs pursuant to Detroit Zoning Code, § 61-15-34. Expressly granting
the BZA authority to address a nonconforming use in the overlay zone does not, by the dissent’s
application of expressio unius, preclude the BZA’s authority to grant hardship relief petitions.
Moreover, the overlay ban cannot be interpreted as the dissent suggests because state statute
under MCL 125.3604(7) gives the BZA authority to grant use variances based on unnecessary
hardships, and §§ 61-4-101 and 61-4-127 authorizes the BZA to grant a petitioner “any legally
available incentive or measure” involving “any regulation,” including the allowance of a
prohibited use, when considering a hardship relief petition. This Court should not apply the rule
of expressio unius in order to override state statute and the City’s properly enacted ordinances.
The rule “is a tool to ascertain the intent of the legislature,” and it cannot be employed to
contradict or vary a clear expression of legislative intent. Luttrell v Dep’t of Corrections, 421
Mich 93, 107; 365 NW2d 74 (1984). For these reasons, the BZA was authorized to grant a
hardship variance within the overlay zone.
IV. HARDSHIP
The next question turns on whether IO was deprived of all reasonable economic use of
the property, and therefore, had proven the ordinance imposed a hardship meriting a use
variance. We conclude that IO made a sufficient showing of hardship.
To prove hardship, the BZA had to find on the basis of substantial evidence the
following: “(1) the property cannot reasonably be used in a manner consistent with existing
zoning, (2) the landowner’s plight is due to unique circumstances and not to general conditions
in the neighborhood that may reflect the unreasonableness of the zoning, (3) a use authorized by
the variance will not alter the essential character of a locality, and (4) the hardship is not the
result of the applicant’s own actions.” Janssen, 252 Mich App at 201.
The parties do not dispute the BZA’s findings as to the first three elements of the
hardship test. There was no argument that the small, unusual parcel at issue could be reasonably
used in a manner consistent with existing zoning, that the landowner’s plight was due to general
conditions in the neighborhood reflecting the unreasonableness of the zoning, or that the use
variance would alter the essential character of the locality. Instead, the only contention on
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appeal is whether the hardship was the result of the applicant’s own actions. This determination
turns on the applicability of the “self-imposed” or “self-created” hardship rule.
The City claims that IO created the hardship it now complains of by purchasing the
property with the knowledge that off-site advertising signs were prohibited there. We disagree.
We conclude that a zoning board must deny a variance on the basis of the self-created
hardship rule when a landowner or predecessor in title partitions, subdivides, or somehow
physically alters the land after the enactment of the applicable zoning ordinance, so as to render
it unfit for the uses for which it is zoned. Zoning boards have broad authority to grant variances
to further the purpose and intent of the zoning code. Therefore, we decline to extend the self-
created hardship rule to all instances where a landowner simply purchases the property with
knowledge of an ordinance’s applicable restriction.
Our analysis begins with Johnson v Robinson Twp, 420 Mich 115, 126; 359 NW2d 526
(1984), where our Supreme Court concluded that the plaintiffs—as the landowners—were
properly denied an area variance because “the only practical difficulty or hardship is one that
was produced by the plaintiffs’ family.” In that case, an ordinance prohibited the construction of
buildings on lots that were less than 99 feet wide. Id. at 117. Notwithstanding the ordinance, the
previous landowners subdivided the property, resulting in a parcel only 60 feet wide. Id. That
parcel was then transferred to the plaintiff, another family member, who then sought a variance
to construct a residence on the undersized lot. Id. The zoning board of appeals denied the
variance, but the circuit court and the Court of Appeals concluded that the zoning board erred
when it denied the variance because the landowners had demonstrated a hardship and “the self-
created nature of the lot was irrelevant in this case.” Id. at 118-119, 121 (quotation marks
omitted). However, our Supreme Court reversed and reinstated the board’s denial of the
variance, holding:
The zoning ordinance preceded the division of this property. Thus the plaintiffs’
problems were not caused by the township, but were caused by the division.
Since prior to the split, this land was being properly used in conformance with the
zoning ordinance, we can see no sense in which the township can be said to have
unconstitutionally deprived the plaintiffs of their property rights. On the facts of
this case, neither can it be said that the Zoning Board of Appeals abused its
discretion. [Id. at 126.]
Stated differently, a land owner is not entitled to a hardship variance if the parcel had a
reasonable use under the zoning ordinance and the landowner’s subsequent act of splitting the
property renders the property unfit for the uses for which it is zoned.
After Johnson, this Court issued a number of decisions applying the self-created hardship
rule in different contexts. In Bierman v Taymouth Twp, 147 Mich App 499, 502; 383 NW2d 235
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(1985),3 we addressed whether the zoning board of appeals properly denied a special-use permit
for a junkyard on property zoned for A-1 agricultural. The property at issue had two defining
characteristics—a portion that was used for farming and a portion “much less susceptible to
development” consisting of a swamp area caused by sand-mining operations by the previous title
owner, the plaintiffs’ grandfather. Id. at 505-506. When addressing the swamp-portion of the
property, we upheld the board’s denial of a zoning change and concluded that this was not “a
situation where a zoning ordinance renders the land, in its natural condition, unadaptable to any
reasonable use permitted by the ordinance. Rather, the affirmative actions of the previous
owners have changed the basic nature of the property from that capable of agricultural adaptation
to a swamp which, in its present form, is useless to the plaintiffs.” Id. at 507. In reaching our
conclusion, we acknowledged the case’s factual similarities with Johnson and reasoned, like in
Johnson, that if the landowners’ property “cannot be utilized in its present condition for any of
the uses permitted under the ordinance, they have no one to blame but their grandfather.”
Bierman, 147 Mich App at 506-507. In other words, the grandfather—not the zoning
ordinance—imposed a self-created hardship on the land that followed the successors in title
because he “voluntarily disrupted the natural condition of the land so as to make it useless in its
resulting state.” Id. at 507.
In Cryderman v City of Birmingham, 171 Mich App 15, 18-19; 429 NW2d 625 (1988),
the plaintiffs purchased Lot 92, where they resided, and two adjacent unplatted lots that they
used “as a side yard and lawn for their residence on Lot 92.” At the time of purchase, a city
ordinance prevented the construction of residential buildings on unplatted lots like the plaintiffs’
lots. Id. at 19. Eventually, the plaintiffs sought a hardship variance that would permit them to
sell their two unplatted lots as building sites. Id. Their request for a variance was denied, and
the circuit court affirmed the BZA’s decision. Id. at 19-20. This Court, relying on Johnson,
concluded that “the only practical difficulty or hardship was not caused by the zoning ordinance,
but by [the] plaintiffs’ decision to sell the Property separately from Lot 92.” Id. at 22. Thus, the
plaintiffs could not properly claim a hardship variance because the Property had a reasonable use
as a “side yard” and “lawn” under the applicable zoning ordinance and only the plaintiffs’
proposal to develop the property in contravention of the zoning ordinance would result in a self-
imposed hardship. Accordingly, we concluded the “BZA did not err in determining that [the]
plaintiffs’ hardship was self-imposed or in denying [the] plaintiffs’ request for a variance on that
basis.” Id.
In Janssen, the landowners sought to rezone 100 acres of property from an A-
Agricultural Zoning District to an R-1 Single Family Residential Zoning District and to allow the
construction of a 250-unit residential development on the property. Janssen, 252 Mich App at
198-199. The landowners successfully argued to the zoning board of appeals that the zoning
created an unnecessary hardship because rising property taxes caused the land’s zoned uses to no
longer be economically viable and could “not reasonably be used in a manner consistent with
3
This Court is not bound by its opinions issued before November 1, 1990. MCR 7.215(J)(1).
However, earlier Court of Appeals cases may nonetheless be persuasive authority. DC Mex
Holdings LLC v Affordable Land LLC, 320 Mich App 528, 543 n 5; 907 NW2d 611 (2017).
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existing zoning.” Id. at 199, 201. The circuit court upheld the zoning board’s decision, and this
Court affirmed. Id. at 199, 202. In addressing whether the hardship was self-created, we
concluded that the “evidence supports the finding that the hardship is not the result of the
applicants’ own actions. The increasing taxable value of the property and the comparatively low
rental income derived are not ‘self-created’ burdens.” Id. at 202-203.
Finally, this Court addressed the “self-imposed hardship rule” in Wolverine Commerce,
LLC v Pittsfield Charter Twp, unpublished per curiam opinion of the Court of Appeals, issued
November 20, 2008 (Docket No. 282532), p 3, (Wolverine I), rev’d 483 Mich 1023 (2009). In
that case, the plaintiff purchased a large parcel that was zoned agricultural with the intent to have
it rezoned to industrial PUD in order to build a business park. Id. at 1. After the property was
rezoned, but before construction began, the plaintiff realized he made a “very expensive
mistake” and sought to have the property rezoned to R3 moderate density residential. Id. The
zoning board denied his request. Id. This Court concluded that the self-imposed hardship rule
barred any variance to rezone the property because the plaintiff “did cause the property to
become zoned for uses to which it is-taking [the] plaintiff’s factual assertions as true-unsuited.”
Id. at 3. Thus, while the plaintiff had not physically altered the property’s characteristics, this
Court extended the “self-imposed hardship” rule as a basis to deny rezoning or a variance where
the “legal conditions imposed on the property [that caused the hardship] were all brought about
by the direct efforts of [the] plaintiff and [the] plaintiff’s predecessor in title.” Id.
In Wolverine Commerce, LLC v Pittsfield Charter Twp, 483 Mich 1023, 1024 (2009)
(Wolverine II), our Supreme Court disagreed, concluding the self-imposed hardship rule did not
bar the property owners from obtaining a variance. The Court declined to expand the self-
imposed hardship rule to instances where the owners created a legal status on the property that
rendered it unfit for the uses for which it was zoned. Id. The Court held, “There is no legal
precedent to extend the self-imposed hardship rule to prevent a plaintiff who personally sought to
conform the property’s zoning classification to the municipality’s master plan in the first
instance from later seeking, in good faith, to rezone the property to another classification to
allow a different use.” Id. Instead, the rule precluded relief when the property owner
“subdivided or physically altered the land so as to render it unfit for the uses for which it is
zoned, not to cases in which the legal status of the property has been altered.” Id.In this case, the City claims IO bought the property knowing full well there was a
billboard ban in effect, and therefore, any hardship was caused by IO’s own actions. In contrast,
IO and the BZA argue that IO did not physically alter the property in such a way as to create the
hardship at issue. Given the circumstances in this case, we conclude the BZA’s decision to grant
the hardship variance was supported by competent, substantial, and material evidence in the
record. There is no evidence in the record that IO did anything but purchase the property, and as
the circuit court aptly explained, a landowner may seek any variance the law permits and should
not be limited just because they purchased the piece of property knowing the City’s ordinances
barred a particular use. Indeed, this is a similar business risk the plaintiff in Wolverine I and
Wolverine II took when he purchased land zoned industrial with the hope that he could later get
the property rezoned. Unlike Johnson, Bierman, Cryderman, and Janssen, the hardship here was
not caused by the landowner’s actions. 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.
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Importantly, there was no evidence in the record that suggests a previous title owner
partitioned the property at all. In fact, the only reference to the parcel’s history suggests that it
has had the same unique shape and size since well before the 1999 ordinance was enacted.
Counsel for IO represented to the BZA that he had researched as far back as the 1950s and could
not determine how the property came to be in its current state. Thus, unlike the partition cases of
Johnson and Cryderman, where the zoning ordinance was clearly in existence before the
landowner created his own hardship, what little we know about the history of this parcel suggests
its unique shape was not “rendered unadaptable to any reasonable use” until the ordinance was
enacted in 1999. As stated in Wolverine II, the self-imposed hardship rule “precluded relief
when the property owner subdivided or physically altered the land so as to render it unfit for the
uses for which it is zoned.” There is no evidence that this occurred here.4
The BZA did not abuse its discretion when it concluded the self-imposed hardship rule
was inapplicable under these circumstances and then granted the variance. There is no evidence
that the property owner or the predecessor in title took actions after the enactment of the overlay
zone that in some way physically altered the land so as to render it unfit for the use for which it
is zoned. Wolverine II, 483 Mich at 1024. Thus, the use variance was properly granted because
IO proved an unnecessary hardship meriting relief under MCL 125.3604(7).
As a final point, the dissent concludes that IO created its hardship when it purchased the
property with knowledge of the overlay. As support, the dissent cites a Michigan Supreme Court
case and claims that “a purchaser’s foreknowledge of a zoning ordinance may be highly relevant,
depending on whether the zoning ordinance is otherwise reasonable and the egregiousness of the
purchaser’s intended violation of that ordinance.” See Jones v Devries, 326 Mich 126; 40 NW2d
317 (1949). The cited case does not support the dissent’s conclusion here.
In Jones, our Supreme Court addressed whether the zoning board violated a Grand
Rapids hardship relief ordinance when it granted the defendant’s request for a variance to build
an apartment complex in an area zoned for residential use. Jones, 326 Mich at 128, 136. The
hardship ordinance at issue gave the zoning board the authority to grant a use variance if “the
land in question cannot yield a reasonable return if used only for a purpose allowed in that zone.”
Id. at 137. The Jones Court concluded that the zoning board erred because the land could yield a
reasonable return through other means allowed in that zone. Id. The Court stated, when
considering the “plight caused by restrictions in the zoning ordinance, it is somewhat important
4
The City urges this Court to adopt the rule set forth in Massasauga Rattlesnake Ranch, Inc v
Hartford Twp Bd of Zoning Appeals, unpublished opinion of the Court of Appeals of Ohio,
issued March 26, 2012 (Docket Nos. 2011-T-0060 and 2001-T-0061). The Ohio Court of
Appeals stated the following rule: “A party purchasing property with knowledge of zoning
restrictions cannot claim unnecessary hardship caused by those restrictions for the purposes of a
[sic] obtaining a use variance.” Id. at 4. Massasauga, as an out-of-state opinion, is not binding
on this Court, Great Lakes Soc v Georgetown Charter Twp, 281 Mich App 396, 414; 761 NW2d
371 (2008), and furthermore, our own precedent’s analysis of the self-created hardship rule,
starting with Johnson, is clearly distinguishable from Ohio’s analysis.
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to note that [the] defendants purchased their interest in this parcel . . . with full knowledge of this
zoning ordinance which was previously adopted.” Id. (quotation marks omitted). While this fact
was “somewhat important,” the Court’s decision ultimately turned on the fact that “[t]here [was]
no showing of a loss of yield of ‘reasonable return’ if [the] defendants are required to develop
and use their present properties within the terms of the existing ordinance.” Id. at 138. In this
case, there was no reasonable economic use for the property allowed under the already-existing
zoning ordinances. Our Supreme Court in Jones did not address whether the self-created
hardship rule would apply in that context, and its proclamation that knowledge of the ordinance
is “somewhat important” does not change the result in this case.
The dissent also cites Faucher v Gross Ile Twp Bldg Inspector, 321 Mich 193, 195; 32
NW2d 440 (1948), a case where the property owners attempted to obtain a permit to build a
home on their lot. Due to the dimensional restrictions in the applicable zoning ordinance, it was
“impossible” to erect a “practicable building” on the lot. Id. at 198. The defendants refused to
issue the permit because the plaintiffs had notice of the zoning ordinance when they purchased
the property, claiming the plaintiffs should have purchased the adjoining lots as well. Id. at 199.
The Court stated that “[a]s to the contention that [the] plaintiffs purchased with notice of and
subject to the restrictions contained in the ordinance, [the] defendants’ argument presupposes
that the ordinance is valid and reasonable with respect to [the lot].” Id. The Court did not find
that the harm at issue was self-created; instead, it concluded that the defendants’ refusal to issue
the permit, considering the zoning ordinance’s effect on the property, was “unreasonable and
arbitrary.” Id. at 199-200. Thus, at most, this case supports the conclusion that IO’s purchase of
the property with knowledge of the ordinance does not preclude the BZA from granting the use
variance. For these reasons, the BZA did not err when it granted the use variance based on
economic hardship.
Affirmed.
/s/ Thomas C. Cameron
/s/ Jonathan Tukel
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