HOW TO GET A ZONING VARIANCE

Zoning variances are a mystery to most citizens, including those who actually ask for one. Here is a description of the process and how you can use it.

A variance is an exception from the zoning laws for a particular property. In effect, it allows the owner to sidestep the law because of unique circumstances.

Variance requests are presented to the Zoning Board of Appeals, which in Orchard Lake is the City Council wearing a different "hat." The ZBA acts as a kind of court. Granting a variance requires a majority vote (four or more) of all members, not just a majority of those members in attendance.

After more than six years, I calculate I have heard some 300 variances as a ZBA member. The most common problem I find is that applicants do not fully understand the process. Many present their own cases but others are presented by architects, lawyers, etc. The better the presenter knows the law the better the chances.

First, please understand that the ZBA does not exist to make variances easy to get. Experts say that if ZBAs act favorably more than 20-25 per cent of the time, there is a problem with the underlying zoning laws -- which were written to protect the whole community.

The City recently rewrote the variance application to fully advise applicants what they must do to win a variance. These "hurdles" are important because the ZBA does not have unlimited discretion -- it can't approve a variance merely because the applicant tells a good story, because there are no neighborhood objections, because "this won't do any harm," and a host of other reasons commonly used.

Most variances are "dimensional" -- they involve something like a setback, building height, or the size of the structure in ratio to the lot size. To approve a variance, the ZBA must FIRST find that the property has a "practical difficulty" affecting the proposed construction. An example would be an unusual terrain condition.

This difficulty must arise from the land itself, not from the owner's personal circumstances or desires. As the application form states: "A greater return (bigger structure, more profit, etc.) is not sufficient grounds for a variance."

In addition to showing a practical difficulty, the applicant must demonstrate that ALL of the following are true:

* That the circumstances are unique to this property, not found on other properties in the same area or zone.

* That the variance provides substantial preservation of a property right.

* That it does not adversely affect adjacent property owners.

* That it will not materially impair the intent of the zoning ordinance.

* That the need for the variance was not self-created by the owner or previous owners.

As the application states, "The ZBA has no power to legislate or create new regulations; its purpose is to provide some relief...depending on the unique circumstances of the property."

Final advice: if you want a variance, read the application carefully, answer it fully, and make your presentation conform to the issues that the ZBA is required to consider.

UPDATES ON COUNCIL ACTION

At its April 17 meeting, City Council took action on two matters described in earlier items in this Chronicle (see them below):

LAKE ASSESSMENT: Council resolved to begin necessary action to renew the Orchard Lake special assessment for five years. The tax roll will be presented at the next meeting.

BUILDING RULES: Council approved an allowance for overhangs on new houses, which will in some cases allow a house to occupy a slightly higher percentage of its lot. Separately, it discussed at length the recommended changes in building height and sent the proposal back to the Planning Commission for possible changes.

LAKE ASSESSMENT ON AGENDA

City Council will consider renewing the special assessment for lake maintenance of Orchard Lake at its meeting Monday April 17.

The process begins with a public hearing, to be followed by final action in May.

The assessment is paid by all lakefront property owners on Orchard Lake. The new assessment, similar to the one in effect for a number of years, would be $140 a year for owners of direct lakefront lots, $96 for "backlot" owners and $1 per front foot for instititutional properties such as Orchard Lake Country Club.

This would raise $31,000 per year for the five years of the assessment. The largest amount, about $25,000, would pay for weed removal each year. About $5,000 would pay for a part-time police officer on busy days at the state launch site, with the city sharing in that cost.

A seperate assessment for the same group of owners pays for the lake level control facility that allows water to be pumped from Cass Lake, but this does not require renewal.

HOUSE SIZE INCREASES RECOMMENDED

(NOTE: See earlier post below.)

The City Planning Commission approved zoning law changes April 4 to allow taller houses and slightly larger house "footprints" in Orchard Lake. Its recommendation goes to City Council for final action, a process that could commence as early as April 17.

The changes were adopted after a 2.5-hour meeting with spirited questions and comment, but with only five of the nine Commission members present.

One change would allow three feet of additional height on new houses in all zones, except for those with flat roofs. This would raise the current maximum height of 35 feet, or 43 feet for a house with a walkout lower level. However a second change, in the so-called "bonus" allowance for walkouts, would actually permit a house to be 48 feet on its highest side, an increase of five feet from the existing law.

Currently, if a property has a drop of at least six feet somewhere in its footprint, it may be built eight feet higher on the lowest side, for a walkout. The new proposal increases this bonus to 10 feet.

In addition, if the slope within the footprint is at least three feet a bonus of five feet in height would be allowed for "daylight windows" in the lower level.

Separately, the Commission recommended to Council that building overhangs of no more than one foot, plus five inches for gutters, be excluded from lot coverage limits. This would allow owners to slightly enlarge the footprint of new houses if they had such overhangs.

While the overhang question brought relatively little discussion and no outright opposition, building height was debated at length with a variety of alterative suggestions (none of them adopted by the Commission which stuck with its original proposal).

Mayor David Boerger said that in an informal survey of some 20 residents he detected a 50-50 split of opinion. Some residents favored greater height for their own properties, he said, and some because they felt bigger houses nearby would increase their property values. The opposing residents, he said, were concerned about appearance and community character.

City Council may approve or reject the proposals but if it were to make substantial changes they would have to be returned to the Planning Commission for rehearing.

WHY YOUR ASSESSMENT WENT UP

Did your latest assessment notice shock you?

Overall real estate assessments in our city rose 9.9 per cent, the highest increase in the county. Does that mean Orchard Lake property has increased in value that much?

Maybe not. As City Assessor John Sailer told City Council, "...these assessment factors do not necessarily mean that the market value of properties increased...by the percent indicated."

The increase was decreed by the County Equalization Department, based on sales studies. Sailer said that the number of sales in Orchard Lake is too low to provide adequate representation in the studies.

Sailer had to increase assessments on some groups of residential property by close to 20 per cent in order to meet the required total level for the city.

The good news is that the taxable value of property is "capped" by state law for those who have homestead exemptions, so most of these increases will not show up on your tax bill. However they will take effect if a property is sold or the exemption is lost.

Lakefront property got a higher increase (13.4 per cent) than nonlakefront (6.8 per cent).

The total taxable value of the entire city (the amount on which taxes are collected) was up 6.4 per cent, which includes inflation (the "capped" value of homestead properties) plus new construction and properties being sold.