ZONING BOARD OF APPEALS
5095 4th Street
Eagle River, Michigan 49950
Jim Vivian, Jr., Chairman
Frank Kastelic, Member
Pauline Johnson, Member
Steve Peters, Member
Tom Hall, Planning Commission Liaison
Peter Mace, Alternate Member
Mel Jones, Alternate
Keweenaw County Courthouse
5095 4th Street
Eagle River, Michigan 49950
Meetings are held as needed.
If a variance is requested
which requires a public
meeting, the hearing will be scheduled on the soonest
date listed above following publication in the Daily
Public Comment will be considered at the
ZBA hearings. If you are unable to personally attend a
ZBA hearing, you may submit written comments in support
of, or in opposition to, a variance request by noon on
the Friday preceding the public hearing.
comments may be sent to:
Keweenaw County Zoning Board of Appeals
Ann Gasperich, Keweenaw County Zoning Administrator
5095 Fourth Street
Eagle River, MI 49950
A Word About Zoning
A zoning law is a community's guide to
its future development. That is its purpose. It is not
meant to be just another governmental intrusion, another
bit of red tape to be untangled before the property
owner can go ahead with his plans. The very protections
afforded residents and property owners within the
community from undesirable development come from the
restrictiveness of zoning.
A landowner can look at the zoning map
and regulations and know that if he follows them, he has
a right to use his land in a certain way (Use by Right),
and that neighboring property is subject to the same
restrictions. But, because all land in the district is
subject to the same rules, and because no two parcels of
land are precisely the same, problems can arise.
The Zoning Board of Appeals stands as a
buffer between the property owner and the court and
assures fair and equitable application of the
County's Zoning Ordinance. The court
of a Zoning Board of Appeals, with discretionary powers
to meet specific cases of hardship or specific instances
of improper classification, is not to destroy zoning as
a policy, but to save it. The property of citizens
cannot and ought not to be placed within a straitjacket.
Not only may there be grievous injury caused by the
immediate act of zoning, but time itself works changes
which require adjustment. What might be reasonable today
might not be reasonable tomorrow" (People v. Kerner,
125 Misc. 526)
This makes the Zoning Board of Appeals a
safety valve, protecting landowners from unfair
application of the laws in particular circumstances. The
powers and duties of the Zoning Boad of Appeals are
quite specifically set forth in the Michigan statutes.
Before approaching the Zoning Board of
Appeals, property owners must seek an interpretation of
the zoning law from the zoning administrator or building
inspector to determine how it applies to their
properties. If they disagree with that decision, they
may appeal it to the Zoning Board of Appeals.
property owner or other aggrieved person can initiate
proceedings to enforce a zoning ordinance.
aggrieved by a decision made by
department, or board of the County
can appeal that decision to
the Zoning Board of Appeals.
aggrieved by a decision of the Zoning Board of Appeals
or any taxpayer in the community, may also seek judicial
review of the decision.
specially damaged by a violation can also seek to
enforce a zoning ordinance by initiating an action in
the courts for injunctive relief.
After a decision is made, the Zoning
Administrator will carry out the decision made by the
Zoning Board of Appeals. In hearing a timely appeal
or granting a variance, the Zoning Board of Appeals
essentially is acting like a court of law. The Zoning
Board of Appeals' decisions are legally binding and an
appeal of a ZBA decision is appealed to the Circuit
The Zoning Board of
Appeals hears appeals from the decisions of the zoning
enforcement officer or building inspector when
interpretations of the zoning law are
involved. Only the ZBA can interpret the meaning of the
The essential function of the Zoning Board of Appeals is
to grant variances. A variance allows a landowner to use
land or locate structures on the land in a manner which
is prohibited by the zoning ordinance when a
property owner can show unique, localized physical
problems which give rise to hardship that can be
overcome by varying the application of the ordinance
without harming the purpose and intent of the ordinance.
granted by a zoning board of appeals shall run with the
land and shall not be personal in nature to the person
who applied for and received the variance.
hardship cannot qualify as the basis for a variance.
the most profitable use of property are not proper
grounds for granting a variance.
cannot be contrary to the public interest.
An area variance, permitting
development that deviates from dimensional
requirements of the law, is granted to a landowner
who encounters particular difficulties in locating
structures on the land in compliance with the zoning
regulations. Area variances deal with the standards in
the zoning ordinances for things such as setbacks,
height of structures, and density.
A use variance is one which
permits a use of land other than the use
prescribed by the zoning ordinance. Use variances are
granted only when a landowner establishes that the
current use restrictions produce an "unnecessary
hardship", defined as "a situation where, in the absence
of a variance, no feasible use can be made of the land,"
preventing the realization of a reasonable economic
return on the land. Use variances are rarely granted
because they may involve changing the character of an
The burden of proving an unnecessary
hardship rests upon the applicant, and without such
proof, a variance must be denied. The hardship must also
be created by the ordinance. If the hardship is caused
by actions of the owner, the applicant, or some other
person, relief by means of variance may not be granted.
Such a situation would arise where hardships result from
improvements made in violation of the zoning ordinance,
either willfully or innocently, in which case a variance
cannot be granted.
For example, a homeowner wished to be
granted a variance from the minimum side-yard
requirements of the county ordinance in order to build a
porch to "enjoy lake living, to accommodate his expanded
family, and to increase the value of his land." The
court held that none of these reasons was sufficient to
justify the granting of a variance based on a practical
difficulty or unnecessary hardship. Thus, practical
difficulty and unnecessary hardship do not include
conditions personal to the owner of the land, but rather
to the conditions especially affecting the lot in
Limitations on the
Zoning Board of Appeals Powers
A Zoning Board of Appeals
may not itself impose zoning. This is the function of
the local legislative body (Planning Commission and/or
County Board of Commissioners).
A Zoning Board of Appeals
cannot review the general rules laid down by the
legislative body respecting the use of land. It has no
power to set aside a law on the ground that its terms
are arbitrary, unreasonable and unconstitutional.
A Zoning Board of Appeals
does not have the authority to amend the zoning
regulations or change the boundaries of the districts
where they are applicable.
The Appeals Process
You may obtain appeal forms, along with
detailed instructions, at the Keweenaw County
Courthouse, Equalization/Zoning Office, Eagle River, MI.
The five steps in the Appeals process
1. Apply to
the Zoning Board of Appeals
2. Schedule a
3. Appear at
4. Make a
decision once zoning is approved
state building code requirements
Withdrawal of Appeal
If you choose not to pursue your appeal,
prior to legal advertising and notification, you should
submit your request in writing to the Board so that the
Board can withdraw the case, with no penalty to you.
Once notice has been published and
mailed, and you choose not to continue the appeal
process, present to the Board either in person or by
mail a letter requesting to withdraw your case. This
must be in writing and protects your right to an appeal
in the future.
You cannot cancel a hearing date after
it has been advertised and the abutters have been
notified. You may choose to be represented by another
party if you are unable to appear personally. Your agent
may proceed forward with your case or request a
deferral. The Board may in its discretion grant a
deferral, but is not obligated to do so.
If you choose not to continue the appeal
process, you may request that the Board dismisses it
without prejudice, but this request must be made prior
to the merits of the case being heard. This action would
allow you to initiate the process again at your
convenience without waiting a full year.
When do I need to apply for a hearing
before the Zoning Board of Appeals?
If you have received a refusal letter from the
Zoning Administrator denying your application for a
permit, an appeal can be filed with the Zoning
Administrator. The time limitation for filing is
prescribed by the Zoning Board of Appeals' general rule,
usually 30 days, unless the Zoning Administrator
An appeal to the Zoning Board of Appeals
stays all proceedings in furtherance of the action
appealed. However, if the Zoning Administrator certifies
to the Zoning Board of Appeals that a stay would cause
imminent peril to life or property, proceedings may be
stayed only by a restraining order issued by the Zoning
Board of Appeals or a circuit court.
Following receipt of a written request
for a variance, the zoning board of appeals shall fix a
reasonable time for the hearing of the request.
Where do I file the appeal form?
File the appeal form and appropriate fees with the
Zoning Administrator, Keweenaw County Courthouse. We ask
that the appeal be filed in person, or by someone
representing you, so that we may check the form for
accuracy and make sure it is filed within the allowed
How much does it cost for filing an
The fee for filing the appeal form is a total of
$250 for any violations. All fees must be paid to the
Treasurer, Keweenaw County, at the time of filing the
appeal form. Payment must be in cash, money order, or
What happens when the Zoning Board of
Appeals denies appeals?
If the Board denies your appeal, you must wait one
year to refile an appeal, unless the proposal is
substantially changed or unless the Board dismisses it
without prejudice. In that event, you may refile without
waiting the mandated one-year period.
What if the county official responsible
for issuing permits makes a mistake and issues a permit
for a use or a dimensional situation that really does
not comply with the ordinance? Can a mistakenly issued
permit be revoked when the mistake is discovered?Yes.
What if the building is built before the
mistake is discovered? Can the owner be prosecuted for
Yes. An erroneously issued permit does
not shield an owner from penalty for violating the code.
In most cases the owner will argue (usually
successfully) that it is unjust to penalize him or her
for the violation because the project was built in
reliance on the permit. But a court can throw out this
argument, and usually will if there is any reason to
think the owner knew or should have known that the
permit was issued mistakenly.
What if someone builds a structure that
complies perfectly with the use and dimensional rules,
but the person never got a permit?
Failure to get a permit is a violation in its own
right, even if the "use" is legal. The owner is liable
for prosecution for non-compliance with the permit
What if the owner and the zoning
official disagree on interpretation of the ordinance?
For example, the ordinance says garages are permitted on
residential lots as an accessory to a house. The
applicant applies to build a 5 stall garage big enough
to store and repair semitractors. The zoning official
interprets the term "garage" as including ordinary
household car garages and not big truck garages and
turns down the application. What happens?
First, the zoning official has done his or her job,
which is to interpret the ordinance and make decisions.
If the applicant simply goes ahead and builds the garage
in the face of the permit denial, the county can
prosecute, and the owner's position in court will be
weak because the owner acted in defiance of the permit
decision (as well as in opposition to the ordinance)
without pursuing the several routes to legal relief.
However, the applicant has several ways
to appeal the denial. The applicant can petition the
Zoning Board of Appeals for an appeal of the decision.
This decision will then become the official decision
superseding (or upholding) the zoning official’s
decision. Another appeal option is to challenge the
decision in court. A final option is for the applicant
to petition the county board to amend the ordinance to
add truck garages specifically to the use list for the
residential district. If such an amendment were passed,
the applicant could apply again and get the permit.
What if the zoning official has trouble
interpreting the ordinance? Take the garage example. The
code said "garage." On what basis did the official know
whether "garage" meant a big truck repair building?
To be fair and proper and to have interpretive
decisions stand up on appeal, the decisions should be
based on words in the code and on the intent of the
code. Does the code modify the word "garage "? Does it
say "automobile garage" or garages "ordinarily and
customarily found in residential areas?" Does the
ordinance, as a whole or in the particular district,
have a statement of intent? Does that statement have any
bearing on the garage issue? Can an intent be read into
the rules of the district even if there is no statement
of intent? The district may be very strict. No
commercial or industrial activities at all are allowed.
This suggests an intent to shape a district of purely
residential character and gives a possible basis for
denying a commercial use. Does the ordinance provide for
truck storage and repair garages in some other district?
Does this show an intent to place the use in the
commercial zone and, by implication, not in the
What if several permits are needed to do
what the applicant wants? The zoning checks out and a
permit can be issued consistent with the zoning
ordinance. But what if there is a question regarding
whether the parcel was subdivided properly, or whether a
permit has been issued or needs to be issued now for
The answers depend entirely on the local ordinances.
The local ordinances have to say in what order permits
are issued and whether one permit can be held up until
another permit is issued, and whether one permit is
conditional on issuance of another permit.
What if the use is one that is exempt
from a permit requirement?
Many ordinances exempt minor improvements and farm
buildings. The use still has to comply with the use and
dimensional rules even if there is no need to take out a
permit. In this instance, only a Zoning Permit is
required, issued by the Zoning Administrator.
For how long is a permit good?
This is set by local ordinance. If the ordinance
does not say anything, the general rule is that the
permit is good for as long as the ordinance remains
unchanged as to the intended project. If the ordinance
changes and the project has not begun or is not so far
along that it is nearly impossible to change, the
applicant should reapply for a new or amended permit
reflecting the new rules that apply to the project.