Request for a variance; The self-created hardship rule; Johnson v Robinson Twp; Detroit v Detroit Bd of Zoning Appeals; MCL 125.3606(1)(c); Ordinance 131,000 square feet lot size requirement; Equal protection; Zoning Board of Appeals (the ZBA)

The court concluded that Johnson controlled and thus, “the circuit court properly denied appellants’ appeal.” It also found that “the required square footage for a single-family dwelling in [their] agriculturally zoned district was properly determined to be 131,000 square feet.” Further, to the extent they directed its “attention to a circuit court decision commenting on appellee’s unequal enforcement of its zoning ordinance more than 30 years ago,” it was unpersuaded that decision supported their equal protection claim. Finally, because they offered no evidence showing “disparate treatment, or refuting” a ZBA member’s statements, they “failed to establish that the ZBA deprived them of their right to equal protection.” Thus, the court affirmed the order affirming appellee-Glen Arbor Township’s ZBA’s denial of appellants’ request for a variance. Appellants argued, among other things, “that the circuit court erred by finding that the self-created hardship rule was controlling.” There was no evidence to support their claim that their predecessor in interest, F, divided the property before the 1975 ordinance was enacted. The evidence that both parties submitted established that four couples, including appellants, purchased the subdivided lots from F “in 1977. The deeds were recorded in 1978 and appeared for the first time on the tax rolls in 1979. Accordingly, the ZBA’s finding that the hardship was created after the ordinance was enacted was ‘supported by competent, material, and substantial on the record.’” Despite appellants’ claims that Johnson did “not apply due to the cases’ factual differences, the requests for a variance in Johnson and in the instant case are nearly identical. Both parties requested a variance to build on lots that did not conform with the ordinance because of size. Both parties owned lots that were previously conforming, but their predecessors in title changed the size of the lots, rendering them nonconforming. Although appellants draw a distinction based on the familial connection in Johnson, this Court stated in Detroit, 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,’ indicating that a familial relationship was not required.”