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Can an individual abandon the right granted in a variance that was issued by the Zoning Board of Appeals?

Yes, but abandonment is a fact-by-fact basis. Many zoning ordinances will address the principle of abandonment at least with respect to lawful nonconforming uses. The discontinuance of nonconforming uses is often commonplace because of explicit authorization for local municipalities to address such circumstances in the Michigan Zoning Enabling Act: “(2) The legislative body may provide in a zoning ordinance for the completion, resumption, restoration, reconstruction, extension, or substitution of nonconforming uses or structures upon terms and conditions provided in the zoning ordinance. In establishing terms for the completion, resumption, restoration, reconstruction, extension, or substitution of nonconforming uses or structures, different classes of nonconforming uses may be established in the zoning ordinance with different requirements applicable to each class.” MCL 125.3208 (2). The standards set forth in many zoning ordinances remain fact-intensive and often include factors related to intent of the individual with interest in the property, as well as a duration of time that some nonuse may have or is occurring. Similar to the standards for nonconforming uses, abandonment can also occur related to variances that were granted based on a similar analysis. See Detroit Media Group, LLC v. Detroit Bd. of Zoning Appeals (Case No. 352452) (2021). Importantly, you will want to first check and verify if the applicable zoning ordinance has provided for a period of time under which construction or use of the right granted under the variance must commence. If it has not commenced and the period has passed, one may not need to reach the issue of abandonment because the variance itself would have no force or effect. If such a use or right has commenced under a variance and is later abandoned, the analysis is much more complex and a municipality should consult with its legal counsel.

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