There is hereby established a zoning board of appeals, which shall perform its duties and exercise its powers as provided by sections 601 through 607 of Public Act No. 110 of 2006 (MCL 125.3601 et seq.), as amended, City or Village Zoning Act, and as provided in this chapter in such a way that the objectives of this chapter shall be enforced, the public health and safety secured, and substantial justice done.

(Ord. No. 691, § 1(32-195), 5-4-2005)

(a)

Membership. The zoning board of appeals shall consist of five members appointed by the city commission. One member shall be a member of the planning commission, and four members shall be citizens who shall be representative of the various interests and population distribution of the city. The commission may also appoint not more than two alternate members for the same term as regular members of the board. The alternate members shall be called on a rotating basis to sit as regular members of the board in the absence of a regular member. An alternate member may also be called to serve in the place of a regular member for the purpose of reaching a decision on a case in which a regular member has abstained for reasons of conflict of interest. The alternate member having been appointed shall serve in the case until a final decision has been made. The alternate member shall have the same voting rights as a regular member of the board of appeals.

(b)

Terms of office.

(1)

The member of the planning commission shall serve terms concurrent with his/her term on the commission.

(2)

The four additional members plus alternates shall serve for three-year terms. These three-year terms shall be staggered so that not more than two members are appointed each year.

(3)

Should a vacancy occur, the city commission shall appoint a replacement within 60 days to fill the unexpired term.

(c)

Removing members. Members of the board of appeals shall be removable by the city commission for nonperformance of duty or misconduct in office upon written charges and after public hearing. A member shall disqualify himself or herself from a vote in which the member has a conflict of interest. Failure of a member to disqualify himself or herself from a vote in which the member has a conflict of interest shall constitute misconduct of office.

(Ord. No. 691, § 1(32-196), 5-4-2005)

(a)

Filing fee. An appeal may be taken by a person aggrieved or by an officer, department, board, or bureau of the city. An appeal to the zoning board of appeals must be filed within 15 days from the date that the decision to be appealed is effective. An appeal is taken by filing with the officer or body from whom the appeal is taken and with the board of appeals of a notice of appeals specifying the grounds for the appeal. The officer or body from whom the appeal is taken shall immediately transmit to the board all papers constituting the record upon which the action appealed from is taken. An appeal shall be accompanied by a fee as set forth in the then current manual entitled, "Municipal Policy, City."

(b)

Officers. The board shall elect from its membership a chairman, vice-chairman, and such officers as may be necessary. The board is authorized to appoint an executive secretary.

(c)

Rules of procedure. The board shall adopt its own bylaws or rules and procedures. These bylaws shall be available for public inspection at the office of the board. The bylaws, as adopted, shall include the following:

(1)

Meetings shall be held regularly each month according to the rules, at a fixed place and open to the public, except that a meeting shall not be required if there is no business to come before the board.

(2)

The presence of four members shall constitute a quorum, and it shall take a concurring vote of three members to reverse an order or decision of the building inspector, planning commission, or any other official to whom authority is granted by this chapter to decide on any matter upon which it is required to pass by this chapter, or to grant a variance from the provisions thereof. It shall take a concurring vote of four members to grant variance from the uses of land permitted in this chapter.

(3)

A record of the proceedings of each meeting shall be kept by the board, relating evidence presented by the applicant and the resolution by the board, the vote of each member on each question, or, if absent or failing to vote, indicating such fact. These shall be a public record and immediately filed in the office of the board.

(4)

The board shall receive reasonable assistance from the city departments in carrying out the functions of the board.

(d)

Hearing. The board of appeals shall fix a reasonable time for the hearing of the appeal and give due notice of the appeal to the persons to whom real property within 300 feet of the premises in question is assessed, and to the occupants of single-family and two-family dwellings within 300 feet, the notice to be delivered personally or by mail addressed to the respective owners and tenants at the address given in the last assessment roll. If the tenant's name is not known, the term "occupant" may be used. Upon the hearing, a party may appear in person, by agent, or by attorney. The board of appeals shall decide the appeal within a reasonable time. The board of appeals may reverse or affirm, wholly or partly, or may modify the order, requirement, decisions or determination appealed from and shall make an order, requirement, decision or determination as in its opinion ought to be made in the premises and to the end shall have all the powers of the officer of body from whom the appeal is taken. Where there are practical difficulties or unnecessary hardship in the way of carrying out the strict letter of this chapter, the board of appeals may, in passing upon appeals, vary or modify any of its rules, regulations, or provisions relating to the construction or structural changes in equipment or alteration of buildings or structures so that the spirit of this chapter shall be observed, public safety secured, and substantial justice done.

(Ord. No. 691, § 1(32-197), 5-4-2005)

All meetings of the zoning board of appeals shall be open to the public and held at such times as the board may specify in its bylaws. Minutes shall be recorded of all proceedings that shall contain evidence and data relevant to every case considered, together with the record of the vote of each member by name of the board and the final disposition of each case. The grounds of every determination shall be stated in writing and recorded as part of the official minutes and record of the board. Such minutes shall accompany and be attached to the standard forms required of persons appealing as part of the zoning board of appeals' permanent records. Such minutes shall be filed in the office of the city clerk and shall be sent to the applicant or appellant and to the zoning administrator or enforcing officer. The city clerk shall act as the depository for all official files of the board.

(Ord. No. 691, § 1(32-198), 5-4-2005)

An appeal stays all proceedings in furtherance of the action appealed from, unless the zoning administrator or enforcing officer certifies to the zoning board of appeals after the notice of the appeal shall have been filed with him that, for reason of facts stated in the certificate, a stay would, in his opinion, cause immediate peril to life or property, in which case the proceedings shall not be stayed otherwise than by a restraining order, which may be granted by the circuit court, on notice to the officer from whom the appeal is taken, when due cause can be shown.

(Ord. No. 691, § 1(32-199), 5-4-2005)

The zoning board of appeals shall also have the following specified powers and duties:

(1)

Review. The board shall hear and decide appeals from and review any order, requirement, decision, or determination made by the administrative official or body charged with the enforcement of this chapter.

(2)

Interpretation. The board shall have powers to interpret the provisions of this chapter and to grant variances from the strict application of any provisions of this chapter, except as otherwise provided in this chapter.

a.

The board shall hear and decide upon appeals for the interpretation of the provisions of this chapter.

b.

The board shall determine the precise location of the boundary lines between zoning districts.

c.

The board shall classify a use that is not specifically mentioned along with a comparable permitted or prohibited use for the purpose of the use regulations in any zoning district.

(3)

Variances.

a.

Generally. The board shall have the power to authorize, upon appeal, specific variances from such dimensional requirements as lot area and width regulations, building height, and bulk regulations, yard width and depth regulations, and such requirements as off-street parking and loading space as specified in this chapter when all the basic standards listed below are satisfied; that any variance granted:

1.

Will not be contrary to the public interest and will not be contrary to the spirit and intent of this chapter;

2.

Shall not permit the establishment within a zoning district of any use that is not permitted by right within the district;

3.

Will not cause any adverse effect to property in the vicinity or in the zoning district of the city;

4.

Is not where the specific conditions pertaining to the property are so general or recurrent in nature as to make the formulation of a general regulation for such conditions practicable;

5.

Affects only property subject to exceptional or extraordinary circumstances or conditions that do not generally apply to other property or uses in the vicinity, and have not resulted from any act of the applicant; and

6.

Must be granted in order to avoid practical difficulties or unnecessary hardship that would result from enforcement of the strict letter of this chapter.

b.

Additional rules governing the granting of variances. In addition to the foregoing conditions, the following rules shall be applied in the granting of variances:

1.

The board of appeals may impose reasonable conditions upon an affirmative decision. The conditions may include conditions necessary to ensure that public services and facilities affected by proposed land use or activity will be capable of accommodating increased service and facility loads caused to the land used for activity, to protect natural environment and conserve natural resources and energy, to ensure compatibility with adjacent uses of land, and to promote the use of land in a socially and economically desirable manner. Conditions imposed shall do all of the following:

i.

Be designed to protect natural resources, the health, safety and welfare, as well as the social and economic well-being of those who will use the land, use or activity under consideration, residents and land owners immediately adjacent to the proposed land use or activity, and the community as a whole;

ii.

Be related to the valid exercise of the police power and purposes which are affected by the proposed use or activity; and

iii.

Be necessary to meet the intent and purpose of the zoning regulations, be related to the standards established for the land use or activity under consideration, and be necessary to ensure compliance with those standards.

The conditions imposed with respect to the approval of a land use or activity shall be recorded in the record of the approved action and shall remain unchanged except upon the mutual consent of the approving authority and the landowner. The board shall maintain a record of changes granted in conditions.

2.

No more than the minimum variance from the terms of this chapter shall be granted which is necessary to relieve the practical difficulty or unnecessary hardship.

3.

An application for a variance which has been denied wholly or in part by the zoning board of appeals shall not be resubmitted for a period of one year from the date of the last denial, except on grounds of newly discovered evidence or proof of changed conditions found upon inspection by the board to be valid.

4.

Each variance granted shall become null and void unless the provisions of the variance have been utilized by the applicant within six months after the granting of the variance.

5.

Prior to granting a variance, all other existing infractions related to this chapter or other city codes shall be resolved.

(Ord. No. 691, § 1(32-200), 5-4-2005)

(a)

The decision of the board of appeals rendered pursuant to this article shall be final. However, a person having an interest affected by the decision may appeal to the circuit court. Upon appeal, the circuit court shall review the record and decision of the board of appeals to ensure that the decision:

(1)

Complies with the constitution and laws of the state;

(2)

Is based upon proper procedure;

(3)

Is supported by competent materials and substantial evidence on the record; and

(4)

Represents the reasonable exercise of discretion granted by law to the board of appeals.

(b)

If the court finds the record of the board of appeals inadequate to make the review required by this section, or that there is additional evidence that is material and with good reason was not presented to the board of appeals on conditions which the court considers proper. The board of appeals may modify its findings and decision as a result of the new proceedings or may affirm its original decision. The supplementary record and decision shall be filed with the court.

(Ord. No. 691, § 1(32-201), 5-4-2005)

State Law reference— Review by circuit courts, MCL 125.3606.