Bellevue City Zoning Code
ARTICLE XXVI
Zoning Board of Appeals ZBA
[Amended 1-22-2018 by Ord. No. 2018-001]
§ 155-26.01 Purpose.
The purpose of this article is to establish a Zoning Board of Appeals (ZBA) pursuant to Public Act 110 of 2006, as amended, including its responsibilities, procedures, and standards of review, to ensure that the objectives of this chapter are fully and equitably achieved.
§ 155-26.02 Creation and membership.
A.
Establishment. A ZBA is hereby established in accordance with Public Act 110 of 2006, as amended. The Village Council shall act as the ZBA in accordance with Public Act 110 of 2006, as amended.
B.
Alternate members. The Village Council may appoint not more than two alternate members to the ZBA. The alternate members shall be called on a rotating basis to sit as regular members of the ZBA in the absence of a regular member if the regular member will be unable to attend one or more meetings of the ZBA. 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 the regular member has abstained for reasons of conflict of interest. An alternate member shall serve on a case until a final decision is made. The alternate member shall have the same voting rights as a regular member of the ZBA. An employee or contractor of the Village Council may not serve as an alternate member of the ZBA.
C.
Terms of appointment. Terms of appointment of ZBA members shall be limited to the time they are members of the Village Council. Alternative members, if appointed, shall be appointed for three-year terms.
D.
Removal from office/conflict of interest. A member of the ZBA may be removed by the Village Council for misfeasance, malfeasance, or nonfeasance in office upon written charges and after a public hearing. A member shall disqualify himself or herself from deliberations and a vote in which the member has a conflict of interest. Failure of a member to disqualify himself or herself from deliberations and a vote in which the member has a conflict of interest constitutes malfeasance in office.
§ 155-26.03 Organization.
A.
Rules of procedure and officers. The ZBA may adopt rules of procedure for the conduct of its meetings and the implementation of its duties. The Village President shall serve as the Chairperson of the ZBA and the Village President Pro Tem shall serve as the ZBA's Vice Chairperson.
B.
Meetings and quorum. Meetings of the ZBA shall be held at the call of the chairperson and at such other times as the ZBA in its rules of procedure may specify. A majority of the regular membership of the ZBA shall comprise a quorum, which may include an alternate member(s) sitting in for a regular member(s). The ZBA shall not conduct official business unless a quorum is present. All meetings shall be open to the public and conducted pursuant to the requirements of the Open Meetings Act (PA 267 of 1976, as amended).
C.
Oaths and witnesses. The chairperson may administer oaths and compel the attendance of witnesses.
D.
Records/minutes. The ZBA shall maintain a record of its proceedings which shall be filed in the office of the Village Clerk, and shall be a public record according to the Freedom of Information Act. All minutes shall state the grounds for each determination, including findings of fact and conclusions, and shall be available to the public according to the Open Meetings Act.
E.
Legal counsel. The Village Attorney shall act as legal counsel for the ZBA.
§ 155-26.04 Jurisdiction.
The ZBA shall act upon questions as they arise in the administration of this chapter and take other actions as specified in this chapter. The ZBA shall perform its duties and exercise its powers as provided in Public Act 110 of 2006, as amended. The ZBA shall not have the power to alter or change the zoning district classification of any property, nor make any change in the terms or intent of this chapter, but shall have the power to act on those matters so specified in this chapter, including Ordinance interpretations, variances, and the review of an order, requirement, decision, or determination made by an administrative official or body charged with the administration or enforcement of this chapter.
§ 155-26.05 Appeals for administrative reviews.
A.
Authority. The ZBA shall hear and decide appeals where it is alleged by the appellant that there is an error in any order, requirement, permit, or decision by the Zoning Administrator or by any other body or official in administering or enforcing the provisions of this chapter. Within this capacity the ZBA may reverse or affirm, wholly or partly, or may modify the order, requirement, decision, or determination of such body or official. The ZBA shall have all the powers of the body or official that made the decision subject to the appeal. This authority shall not extend to decisions on special land use applications and ordinance amendment petitions.
B.
Standards. The ZBA shall reverse or otherwise modify the decision of such body or official from whom the appeal is taken only if it finds that the action or decision appealed:
(1)
Was arbitrary or capricious, or
(2)
Was based upon an erroneous finding of a material fact, or
(3)
Constituted an abuse of discretion, or
(4)
Was based upon erroneous interpretation of the Zoning Ordinance or zoning law, or
(5)
Did not follow required procedures.
C.
Procedures:
(1)
Application requirements. A written application for an appeal for administrative review shall be completed and filed with the Zoning Administrator on forms established for that purpose, within 21 days after the date of the meeting during which the meeting minutes addressing the decision being appealed was approved. Application for an administrative review shall specify, at a minimum, the name, address, and phone number of the applicant; the decision being appealed; and the basis for the appeal. A minimum of seven copies of the application shall be submitted along with any required application fees.
(2)
Stay. An appeal of an administrative decision shall stay all proceedings in furtherance of the action appealed unless the officer or body from whom the appeal is taken certifies to the ZBA, after the notice of appeal is filed, that by reason of facts stated in the certification, a stay would in the opinion of the officer or body would cause imminent peril to life or property. If such a certification is filed, the proceedings shall only be stayed by a restraining order. A restraining order may be granted by the ZBA or by the circuit court, on application, on satisfactory demonstration of due cause.
(3)
Record of facts/transmission of record. Upon receipt of an application for administrative review, the officer or body that made the decision being appealed shall transmit to the ZBA all papers constituting the record associated with the decision being appealed. In hearing and deciding administrative appeals, the ZBA's review shall be based upon the record of the administrative decision being appealed.
(a)
The ZBA shall not consider new information which had not been presented to the administrative official or body that made the decision subject to the appeal except where the ZBA first remands the matter back to the body that made the original administrative decision with an order to consider the new information and affirm or modify its original decision.
(4)
Hearing. Upon receipt of an application, the chairperson of the ZBA shall fix a reasonable time and date for a hearing, taking into account adequate time for members of the ZBA to review the application prior to such hearing. Notice of the hearing shall comply with § 155-24.09. See § 155-24.06 regarding timely action. Upon the hearing, any party may appear in person or by agent or attorney.
(5)
Decision. The ZBA shall render a decision in the form of a motion containing a full record of the findings and determination of the ZBA and basis for such determination, and shall be made part of the meeting minutes. The concurring vote of a majority of the members of the ZBA shall be necessary to reverse or otherwise modify the action subject to the appeal. A member of the ZBA shall not participate in a public hearing, deliberation, or vote, on the same matter that the member voted on as a member serving in the capacity of the Planning Commission or Village Council. However, the member may consider and vote on other unrelated matters involving the same property.
§ 155-26.06 Interpretations.
A.
Authority. The ZBA shall hear and decide upon requests to interpret the provisions of this chapter when it is alleged that certain provisions are not clear or that they could have more than one meaning, including the determination of the precise location of the boundary lines between zoning districts, application of off-street parking requirements for a specific use, and whether a particular use is authorized in a particular district.
B.
Standards. In deciding on an interpretation, the ZBA shall be guided by the following:
(1)
An interpretation shall be consistent with the intent and purpose of this chapter and the specific article in which the language in question is contained.
(2)
A text interpretation shall apply to the specific provision for which the interpretation is requested, and shall not extend to matters beyond such specific provision.
(3)
A zoning district boundary interpretation shall be guided by § 155-3.02.
(4)
All interpretations shall take into account any relevant interpretations previously issued by the ZBA and any relevant past ordinance administration practices.
(5)
Prior to deciding a request for an interpretation, the ZBA may confer with Village staff and consultants to gain insight into the provision subject to interpretation and any consequences which may result from differing decisions.
C.
Procedures.
(1)
Application requirements. A written application for an interpretation shall be completed and filed with the Zoning Administrator on forms established for that purpose. Application for an interpretation shall specify, at a minimum, the name, address, and phone number of the applicant; the standard, regulation or provision requiring an interpretation; and a plot plan, site plan, or similar drawing illustrating the application or relevance of such interpretation. A minimum of seven copies of the completed application shall be submitted along with any application fees.
(2)
Hearing. Upon receipt of an application, the chairperson of the ZBA shall fix a reasonable time and date for a hearing, taking into account adequate time for members of the ZBA to review the application prior to such hearing. Notice of the hearing shall comply with § 155-24.09. See § 155-24.06 regarding timely action. Upon the hearing, any party may appear in person or by agent or attorney.
(3)
Decision. The ZBA shall render a decision in the form of a motion containing a full record of the findings and determination of the ZBA, and basis for such determination, and shall be made part of the meeting minutes. The concurring vote of a majority of the members of the ZBA shall be necessary to make an interpretation.
(a)
A decision providing an interpretation may be accompanied by a recommendation to the Planning Commission for consideration of an amendment of the Ordinance to address what the ZBA may find is a problematic aspect of the Ordinance.
§ 155-26.07 Variances.
A.
Authority. The ZBA shall have the power to authorize specific variances from specific site development standards of this chapter, such as lot area and width requirements, building height and setback requirements, yard width and depth requirements, lot depth to width ratio requirements, off-street parking and loading space requirements, and sign requirements. The ZBA shall not have the power to authorize variances pertaining to permitted uses of land in a district.
B.
Standards. The ZBA shall have the power to authorize variances from specific site development requirements provided that all of the standards listed below are met and the record of proceedings of the ZBA contains evidence supporting each conclusion.
(1)
That there are practical difficulties that prevent carrying out the strict letter of this chapter due to unique circumstances specific to the property such as its narrowness, shallowness, shape, or topography, that do not generally apply to other property or uses in the same district, and shall not be recurrent in nature. These difficulties shall not be deemed economic, but shall be evaluated in terms of the use of a particular parcel of land.
(2)
That the practical difficulty or special circumstance is not a result of the actions of the applicant.
(3)
That the variance will relate only to property described in the variance application.
(4)
That the variance will be in harmony with the purpose of this chapter and the intent of the district, including the protection of public health, safety and welfare in general and vehicular and pedestrian circulation specifically.
(5)
That the variance will not cause a substantial adverse effect upon surrounding property including property values and the development, use and enjoyment of property in the neighborhood or district.
(6)
That strict compliance with the site development requirement in question would unreasonably prevent the owner from using the property for a permitted purpose, or would render conformity unnecessarily burdensome.
(7)
That the variance requested is the minimum amount necessary to overcome the inequality inherent in the particular property or mitigate the practical difficulty.
C.
Procedures.
(1)
Application requirements. Application for a variance shall specify, at a minimum, the name, address, and phone number of the applicant; the legal description for the lot subject to the variance; a specification of the Ordinance's standards for which a variance is sought and the specific variance being requested; and a plot plan, site plan, elevation drawing or similar drawing prepared by a registered land surveyor or registered engineer that clearly illustrates property lines, property line bearings and dimensions, existing buildings and structures, and the proposed improvements to the lot for which the variance is requested. In all variance proceedings, it shall be the responsibility of the applicant to provide information, plans, testimony and/or evidence from which the ZBA may make the required findings, including any information the applicant may choose to submit to demonstrate conformance with the standards of Subsection B above. A minimum of seven copies of the completed application shall be submitted along with any application fees.
(2)
Hearing. Upon receipt of an application, the chairperson of the ZBA shall fix a reasonable time and date for a hearing, taking into account adequate time for members of the ZBA to review the application prior to such hearing. Notice of the hearing shall comply with § 155-24.09. See § 155-24.06 regarding timely action. Upon the hearing, any party may appear in person or by agent or attorney.
(3)
Decision. The ZBA shall render a decision in the form of a motion containing a full record of the findings and determination of the ZBA, and basis for such determination, and shall be made part of the meeting minutes. The concurring vote of a majority of the members of the ZBA shall be necessary to grant a variance.
(a)
In granting a variance, the ZBA may prescribe appropriate conditions and safeguards in conformity with this chapter. In the case where the ZBA prescribes such conditions, the ZBA may require that a performance guarantee be furnished to ensure compliance with such conditions, according to § 155-31.06. Violations of such conditions and safeguards, when made a part of the terms under which the variance is granted, shall be deemed a violation of this chapter. See Section 504 of the Michigan Zoning Enabling Act (MCLA § 125.3504) regarding conditional approvals.
(b)
A variance shall become null and void unless the construction authorized by such variance has been commenced within 180 days after the granting of the variance, and there is a continuous good faith intention to continue construction to completion. The ZBA may extend this time limit upon its finding that no substantial changes have occurred to ordinance regulations, abutting properties, or other conditions that undermine the basis for the original issuance of the variance.
(c)
No application for a variance that has been acted upon shall be resubmitted for a period of one year from the date of denial, except on the grounds of newly discovered evidence or proof of changed conditions having bearing on the basis for the original denial, in the discretion of the ZBA.
§ 155-26.08 Review by circuit court.
A.
Circuit court review. The decision of the ZBA shall be final. However, any party aggrieved by an order, determination or decision of the ZBA may obtain a review thereof in the Circuit Court provided that application is made to the Court within 30 days after the ZBA issues its decision in writing signed by the chairperson, or within 21 days after the ZBA approves the minutes of its decision. The Circuit Court shall review the record and decision of the ZBA to insure that the decision:
(1)
Complies with the constitution and laws of the state.
(2)
Is based upon proper procedure.
(3)
Is supported by competent, material, and substantial evidence on the record.
(4)
Represents the reasonable exercise of discretion granted by law to the ZBA.