It is recognized that there are certain instances where it would be in the best interests of the Village, as well as advantageous to property owners seeking a change in zoning boundaries, if certain conditions could be proposed by property owners as part of a request for a rezoning.

It is the intent of this Section to provide a process consistent with the provisions of Section 405 of the Michigan Zoning Enabling Act, P.A. 110 of 2006, by which an owner seeking a rezoning may voluntarily propose conditions regarding the use and/or development of land as part of the rezoning request.

(Ord. No. 316, 5-19-2008)

1.

An owner of land may voluntarily offer in writing conditions relating to the use and/or development of land for which a rezoning is requested. This offer may be made either at the time the application for rezoning is filed or may be made at a later time during the rezoning process.

2.

The required application and process for considering a rezoning request with conditions shall be the same as that for considering rezoning requests made without any offer of conditions, except as modified by the requirements of this Section.

3.

The owner's offer of conditions may not purport to authorize uses or developments not permitted in the requested new zoning district.

4.

The owner's offer of conditions shall bear a reasonable and rational relationship to the property for which rezoning is requested.

5.

Any use or development proposed as part of an offer of conditions that would require a special land use permit under the terms of this Ordinance may only be commenced if a special land use permit for such use or development is ultimately granted in accordance with the provisions of this Ordinance.

6.

Any use or development proposed as part of an offer of conditions that would require a variance under the terms of this Ordinance may only be commenced if a variance for such use or development is ultimately granted by the Zoning Board of Appeals in accordance with the provisions of this Ordinance.

7.

Any use or development proposed as part of an offer of conditions that would require site plan approval under the terms of this Ordinance may only be commenced if site plan approval for such use or development is ultimately granted in accordance with the provisions of this Ordinance.

8.

The offer of conditions may be amended during the process of rezoning consideration provided that any amended or additional conditions are entered voluntarily by the owner. An owner may withdraw all or part of its offer of conditions any time prior to final rezoning action of the Village Council provided that, if such withdrawal occurs subsequent to the public hearing held on the original rezoning request, then a new public hearing with appropriate notice shall be held.

(Ord. No. 316, 5-19-2008)

After holding the required public hearing, the Village Council shall deliberate upon the requested rezoning and may approve or deny the conditional rezoning request.

The Village Council's deliberations shall include, but not be limited to a consideration of the factors for rezoning set forth in this Ordinance.

(Ord. No. 316, 5-19-2008)

1.

If the Village Council finds the rezoning request and offer of conditions acceptable, the offered conditions shall be incorporated into a formal written Statement of Conditions acceptable to the owner and conforming in form to the provisions of this Section. The Statement of Conditions shall be incorporated by attachment or otherwise as an inseparable part of the ordinance adopted by the Village Council to accomplish the requested rezoning.

2.

The Statement of Conditions shall:

a.

Be in a form recordable with the Berrien County Register of Deeds or, in the alternative, be accompanied by a recordable Affidavit or Memorandum prepared and signed by the owner giving notice of the Statement of Conditions in a manner acceptable to the Village Council.

b.

Contain a legal description of the land to which it pertains.

c.

Contain a statement acknowledging that the Statement of Conditions runs with the land and is binding upon successor owners of the land.

d.

Incorporate by attachment or reference any diagram, plans or other documents submitted or approved by the owner that are necessary to illustrate the implementation of the Statement of Conditions. If any such documents are incorporated by reference, the reference shall specify where the document may be examined.

e.

Contain a statement acknowledging that the Statement of Conditions or an Affidavit or Memorandum giving notice thereof may be recorded by the Village with the Register of Deeds.

f.

Contain the notarized signatures of all of the owners of the subject land preceded by a statement attesting to the fact that they voluntarily offer and consent to the provisions contained within the Statement of Conditions.

3.

Upon the rezoning taking effect, the Zoning Map shall be amended to reflect the new zoning classification along with a designation that the land was rezoned with a Statement of Conditions. The Village Clerk shall maintain a listing of all lands rezoned with a Statement of Conditions.

4.

The approved Statement of Conditions or an Affidavit or Memorandum giving notice thereof shall be filed by the Village with the Register of Deeds. The Village Council shall have authority to waive this requirement if it determines that, given the nature of the conditions and/or the time frame within which the conditions are to be satisfied, the recording of such a document would be of no material benefit to the Village or to any subsequent owner of the land.

5.

Upon the rezoning taking effect, the use of the land so rezoned shall conform thereafter to all of the requirements regulating use and development within the new zoning district as modified by any more restrictive provisions contained in the Statement of Conditions.

(Ord. No. 316, 5-19-2008)

1.

Any person who establishes a development or commences a use upon land that has been rezoned with conditions shall continuously operate and maintain the development or use in compliance with all of the conditions set forth in the Statement of Conditions. Any failure to comply with a condition contained within the Statement of Conditions shall constitute a violation of the Zoning Ordinance and be punishable accordingly. Additionally, any such violation shall be deemed a nuisance per se and subject to judicial abatement and/or specific performance as provided by law.

2.

No permit or approval shall be granted under this Ordinance for any use or development that is contrary to an applicable Statement of Conditions.

(Ord. No. 316, 5-19-2008)

Unless another time period is specified in the Ordinance rezoning the subject land, the approved development and/or use of the land pursuant to building and other required permits must be commenced upon the land within six (6) months after the rezoning took effect and thereafter proceed diligently to completion.

This time limitation may upon written request be extended by the Village Council if (1) it is demonstrated to the Village Council's reasonable satisfaction that there is a strong likelihood that the development and/or use will commence within the period of extension and proceed diligently thereafter to completion and (2) the Village Council finds that there has not been a change in circumstances that would render the current zoning with Statement of Conditions incompatible with other zones and uses in the surrounding area or otherwise inconsistent with sound zoning policy.

(Ord. No. 316, 5-19-2008)

If approved development and/or use of the rezoned land does not occur within the time frame specified under Subsection 25.07 above, then the land shall revert to its former zoning classification.

The reversion process shall be initiated by the Village Council which will proceed with consideration of rezoning of the land to its former zoning classification. The procedure for considering and making this reversionary rezoning shall thereafter be the same as applies to all other rezoning requests.

(Ord. No. 316, 5-19-2008)

When land that is rezoned with a Statement of Conditions is thereafter rezoned to a different zoning classification or to the same zoning classification but with a different or no Statement of Conditions, whether as a result of a reversion of zoning pursuant to Subsection 25.07 above or otherwise, the Statement of Conditions imposed under the former zoning classification shall cease to be in effect.

Upon the owner's written request, the Village Clerk shall record with the Register of Deeds a notice that the Statement of Conditions is no longer in effect.

(Ord. No. 316, 5-19-2008)

1.

During the time period for commencement of an approved development or use or during any extension thereof granted by the Village Council the Village shall not add to or alter the conditions in the Statement of Conditions.

2.

The Statement of Conditions may be amended thereafter in the same manner as was prescribed for the original rezoning and Statement of Conditions.

(Ord. No. 316, 5-19-2008)

Nothing in the Statement of Conditions nor in the provisions of this Section shall be deemed to prohibit the Village from rezoning all or any portion of land that is subject to a Statement of Conditions to another zoning classification.

Any rezoning shall be conducted in compliance with this Ordinance and the Michigan Zoning Enabling Act, P.A. 110 of 2006.

(Ord. No. 316, 5-19-2008)

The Village shall not require an owner to offer conditions as a requirement for rezoning.

The lack of an offer of conditions shall not affect an owner's rights under this Ordinance.

(Ord. No. 316, 5-19-2008)

In reviewing an application for the rezoning of land, whether the application be made with or without an offer of conditions, factors that should be considered by the Village Council include, but are not limited to, the following:

1.

Whether the rezoning is consistent with the policies and uses proposed for that area in the Village's Land Use Plan;

2.

Whether all of the uses allowed under the proposed rezoning would be compatible with other zones and uses in the surrounding area;

3.

Whether any public services and facilities would be significantly adversely impacted by a development or use allowed under the requested rezoning; and

4.

Whether the uses allowed under the proposed rezoning would be equally or better suited to the area than uses allowed under the current zoning of the land.

(Ord. No. 316, 5-19-2008)