(a)

There shall be established and appointed by the city commission in accordance with Act 110 of the Public Acts of 2006, as amended, a zoning board of appeals. The zoning board of appeals shall consist of seven (7) members. The new appointments shall be as follows: One (1) new member shall be appointed for a period of one (1) year; one (1) new member shall be appointed for a period of two (2) years and one (1) new member shall be appointed to hold offices for the full three-year term. Each new appointment shall coincide with the appointment dates for the remaining members of the board and thereafter shall be reappointed for three-year terms. Any vacancies in the board shall be filled by the city commission not more than one (1) month after the term of the preceding member has expired for the remainder of the unexpired term. One regular member may be a member of the city commission but shall not serve as chairperson. One of the regular members shall be a member of the planning commission. The board shall annually elect its own chairman, vice chairman and secretary.

(b)

The city commission may appoint not more than two alternate members for the same term as regular members to the zoning board of appeals. An alternate member may be called as specified to serve as a member of the zoning board of appeals in the absence of a regular member if the regular member will be unable to attend one (1) or more meetings. An alternate member may also be called to serve as a member for the purpose of reaching a decision on a case in which the member has abstained for reasons of conflict of interest. The alternate member appointed shall serve in the case until a final decision is made. The alternate member has the same voting rights as a regular member of the zoning board of appeals.

(Ord. No. 188, § 1800, 11-8-83; Ord. No. 351, § 1, 8-15-06)

All meetings of the zoning board of appeals shall be held at the call of the chairman and at such times as the board may determine. All hearings conducted by such zoning board of appeals shall be open to the public. The zoning board of appeals shall keep minutes of its proceedings showing the vote of each member upon each question, or if absent or failing to vote, indicating such fact; and shall also keep records of its hearings and other official action. Four (4) members of the zoning board of appeals shall constitute a quorum for the conduct of its business.

(Ord. No. 188, § 1800, 11-8-83)

(a)

The zoning board of appeals shall have the following powers and it shall be its duty:

(1)

To hear and decide appeals where it is alleged there is error of law in any order, requirement, decision or determination made by the chief building inspector in the enforcement of this chapter;

(2)

When approval of the zoning board of appeals is required for an exception, or special approval, it shall determine in addition to the other requirements set forth in this chapter that the proposed structure and use will not rate any threat to public health and safety, will not unduly aggravate traffic problems, and will be so designed and laid out as to be consistent with the general trend and character of development in the city.

(3)

It shall be the duty of the zoning board of appeals, in hearing and deciding appeals, to grant such variances as may be in harmony with the general purpose and intent hereof, so that the function of this chapter be observed, public safety and welfare secured, and substantial justice done, including the following:

a.

Interpret the provisions of the chapter in such a way as to carry out the intent and purpose of the plan, as shown upon the zoning map fixing the use districts, accompanying and made part of this chapter, where street layout actually on the ground varies from the street as shown on the map aforesaid;

b.

Permit the erection and use of a building or use of premises for public utility purposes, upon recommendation of the planning commission;

c.

Permit such modification of the height, building location and area regulations as may be necessary to secure an appropriate improvement of a lot which is of such shape or so located with relation to surrounding development or physical characteristics that it cannot otherwise be appropriately improved without such modification;

d.

Permit temporary buildings and uses for period not to exceed one (1) year.

(b)

Nothing contained in this section shall be construed to give grant to the zoning board of appeals the power or authority to alter or change this chapter or the zoning map; such power and authority being reserved to the city commission in the manner provided by law.

(Ord. No. 188, § 1805, 11-8-83; Ord. No. 296, §§ 1, 2, 5-13-97; Ord. No. 351, § 1, 8-15-06)

(a)

Dimensional or non-use variances. The zoning board of appeals may grant a dimensional or non-use variance only upon a finding that compliance with the strict letter of the restrictions governing area, setbacks, frontage, height, bulk, density, or other dimensional provisions would create a practical difficulty. A finding of practical difficulty shall require demonstration that all the following conditions are met:

(1)

That strict compliance with the restrictions governing area, setbacks, frontage, height, bulk, density, and other similar items would unreasonably prevent the owner from using the property for a permitted purpose or would render conformity with said restrictions unnecessarily burdensome.

(2)

That a variance would do substantial justice to the proponent as well as to other property owners in the zoning district or whether a lesser relaxation of the restrictions would give substantial relief to the proponent and be more consistent with justice to others (i.e., are there other more reasonable alternatives);

(3)

That the plight of the property owner is due to unique circumstances of the property;

(4)

That the proponent's problem is not self-created; and

(5)

That the granting of the variance will not adversely affect the purposes or objectives of the master plan of the city.

(b)

Use variances. Where, owing to special conditions, a literal enforcement of the provisions of this chapter would involve an unnecessary hardship, the zoning board of appeals shall have power upon appeal in specific cases to authorize such variation or modifications of the use regulations of this chapter in accordance with the following procedures, with such conditions and safeguards as it may determine, as may be in harmony with the spirit of this chapter so that public safety and welfare be secured and substantial justice done. No such variance or modification of the provisions of this chapter shall be granted unless it appears that the following requirements and procedures have been met and that all of the following facts and conditions exist:

(1)

Application requirements. In addition to the information required for other variance requests, an application for a use variance shall include a plan drawn to scale detailing the specific use and improvements proposed by the applicant, and a summary of the facts which support each of the following conclusions which would establish unnecessary hardship:

a.

Applicant's property cannot be used for the purposes permitted in the zoning district.

b.

Applicant's plight is due to unique circumstances peculiar to his property and not to general neighborhood conditions.

c.

Applicant's suggested use would not alter the essential character of the area.

d.

Applicant's problem is not self-created.

At the end of each statement (a. through d.) identify all persons who will testify at the hearing with respect to each of the facts, and, separately, identify all persons who will testify at the hearing relative to the respective conclusion (and if any person is to be offered as an expert witness, include with the application a resume which shows the education and experience of such person within the particular area of expertise).

(2)

Prehearing conference.

a.

Prior to the scheduling of a hearing, the applicant shall contact the planning official (the city manager) for the purpose of scheduling a prehearing conference.

b.

The purposes of the prehearing conference shall be to:

1.

Review the procedure for the hearing and identify all persons who will testify (directly or through affidavit) and the evidence to be offered on behalf of the applicant.

2.

Attempt to secure a statement of agreed-upon facts to be used to narrow the matters of dispute and shorten the hearing.

3.

Explore a means of providing relief to the applicant by way of non-use variance from the zoning board of appeals, or other relief which may require action by persons or bodies other than the zoning board of appeals which will afford an adequate remedy for the applicant.

4.

Discuss the need, desirability, and the terms of providing a verbatim record of the hearing.

c.

The planning official shall determine who should be present at the prehearing conference based upon the application submitted and taking into consideration the discussion with the applicant or the applicant's representative.

d.

The prehearing conference shall be scheduled and conducted on an expeditious manner so as to avoid unreasonable delay to the applicant. Sufficient time shall be taken, however, to achieve the purposes of the prehearing conference, stated above.

(3)

Hearing procedure.

a.

The applicant shall have the burden of proof. In order to be entitled to relief, the applicant must demonstrate each of the four (4) factors set forth in paragraphs a. through d. of subsection (1), above.

b.

Manner of presentation:

1.

Community representatives shall present an overview of the zoning regulations involved. This may include an indication of the objectives sought to be achieved in the zoning district, and any planning, engineering, financial, environmental or other considerations which are generally relevant within the zoning district and/or in the general area of the property at issue.

2.

The applicant may present witnesses, including the applicant, or may submit affidavits, for the purpose of attempting to prove facts or conclusions. The applicant shall be provided with the opportunity to present all testimony and evidence proposed to be presented at the prehearing conference, either through witnesses or affidavits; however, the chairperson of the zoning board of appeals may restrict testimony and evidence which would result in unreasonable duplication. In addition, by motion made on its own or at the request of a person at the hearing, the zoning board of appeals may require the presence of any witness who has offered either testimony by affidavit on a material question of fact or testimony of an expert nature, with the view of permitting members of the zoning board of appeals to ask questions of such witnesses.

3.

At the conclusion of the applicant's presentation, interested persons attending the hearing shall be provided with the opportunity to present testimony and evidence in the same manner and subject to requiring the presence and questioning of witnesses, as provided above for the applicant.

4.

When interested persons have completed their presentations, at the same meeting and/or at an adjourned meeting date, testimony and evidence may be presented on behalf of the community in the same manner, and subject to requiring the presence and questioning of witnesses, as provided above for the applicant. The purpose of such presentation shall be to ensure that a full picture, including all relevant information, is before the zoning board of appeals for consideration as it relates to the specific application presented.

5.

If testimony or evidence has been offered by or on behalf of interested persons and/or the community, the applicant shall have the opportunity to present rebuttal, restricted to responding to the points raised by interested persons and the community. The manner of presenting witnesses, and requirement of their presence and questioning, shall be the same as provided above for the applicant's principal case.

6.

At the hearing, the zoning board of appeals may determine to establish other rules of procedure, such as meeting hours on any given day, procedure for presentations by interested persons and/or on behalf of the community, or other rules found to be necessary or appropriate by the board. When questions of procedure arise during the hearing, the chairperson of the zoning board of appeals may solicit the recommendation of the representatives of both the applicant and the community.

7.

If a hearing is not completed at a given meeting within the time period allowed by the zoning board of appeals, the board shall adjourn the hearing to a date certain for continuation.

(4)

Decision of the zoning board of appeals.

a.

The zoning board of appeals may deem it appropriate in any given case to provide an opportunity for anyone presenting testimony or evidence to submit proposed findings of fact and conclusions.

b.

At the conclusion of the hearing, the zoning board of appeals may make its decision at that meeting, or it may adjourn the hearing to a new date for the purpose of reviewing the testimony and evidence, and reviewing proposed findings and conclusions submitted by hearing participants, in preparation for making its decision.

c.

If the zoning board of appeals determines to grant variance relief, it shall be the minimum relief required to allow reasonable use of the property, while maintaining the essential character of the area. Such relief may be in the form of one (1) or more non-use variances and/or in the form of a use variance. The motion may include conditions that are authorized by law.

d.

If the zoning board of appeals adopts a motion to grant variance relief, such motion may be made as a tentative grant of relief, subject to review by the planning commission, planning director/consultant, engineer or other person or official with expertise, with a view of obtaining recommendations on any conditions that may be relevant and authorized by law, and for the further purpose of ensuring that the grant of relief would not violate applicable law. If such a tentative grant of relief is approved, the zoning board of appeals shall request the completion of all reviews by other boards or persons by a specific date, so that relief may be expeditiously finalized.

(c)

In consideration of all appeals and all proposed variations to this chapter, the zoning board of appeals shall, before making any variations from this chapter in a specific case, first determine that the proposed variation will not impair an adequate supply of light and air to adjacent property; nor unreasonably increase the congestion in public streets, nor increase the danger of fire or endanger the public safety, nor unreasonably diminish or impair established property values within the surrounding area, nor in any other respect impair the public health, safety, comfort, morals or welfare of the inhabitants of the city. The concurring vote of four (4) members of the zoning board of appeals shall be necessary to reverse any order, requirements, decision or determination of the chief building inspector, or to decide in favor of the applicant any matter upon which it is authorized by this chapter to render a decision. Provided, however a two-thirds vote of the members shall be necessary to grant a use variance.

(Ord. No. 188, § 1801, 11-8-83; Ord. No. 351, § 1, 8-15-06)

(a)

An appeal shall be taken by filing simultaneously with the chief building inspector and the zoning board of appeals a notice of appeal specifying the grounds thereof. The chief building inspector shall forthwith transmit to the board all papers constituting the record upon which the action appealed from was taken. Such appeals shall be filed within such time as shall be prescribed by the zoning board of appeals by general rule.

(b)

The zoning board of appeals may reverse an order of an administrative official or the planning commission only if it finds that the action or decision appealed meets one or more of the following requirements:

(1)

The decision was arbitrary or capricious.

(2)

The decision was based on an erroneous finding or a material fact.

(3)

The decision constituted an abuse of discretion.

(4)

The decision was based on erroneous interpretation of the zoning code or zoning law.

(Ord. No. 188, § 1804, 11-8-83; Ord. No. 351, § 1, 8-15-06)

A fee, established by resolution of the city commission, shall be paid to the city clerk at the time of notice of appeal is filed, which the city clerk shall forthwith pay over to the city to the credit of the general fund of the city.

(Ord. No. 188, § 1802, 11-8-83; Ord. No. 351, § 1, 8-15-06)

An appeal stays all proceedings in furtherance of the action appealed from, unless the chief building inspector certifies to the zoning board of appeals, after notice of appeal shall have been filed with him, that, by reason of facts stated in his certificate, a stay would, in his opinion, cause imminent peril to life or property. In this case, proceedings shall not be stayed, except by a restraining order which may be granted by the zoning board of appeals or by the circuit court on application, provided notice to show cause why the restraining order should not be issued shall first be served on the chief building inspector.

(Ord. No. 188, § 1803, 11-8-83; Ord. No. 351, § 1, 8-15-06)

The zoning board of appeals shall fix a time for hearing the appeal. The zoning board of appeals may adjourn the hearing from time to time when, in its judgment, adjournment is necessary to ensure due process of law. The zoning board of appeals shall give a written notice of the time and place of such hearing at least fifteen (15) days prior to the date of the hearing to the parties to the appeal and to the persons to whom real property within three hundred (300) feet of the property line of the premises in question is assessed, as shown by the records of the city assessors office, and to all persons to whom real property is assessed within three hundred (300) feet of the boundary of the property in question and to the occupants of all structures within three hundred (300) feet of the boundary of the property in question, the notice to be delivered personally or by first class mail addressed to the respective owners and tenants at the address given in the last assessment roll. If the tenant's name is unknown, the term "occupant" may be used. Upon the hearing, any person may appear in person, by agent, or by attorney. The zoning board of appeals may reverse, or affirm, wholly or partly, or may modify the order, requirement, decision or determination as in its opinion ought to be made in the premises, and to that end shall have all the powers of the officer or body from whom the appeal is taken. The decision of the zoning board of appeals shall be final insofar as it involves discretion or the findings of facts.

(Ord. No. 188, § 1806, 11-8-83; Ord. No. 351, § 1, 8-15-06)

Each case before the zoning board of appeals shall be considered as an individual case and shall conform to the detailed application of the following standards in a manner appropriate to the particular circumstances of such case. All uses as listed in any district requiring board approval for a permit shall be of such location, size and character that, in general, it will be in harmony with the appropriate and orderly development of the district in which it is situated and will not be detrimental to the orderly development of the district in which it is situated and will not be detrimental to the orderly development of adjacent districts. The zoning board of appeals shall give consideration to the following:

(1)

The location and size of the use;

(2)

The nature and intensity of the operations involved in or conducted in connection with it;

(3)

Its size, layout and its relation to pedestrian and vehicular traffic to and from the use;

(4)

The assembly of persons in connection with it will not be hazardous to the neighborhood or be incongruous therewith or conflict with normal traffic of the neighborhood;

(5)

Taking into account among other things, convenient routes of pedestrian traffic, particularly of children;

(6)

Vehicular turning movements in relation to routes of traffic flow, relation to street intersections, site distance and the general character and intensity of development of the neighborhood;

(7)

The location and height of buildings, the location, nature and height of walls, fences and the nature and extent of landscaping of the site shall be such that the use will not hinder or discourage the appropriate development and use of adjacent land and buildings or impair the value thereof;

(8)

The nature, location, size and site layout of the uses shall be such that it will be a harmonious part of the district in which it is situated taking into account, among other things, prevailing shopping habits, convenience of access by prospective patrons, the physical and economic relationship of one (1) type of use to another and characteristic;

(9)

The location, size, intensity and site layout of the use shall be such that its operation will not be objectionable to nearby dwellings, by reason of noise, fumes or flash of lights to a greater degree than is normal with respect to the proximity of commercial to residential uses, nor interfere with an adequate supply of light and air, nor increase the danger of fire or otherwise endanger the public safety.

(Ord. No. 308, § 2, 9-8-98; Ord. No. 351, § 1, 8-15-06)

(a)

A variance granted by the zoning board of appeals which permits the erection, construction, installation or alteration of a building, structure or other thing shall only be valid for a period of one (1) year from the date of the zoning board of appeals' grant of the variance, unless a building permit for such erection, construction, installation or alteration is obtained within said one-year period and such erection, construction, installation and/or alteration is started and proceeds to completion in accordance with the terms of such permit.

(b)

A variance granted by the zoning board of appeals permitting the use of a building, premises or structure shall only be valid for a period of one (1) year from the date of the zoning board of appeals grant of the variance unless such use is established within said one-year period; provided, however, that where such use permitted is dependent upon the erection, construction, installation and/or alteration of a building, structure or thing, such variance shall continue in force and effect if a building permit for such erection, construction, installation or alteration is obtained within such period, and such erection, construction, installation or alteration is started and proceeds to completion in accordance with the terms of such permit.

(c)

Except as otherwise specifically provided in this chapter, any approval, permission and/or exception granted by the zoning board of appeals which permits the erection, construction, installation or alteration of a building, structure or other thing or which permits the use of a building, premises or structure, including but not limited to any approvals, permissions and/or exceptions granted pursuant to sections 24-3, 24-88, 24-102, 24-117, 24-147, 24-163, 24-211, 24-229, 24-230, 24-239 and 24-278, shall only be valid for a period of one (1) year from the date of the zoning board of appeals' grant of the approval, permission and/or exception unless a building permit for such erection, construction, installation or alteration is obtained within said one-year period and the erection, construction, installation or alteration is started and proceeds to completion in accordance with the terms of such permit, or if such use is established within said one-year period; provided, however, that where such use permitted is dependent upon the erection, construction, installation or alteration of a building, structure or other thing, such approval, permission and/or exception shall continue in force and effect if a building permit for such erection, construction, installation or alteration is obtained within such period, and such erection, construction, installation or alteration is started and proceeds to completion in accordance with the terms of such permit.

(Ord. No. 351, § 1, 8-15-06)