Buchanan Township City Zoning Code
ARTICLE XXVI
Zoning Board of Appeals
§ 300-26.01 Creation.
It is hereby created under the Michigan Zoning Enabling Act, Act 110 of 2006 ("the Act"), MCLA § 25.3101 et seq., as amended, the Township of Buchanan Zoning Board of Appeals, referred in this chapter as the "Zoning Board of Appeals." The Zoning Board of Appeals (ZBA) shall be constituted and appointed as provided by "the Act," and shall be composed of five members and two alternate members may be appointed to serve in accordance with the Act.
§ 300-26.02 Intent.
The purpose of this chapter is to provide guidelines and standards to be followed by the Zoning Board of Appeals to act on matters where this chapter or state law gives jurisdiction to the ZBA.
§ 300-26.03 Adoption of rules and procedures.
The Zoning Board of Appeals shall establish fixed rules and regulations governing its procedures, meetings, operations, and actions. Said rules shall be made available to the public and shall be in conformance with this chapter and the Michigan Zoning Enabling Act, Act 110 of 2006, as amended.
§ 300-26.04 Jurisdiction of Zoning Board of Appeals.
General authority. The ZBA shall have the authority to act on those matters where this chapter provides for administrative action by the Zoning Administrator or the Planning Commission, and to authorize a variance as defined in this chapter and laws of the State of Michigan. Such authority shall be subject to the rules and standards in this section. The ZBA shall not have the authority to alter or change zoning district classifications of any property, nor to make any change in the text of this chapter. The Zoning Board of Appeals shall not have authority to hear appeals related to any decision or conditions attached to any decision pertaining to a special use permit, planned unit development, or site plan review.
Administrative review. The ZBA shall have authority to hear and decide appeals where it is alleged that there is an error in an order, requirement, permit, decision, or refusal made by an official, board or commission in carrying out or enforcing any provisions of this chapter.
Interpretation. The ZBA shall have authority to hear and decide appeals or requests for interpretation of this chapter, including the Zoning Map. The ZBA shall make such decisions so that the spirit and intent of this chapter shall be observed. Text interpretations shall be limited to the issues presented, and shall be based upon a reading of the chapter as a whole, and shall not have the effect of amending the chapter. Map and boundary interpretations shall be made based upon rules in the chapter, and any relevant historical information. In carrying out its authority to interpret the chapter, the ZBA shall consider reasonable and/or practical interpretations which have been consistently applied in the administration of the chapter. Prior to deciding a request for an interpretation, the ZBA may confer with staff and/or consultant to determine the basic purpose of the provision subject to interpretation and any consequences which may result from differing decisions. A decision providing an interpretation may be accompanied by a recommendation for consideration of an amendment of the chapter.
Variances. The ZBA shall have authority in specific cases to authorize one or more variances from the strict letter and terms of this chapter by varying or modifying any of its rules or provisions so that the spirit of this chapter is observed, public safety secured, and substantial justice done. A dimensional or non-use variance allows a deviation from the dimensional (i.e., height, bulk, setback) requirements of the chapter. A use variance authorizes the establishment of a use of land that is otherwise prohibited in a zoning district. The ZBA is not authorized to grant use variances by this chapter. Such authority shall be exercised in accordance with the following standards:
The ZBA may grant a requested "non-use" variance only upon a finding that practical difficulties exist. A finding of practical difficulties shall require demonstration by the applicant of all of the following:
Strict compliance with restrictions governing area, setback, frontage, height, bulk, density or other non-use matters will unreasonably prevent the owner from using the property for a permitted purpose or will render conformity with the chapter unnecessarily burdensome.
The variance will do substantial justice to the applicant, as well as to other property owners.
A lesser variance than requested will not give substantial relief to the applicant and/or be consistent with justice to other property owners.
The need for the variance is due to unique circumstances peculiar to the property and not generally applicable in the area or to other properties in the same zoning district.
The problem and resulting need for the variance has not been self-created by the applicant and/or the applicant's predecessors.
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. Administrative officials and other persons may, but shall not be required to, provide information, testimony and/or evidence on a variance request.
Conditions.
The ZBA may impose reasonable conditions in connection with an affirmative decision on an appeal, interpretation or variance request. The conditions may include requirements necessary to achieve any of the following:
To ensure that public services and facilities affected by a proposed land use or activity will be capable of accommodating increased service and facility loads caused by the land use or activity under consideration.
To protect the natural environment or to conserve natural resources and energy.
To ensure compatibility with adjacent uses of land.
Conditions imposed shall be designed to protect natural resources and the health, safety, and welfare of affected parties. Conditions imposed with respect to the approval of a variance shall be recorded as part of the ZBA minutes and shall remain unchanged except upon the mutual consent of the ZBA and the landowner following notice and hearing as required in a new case. The breach of any such conditions shall automatically invalidate the permit granted.
§ 300-26.05 Application and notices.
Application. All applications to the ZBA shall be filed with the Township Clerk or a designated representative, on forms provided by the Township, and shall be accompanied by the applicable fee established by resolution of the Township Board. The Clerk shall transmit the application and information to each member of the Zoning Board of Appeals within five days of the filing date. Applications shall include a completed application form, fee, all plans, studies and other information and data to be relied upon by the applicant.
Plot plan.
A plot plan shall be required with all variance requests. The plan shall be to scale and include all property lines and dimensions; setbacks; bearings of angles correlated with the legal description and a north arrow; all existing and proposed structures and uses on the property and abutting lots and parcels, dimensions of the structures and their dimensioned locations; lot area calculations necessary to show compliance with the regulations of this chapter. Where an application provides a variance sought in conjunction with a regular site plan review, a site plan prepared according to Article XXIII shall satisfy the requirements of this section.
The ZBA shall have the authority to require a land survey prepared by a registered land surveyor or registered engineer registered in the State of Michigan when the ZBA determines it to be necessary to ensure accuracy of the plan.
The ZBA shall have no obligation to consider and/or grant a request for relief unless and until a conforming and complete application has been filed, including relevant plans, studies and other information. A completed application for a hearing before the Zoning Board of Appeals including relevant plans, studies, and other information must be submitted before a public hearing is scheduled.
Application involving an appeal of administrative order. In a case involving an appeal from an action of an administrative official or entity, the administrative official or the clerk or secretary of the administrative entity, as the case may be, shall transmit to the ZBA copies of all papers constituting the record upon which the action was taken, together with a letter specifying an explanation of the action taken.
Consent of property owner required. Application to the ZBA shall be made with the full knowledge and written consent of all owners of the property in question, acknowledged by the owner(s) on the application. This requirement shall include the consent of a land contract seller to the relief sought by a land contract purchaser.
Notice. The Township shall publish notice of the request consistent with § 300-28.02C, Publication and delivery of notice of public hearing, of this chapter.
Stay of proceedings. An appeal shall have the effect of staying all proceedings in furtherance of the action being appealed unless the officer or entity from whom the appeal is taken certifies to the ZBA that, by reason of facts stated in such certification, a stay would in his or her opinion cause imminent peril to life or property. If such certification is made, proceedings shall not be stayed unless specifically determined by the ZBA or by a court of competent jurisdiction.
Decision by the Zoning Board of Appeals. The concurring vote of a majority of the membership of the ZBA shall be necessary to reverse any order, requirement, decision, or determination of an administrative official, board or commission made in the enforcement of this chapter, to decide in favor of an applicant on any matter upon which the ZBA is required to pass under this chapter, or to grant a variance from the terms of this chapter. A decision shall be made upon each case within 60 days after a request or appeal has been filed with the ZBA unless additional time is agreed upon with the parties concerned.
§ 300-26.06 Disposition and duration of approval.
ZBA powers. The ZBA may reverse, affirm, vary or modify any order, requirement, decision, or determination presented in a case within the ZBA's jurisdiction, and to that end, shall have all of the powers of the officer, board or commission from whom the appeal is taken, subject to the ZBA's scope of review, as specified in this chapter and/or by law. The ZBA may remand a case for further proceedings and decisions, with or without instructions.
Decision final. A decision by the ZBA shall not become final until the expiration of 10 days from the date of entry of such order and service of the same upon the parties concerned unless the ZBA shall find the immediate effect of such order is necessary for the preservation of property or personal rights or public safety and shall so certify on the record. To the extent that decisions are requested or required to be in writing, the minutes of the ZBA meeting, and decision, as proposed under supervision of the secretary, shall constitute the written decision.
Period of validity. Any decision of the ZBA favorable to the applicant shall remain valid only as long as the information and data relating to such decision are found to be correct, and the conditions upon which the decision was based are maintained. A variance granted by the ZBA shall be commenced within one year of action by the ZBA, unless otherwise specified by the ZBA, and within such period of effectiveness, actual, on-site improvement of property in accordance with the approved plan and the relief granted, under a valid building permit, must be commenced or the grant of relief shall be deemed void.
Record of proceedings. The secretary of the ZBA, shall prepare and keep minutes of the ZBA proceedings, showing the findings, decisions, conditions, if any, and votes of each member in each case, including a member's absence or failure to vote. The minutes shall be the responsibility of the secretary of the ZBA, and shall be subject to approval of the ZBA. To the extent that a written decision in a case is requested or required, the minutes, prepared under the supervision of the ZBA secretary, along with the plan submitted, shall serve as the written decision, even if the minutes are awaiting final ZBA approval. The official records of the ZBA proceedings shall be filed in the Township Hall and shall be public records.
Appeal of a ZBA decision. An appeal of a ZBA decision may be taken to Berrien County Circuit Court.
New application for variance. If the ZBA denies a request for a variance, the decision of the ZBA shall not be subject to reconsideration for a period of 365 days, whereupon the applicant may submit a new application for the variance. However, the ZBA may waive the one-year period if conditions upon which their original decision was made change, or if information relating to their original decision are found to be incorrect or inaccurate.
Site plan requirements. If an application or appeal to the ZBA involves a development which requires a recommendation of site plan approval by the Planning Commission, the applicant or appellant shall first apply for site plan approval as set forth in Article XXIII, Site Plan Review and Approval Procedures. The Planning Commission shall review the site plan and shall determine the layout and other features required before granting a recommendation of approval of the site plan. The Planning Commission shall then transmit a copy of the site plan and the Planning Commission's findings thereon to the Zoning Board of Appeals.