Cannon Township City Zoning Code
ARTICLE 31
Zoning Board of Appeals
§ 450-31.01 Creation.
The Zoning Board of Appeals (the "Board of Appeals") is hereby created. The Board of Appeals shall have the authority and responsibilities conferred by law and this chapter.
§ 450-31.02 Membership.
The Board of Appeals shall consist of five members. The members shall be appointed by affirmative majority vote of the total number of members of the Township Board.
A.
One member of the Board of Appeals shall be a member of the Township Planning Commission.
B.
One member of the Board of Appeals may be a member of the Township Board.
D.
There may be not more than two alternate members of the Board of Appeals, appointed in the same manner as regular members of the Board of Appeals. They shall be electors of the Township residing within its zoning jurisdiction. They shall have the authority and duties stated in § 450-31.13.
E.
An employee or contractor of the Township shall not serve as a member of the Board of Appeals.
§ 450-31.03 Terms of office.
A member of the Board of Appeals shall have a term of office of three years and until the member's successor is appointed and qualifies; provided, however, that the terms of the members first appointed shall be for varying numbers of years, none of them exceeding three, so as to provide for differing expiration dates of members' terms.
A.
The terms of the Board of Appeals members who are a Township Board member and a Planning Commission member shall coincide with their respective terms as members of those bodies.
B.
A member of the Board of Appeals may be reappointed.
C.
A vacancy in the office of a member of the Board of Appeals shall be filled for the remainder of the unexpired term in the same manner as an original appointment is made.
§ 450-31.04 Jurisdiction.
A.
The Board of Appeals shall act upon all questions arising in the administration of this chapter, including interpretation of the Zoning Map and the text of this chapter.
B.
The Board of Appeals shall hear and decide all appeals from any order, decision or determination made by the Zoning Administrator or other person authorized to administer the provisions of this chapter.
C.
The Board of Appeals shall hear and decide all matters assigned to it for decision under the terms of this chapter.
E.
An appeal to the Board of Appeals stays all proceedings in furtherance of the action appealed from; provided, however, that if the body or officer from whom the appeal is taken certifies to the Board of Appeals, after the notice of appeal is filed, that by reason of facts stated in such certification, a stay would cause imminent peril to life or property, then such proceedings may be stayed only by a restraining order issued by the Board of Appeals or the Circuit Court.
§ 450-31.05 Meetings and procedures.
A.
The Board of Appeals shall adopt bylaws and rules of procedure for the conduct of its meetings and related purposes.
B.
The Board of Appeals shall conduct business only when a majority of its members is present, including any alternate member serving in the absence of a regular member in accordance with § 450-31.13. Three members shall constitute a quorum.
C.
At the first meeting of each calendar year, the Board of Appeals shall adopt a schedule of regular meetings; provided, however, that a meeting need not be held if pending matters do not warrant a meeting.
D.
The concurring vote of a majority of the members of the Board of Appeals shall be necessary to reverse an order, requirement, decision or determination of the Zoning Administrator; to grant a dimensional variance from the provisions or requirements of this chapter; to interpret the text of this chapter or the Zoning Map; and to hear and decide a matter upon which the Board of Appeals is required to pass under the terms of this chapter.
E.
The concurring vote of at least 2/3 of the members of the Board of Appeals shall be necessary to approve a land use variance.
F.
The Board of Appeals shall conduct a public hearing on an appeal of an administrative order, decision or determination; on an application for a dimensional or land use variance; on an application for an interpretation of the text of this chapter or the Zoning Map; and on any matter upon which the Board of Appeals is required to pass under the terms of this chapter.
G.
Notice of a public hearing of the Board of Appeals shall be given by publication and by U.S. Mail in accordance with § 450-32.06; provided, however, if application seeking an interpretation of this chapter or an appeal of an administrative decision does not involve a specific parcel of land, notice of the public hearing need only be published as provided in § 450-32.06 and provided to the applicant, but notice to other parties shall not be required.
H.
The Board of Appeals may convene special meetings at such times as it shall determine.
I.
The Board of Appeals shall prepare and maintain minutes of its proceedings in accordance with its bylaws or rules of procedure.
§ 450-31.06 Types of available relief.
The Board of Appeals shall have authority to hear and decide appeals and other applications for relief as follows:
A.
Cases in which it is alleged that there is error or misinterpretation in any order, decision or determination made by the Zoning Administrator or any other person authorized to administer the provisions of this chapter.
B.
Cases in which it is alleged that there are practical difficulties in carrying out the requirements of this chapter by reason of:
C.
Cases in which it is alleged that there is unnecessary hardship in carrying out the requirements of this chapter as to the use of land, a building or structure, or any of them in combination.
§ 450-31.07 Dimensional variances.
A.
If there are practical difficulties in carrying out the requirements of this chapter because of the dimensional characteristics of a lot or parcel of land, a building or structure, or any of them in combination, the Board of Appeals may grant a dimensional variance in accordance with this section, so that the spirit of this chapter is observed, public safety secured and substantial justice done, but only if the applicant demonstrates through competent, material and substantial evidence on the record that all of the following exist:
(1)
That there are practical difficulties in complying with the requirements of this chapter with respect to the dimensional characteristics of a lot or parcel of land, a building or structure, or any of them in combination, because of exceptional or extraordinary physical conditions involving land, a building or structure, or any of them. A practical difficulty resulting from an exceptional or extraordinary condition may include, for example, the exceptional narrowness, shallowness, shape or area of land; exceptional conditions in the elevations of land; the presence of unbuildable areas, such as wetlands or a floodplain; or other exceptional or extraordinary physical condition of the land or a building or structure.
(2)
That there are exceptional or extraordinary conditions or circumstances which are peculiar to the land, structures or buildings involved and which are different from those of typical properties in the same zoning district.
(3)
That compliance with specified provisions of this chapter would deprive the applicant of property rights commonly enjoyed by the owners or users of other properties in the same zoning district.
(4)
That the grant of the requested variance would not be substantially detrimental to other lands and land uses and would not be contrary to the spirit and purpose of this chapter.
B.
A dimensional variance shall not be granted if the practical difficulty in carrying out the provision or requirement of this chapter was created by or resulted from the affirmative action of the applicant; such practical difficulty shall be that which exists irrespective of the ownership of the property.
C.
The exceptional or extraordinary circumstance or condition alleged by the applicant shall apply only to the dimensional characteristics of the land, a building or structure, or any of them in combination, but shall not apply to the applicant personally. An applicant's alleged economic hardship or potential for financial profit shall not be grounds for the granting of a dimensional variance.
D.
A nonconforming use of nearby lands, structures or buildings shall not of itself constitute grounds for the granting of a dimensional variance.
E.
A dimensional variance, if granted, shall be the minimum necessary variance in order to grant relief created by the practical difficulty alleged by the applicant.
F.
The Board of Appeals may include terms, conditions and requirements in the granting of a dimensional variance, for the purpose of carrying out the intent and purposes of this chapter and for the protection or advancement of the public interest.
§ 450-31.08 Land use variances.
A.
If there is an unnecessary hardship in complying with the provisions or requirements of this chapter pertaining to the use of land, a building or structure, or in conducting any of the permitted land uses in the zone district, the Board of Appeals may grant a land use variance in accordance with this section, so that the spirit of this chapter is observed, public safety secured and substantial justice done, but only if the applicant demonstrates that competent, material and substantial evidence on the record that all of the following exist:
(1)
That there is an unnecessary hardship in complying with the requirements of this chapter with respect to the use of the land, a building or structure, or any of them in combination, because the land, a building or structure cannot reasonably be used for any of the permitted uses or special land uses of the zone district or because a use requirement for the land, a building or structure cannot reasonably be complied with.
(2)
That the land use proposed by the applicant is compatible with existing or proposed land uses on adjacent and nearby properties.
(3)
That the proposed land use would be adequately served by the existing streets and, if available, public sanitary sewer service and public water supply or, if such utilities are not available, then by an on-site sanitary sewage disposal facility and an on-site water well.
(4)
That the grant of the requested land use variance would not be substantially detrimental to other lands and land uses and would not be contrary to the spirit and purposes of this chapter, as stated in § 450-1.02, including, in particular, the purpose of assuring the compatibility of land uses, buildings and structures in each zoning district.
B.
The land use variance proposed by an applicant shall not be a land use which is currently a permitted use or a special land use in the zone district in which the property is located.
C.
A land use variance shall not be granted if the unnecessary hardship in complying with the requirements of this chapter with respect to the use of the land, a building or structure, or any of them in combination, was created by or resulted from the affirmative action of the applicant; such unnecessary hardship shall be that which exists irrespective of the ownership of the property.
D.
The unnecessary hardship alleged by the applicant shall arise only because of the land use characteristics of the land, a building or structure, or any of them in combination, but shall not be an unnecessary hardship of the applicant personally. An applicant's alleged economic hardship or potential for financial profit shall not be grounds for the granting of a land use variance.
E.
A nonconforming use of nearby lands, structures or buildings shall not of itself constitute grounds for the granting of a land use variance.
F.
A variance, if granted, shall be the minimum necessary variance in order to grant relief created by the unnecessary hardship alleged by the applicant.
G.
The Board of Appeals may include terms, conditions and requirements in the granting of a land use variance, for the purpose of carrying out the intent and purposes of this chapter and for the protection or advancement of the public interest.
§ 450-31.09 Time limitations on variances.
[Amended 11-26-2018 by Ord. No. 2018-7Z]
A.
The construction or other work authorized by a variance shall be completed not later than one year after the granting of the variance; provided, however, that the Board of Appeals may grant an extension of up to one additional year, upon request by the applicant within one year after the original approval of the variance, if the work is diligently proceeding toward completion or the Board finds that extenuating circumstances have prevented the completion of the authorized work or if the Board determines that an extension is otherwise justified.
(1)
A request for such an extension shall be considered at a public meeting of the Board of Appeals, but a public hearing shall not be required.
(2)
Notwithstanding the above provisions in this Subsection A, if a regular meeting of the Board of Appeals is not scheduled to be held prior to the expiration of one year after the original approval of the variance, and if the applicant has timely applied for an extension, then the Zoning Administrator is authorized to grant an extension for the ensuing period up to the time of the next Board of Appeals meeting at which the Board will consider the requested extension, for up to the remainder of the one-year extension period.
B.
An application for a variance or other available relief which has been denied in whole or in part by the Board of Appeals shall not be resubmitted within one year after the meeting at which the denial occurred, unless the applicant submits material and substantial new evidence or proof of a change or changes in significant land use conditions affecting the grounds on which the denial was based.
§ 450-31.10 Applications for relief.
A.
An application to the Board of Appeals for relief from an order, decision or determination by the Zoning Administrator, for a variance or for other relief available within the jurisdiction of the Board of Appeals, may be taken by any person aggrieved by such order, decision or determination or by the property owner or other party in interest of land, a building or structure, or any of them in combination, as to which grounds for available relief are asserted.
B.
At the time an application is submitted, the applicant shall also pay the required application fee and shall make any required zoning escrow deposit for the purpose of reimbursing the Township for its expenses in the matter.
C.
An application to appeal an order, decision or determination by the Zoning Administrator shall be filed not later than 30 days after such order, decision or determination was made.
D.
An applicant shall apply for available relief from the Board of Appeals by means of an application form provided by the Township.
E.
An application to the Board of Appeals shall include an accurate drawing, drawn to scale (and, for an application for a dimensional variance, a survey of the land prepared by a state-licensed surveyor depicting current and requested dimensions) or otherwise showing all relevant dimensions, buildings, structures and other land features pertaining to the relief requested, and depicting the proposed construction or other undertaking as to which relief or other action by the Board of Appeals is requested.
F.
The application, together with the application fee, the zoning escrow deposit and the required accurate drawing, shall be submitted to the Zoning Administrator for review as to completeness and other compliance with the terms of this article. Upon the Zoning Administrator's determination that the application is complete, the matter shall be scheduled for public hearing by the Board of Appeals if all other required matters with respect to the application are in order.
§ 450-31.11 Decisions by Board of Appeals.
A.
The Board of Appeals shall decide all applications and appeals within a reasonable time.
B.
The Board of Appeals may reverse or affirm, in whole or in part, or may modify the order, decision, or determination that is being appealed. For such purpose, the Board shall be deemed to have all the powers of the Township officer or body from whom the appeal was taken. In its decision, the Board of Appeals may direct the issuance of all relevant Township permits.
C.
In cases of alleged practical difficulties or unnecessary hardship, the Board shall, if relief is warranted, grant only such relief as is necessary to relieve the practical difficulties or unnecessary hardship. Such decision shall be binding upon the Zoning Administrator or other Township officials having authority in the circumstances. The Township Building Official shall incorporate the terms and conditions of the Board of Appeals' decision in any permit issued to the applicant pursuant to the decision.
D.
A decision of the Board of Appeals on an appeal from a Township officer or body shall be final; provided, however, that a party aggrieved by the Board of Appeals' decision may appeal to the Circuit Court within the time, to the extent and in the manner permitted by law.
E.
The members of the Board of Appeals who are members of the Township Board and of the Planning Commission, respectively, shall not participate in or vote on matters that the members previously voted on in their respective capacities as Township Board member or Planning Commission member.
§ 450-31.12 Officers.
A.
The Board of Appeals shall elect from its members a Chairperson, Vice Chairperson and Secretary.
B.
The Board of Appeals member who is a Township Board member may not serve as Chairperson of the Board of Appeals.
C.
An officer of the Board of Appeals shall have a term of one year and until the officer's successor is elected and qualifies. An officer may be reelected.
D.
An alternate member of the Board of Appeals shall not be eligible for election as an officer of the Board, but an alternate member who is called upon to serve as a member of the Board in the absence of a regular member who is an officer of the Board may, while serving, carry out the duties of the officer in whose absence the alternate member is serving.
§ 450-31.13 Alternate members.
A.
The Township Board may appoint not more than two alternate members of the Board of Appeals, in the same manner as regular members are appointed.
B.
An alternate member may serve as a member of the Board of Appeals in the absence of a regular member if the regular member is unable to attend one or more meetings.
C.
An alternate member may also serve as a member of the Board for the purpose of reaching a decision in a case in which a regular member has abstained from participation because of conflict of interest.
D.
An alternate member who is called to serve in a case before the Board shall serve in the case until a final decision is made, whether at one or more meetings.
E.
An alternate member of the Board of Appeals, when serving as a member, has the same voting rights as a regular member of the Board.
§ 450-31.14 Removal of members; conflicts of interest.
A.
A member of the Board of Appeals may be removed by the Township Board for misfeasance, malfeasance or nonfeasance in office, upon a written statement of the reasons or grounds for the proposed removal and after a public hearing by the Township Board, after written notice to the member proposed to be removed. At the public hearing, the member who is proposed to be removed shall be given an opportunity to address the Township Board.
B.
A member of the Board of Appeals shall disqualify himself or herself from voting on a matter in which the member has a conflict of interest. Failure of a member to abstain from voting in a matter in which the member has a conflict of interest constitutes malfeasance in office.
§ 450-31.15 Appeals from decisions of Board of Appeals.
A.
Any party aggrieved by a decision of the Board of Appeals may appeal to the Circuit Court. As provided by law, the Circuit Court shall review the record in the case and the decision of the Board of Appeals for the purpose of ensuring that the decision complies with all of the following requirements:
(1)
That it complies with the Constitution and laws of the state.
(2)
That it is based upon proper procedures.
(3)
That it is supported by competent, material and substantial evidence on the record of the Board of Appeals.
(4)
That it represents the reasonable exercise of discretion as granted by law to the Board of Appeals.
B.
If, as provided by law, the Circuit Court finds the record inadequate to accomplish the required review, or if the court determines that additional material exists that with good reason was not presented, the Circuit Court is authorized by law to order further Township proceedings in the matter. In such further proceedings, the Board of Appeals may modify its findings and decision, or the Board may affirm its original decision. The record and decision in such further proceedings shall be filed with the Circuit Court. As provided by law, the court may affirm, reverse or modify the decision of the Board of Appeals.
C.
An appeal from a decision of the Board of Appeals shall be filed within 30 days after the date on which the Board of Appeals issues its decision, in writing, signed by the Chairperson, or within 21 days after the Board of Appeals approves the minutes of the meeting at which its decision was taken.