(A)

Intent and Purpose. The Zoning Board of Appeals (ZBA) is created which shall perform its duties and exercise its powers as provided in the Michigan Zoning Enabling Act, in accordance with the procedures and standards of these regulations, and in such a way that the objectives of this ordinance shall be observed, public safety secured, and substantive justice done.

(B)

Membership and Operation. The ZBA shall consist of five (5) members who shall be appointed in accordance with the Michigan Zoning Enabling Act, and as follows:

(1)

ZBA members shall be citizens of the United States and residents of the City.

(2)

Appointments shall be for a term of three (3) years, except upon initial establishment of the ZBA, appointments of members shall be for terms of one (1), two (2), and three (3) years respectively, so as to provide for a balanced and consistent number of subsequent appointments in future years.

(3)

Members may be removed for cause by the City Council after consideration of written charges and a public hearing, or as otherwise provided by state law.

(4)

In accordance with state law and the City Charter, vacancies on the ZBA shall be filled by appointment approved by the City Council. Such appointments shall be made not more than thirty (30) days after the preceding member's removal. Such appointments shall be for the remainder of the unexpired term.

(5)

The compensation of the members of the ZBA shall be fixed by the City Council.

(6)

The City Council may also if it so desires appoint not more than two (2) alternate members for the same term as regular members of the ZBA. The alternate members may be called on a rotating basis to sit in the place of regular members of the ZBA in the absence of a regular member. 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 members has abstained for reasons of conflict of interest. The alternate member having been appointed shall serve in the case until a final decision has been made. The alternate member shall have the same voting rights as a regular member of the ZBA.

(C)

Jurisdiction. The ZBA shall have power to act on those matters as defined in this article and by the laws of the State of Michigan. Said jurisdiction includes:

(D)

Appeals. The ZBA is authorized to hear and decide appeals where it is alleged by the appellant that there is an error in any order, requirement, permit, decision, or refusal made by an administrative official, office, department, board, commission, or enforcement officer in carrying out or enforcing any provisions of this ordinance, subject to procedures and standards stated in this Section.

(E)

Appeals shall be granted only in accordance with the Michigan Zoning Enabling Act. The action shall be based on findings regarding the standards set forth in this Section. The extent to which the following criteria apply to a specific case shall be determined by the ZBA and become part of the formal record of the case.

The ZBA may reverse or affirm, wholly or partly, or may modify any administrative order, requirement, decision, or determination, in accordance with the guidelines set forth herein.

(Ord. of 10-12-18(1))

The ZBA may reverse an order of any enforcement official or body only upon determining that the action appealed meets one (1) or more of the following standards:

(1)

Was arbitrary or capricious, or

(2)

Was based on an erroneous finding of a material fact, or

(3)

Constituted an abuse of discretion, or

(4)

Was based on erroneous interpretation of this Zoning Ordinance, zoning law or zoning case law.

(Ord. of 10-12-18(1))

The ZBA is authorized to grant a variance from the strict application of the provisions of this ordinance subject to criteria and considerations stated in the sub-sections below. In granting a variance, the ZBA may attach thereto such conditions and safeguards regarding the location, character, and other features of the proposed uses as it may deem reasonable so that the spirit of this ordinance is observed, public safety secured, and substantial justice done. The ZBA shall clearly state the grounds upon which it justifies the granting or denying of a variance, which shall be made part of the written record.

Variances shall be granted only in accordance with the Michigan Zoning Enabling Act. The action shall be based on findings regarding the standards set forth in this Section. Variances shall not be granted solely upon economic or financial considerations. The applicability of the following criteria to a specific case shall be determined by the ZBA in formulating a decision and shall become part of the formal record of the case.

(A)

Standards for variance decisions by the Appeals Board. The Appeals Board shall base its decisions on variances from the strict requirements of this ordinance so that the spirit of the Ordinance is observed, public safety secured, and substantial justice done based on the following standards:

(B)

For Dimensional Variances. A dimensional variance may be granted by the Zoning Board of Appeals only in cases where the applicant demonstrates in the official record of the public hearing that practical difficulty exists by showing all of the following:

(1)

That the need for the requested variance is due to unique circumstances or physical conditions of the property involved, such as narrowness, shallowness, shape, water, or topography and is not due to the applicants personal or economic difficulty.

(2)

That the need for the requested variance is not the result of actions of the property owner or previous property owners (self-created).

(3)

That strict compliance with the regulations governing area, setback, frontage, height, bulk, density or other dimensional requirements will unreasonably prevent the property owner from using the property for a permitted purpose, or will render conformity with those regulations unnecessarily burdensome.

(4)

That the requested variance is the minimum variance necessary to do substantial justice to the applicant as well as to the other property owners in the district.

(5)

That the requested variance will not cause an adverse impact on surrounding property, property values, or the use and enjoyment of property in the neighborhood or zoning district.

(C)

For use variances. A use variance may be granted by the Zoning Board of Appeals only in cases where the applicant demonstrates in the official record of the public hearing that undue hardship exists by showing all of the following:

(1)

The building, structure, or land cannot be reasonably used for any of the uses permitted by right or by special use permit in the zoning district in which it is located.

(2)

The showing of mere inconvenience is insufficient to justify a variance.

(3)

That the proposed use will not alter the essential character of the neighborhood.

(4)

That the need for the requested variance is not the result of actions of the property owner or previous property owners (self-created).

(D)

Criteria applicable to variances. To grant a variance, the ZBA shall determine that request meets one (1) or more of the following criteria:

(1)

Practical difficulties. Compliance with the strict letter of the restrictions governing area, setbacks, frontage, height, bulk, density, or other dimensional provisions would create practical difficulties, unreasonably prevent the use of the property for a permitted purpose, or render conformity with such restrictions unnecessarily burdensome. The showing of mere inconvenience is insufficient to justify a variance.

(2)

Substantial justice. Granting of a requested variance or appeal would do substantial justice to the applicant as well as to other property owners in the district; or, as an alternative, granting of lesser variance than requested would give substantial relief to the owner of the property involved and be more consistent with justice to other property owners.

(3)

Public safety and welfare. The requested variance or appeal can be granted in such fashion that the spirit of this ordinance will be observed and public safety and welfare secured.

(4)

Extraordinary circumstances. There are exceptional or extraordinary circumstances or conditions applicable to the property involved or to the intended use of the property that do not apply generally to other properties or other similar uses in the same zoning district. The conditions resulting in a variance request cannot be self-created.

(5)

Preservation of property rights. The variance is necessary for the preservation and enjoyment of a substantial property right also possessed by other property owners in the same zoning district.

(6)

Additional considerations. The ZBA shall review all of the following when reviewing a variance to assure that the proposed variance is the minimum modification needed to meet the requirements of the applicant under the Ordinance and may condition any variance based upon its findings:

(a)

The granting of a variance or appeal shall not increase the hazard of fire or otherwise endanger public safety.

(b)

The granting of a variance or appeal shall not unreasonably diminish or impair the value of surrounding properties.

(c)

The granting of a variance or appeal shall not alter the essential character of the neighborhood or surrounding properties.

(d)

The granting of a variance or appeal shall not impair the adequate supply of light and air to any adjacent property.

(e)

The size, character, and location of any development permitted after granting of a variance shall be in harmony with the surrounding land use and shall promote orderly development in the zoning district in which it is located.

(f)

Any development allowed upon granting of a variance shall make vehicular and pedestrian traffic no more hazardous than is normal for the district in which it is located, taking into consideration vehicular turning movements, adequacy of sight lines for drivers, location and accessibility of off-street parking, provisions for pedestrian traffic, and measures to reduce contact between pedestrian and vehicular traffic.

(g)

Any development permitted upon granting of a variance shall be designed so as to eliminate any dust, noise, fumes, vibration, smoke, lights, or other undesirable impacts on surrounding properties.

(h)

The location, design, and height of a building, structure, fence, or landscaping permitted upon granting of a variance shall not interfere with or discourage the appropriate development, continued use, or value of adjacent land or buildings.

(i)

The development permitted upon granting of a variance shall relate harmoniously in a physical and economic sense with adjacent land uses. In evaluating this criterion, consideration shall be given to prevailing shopping patterns, convenience of access for patrons, continuity of development, and the need for particular services and facilities in specific areas of the City.

(Ord. of 10-12-18(1))

The ZBA is authorized to interpret boundaries of zoning districts as presented in the official zoning map. Upon request of the Planning Commission or any administrative or enforcement officer charged with enforcement of this ordinance, the ZBA may interpret and clarify the meaning or applicability of Zoning Ordinance text. Interpretations of zoning district boundaries, as shown upon the official Zoning Map accompanying and made part of this ordinance, shall be made in such a way as to carry out the intent and purpose of this ordinance and the City's Master Plan.

(Ord. of 10-12-18(1))

The ZBA is authorized to hear and decide requests for exceptions to the Ordinance as provided for within the Ordinance, and for other decisions specifically authorized by this ordinance. Any exceptions shall be subject to such conditions as the ZBA may require preserving and promoting the character of the zoning district in question and otherwise promoting the purpose of this ordinance:

(A)

Allow the erection and use of a building or use of premises for public utility purposes upon recommendation of the Planning Commission.

(B)

Allow the modification of the automobile parking space or loading space requirements where, in the particular instance, such modification will not be inconsistent with the purpose and intent of such requirements.

(C)

Allow such modification of the height and area regulations as specified in Section 901, or as may be necessary to secure an appropriate improvement of a lot that 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)

Allow modification of wall requirements when such modification will not adversely affect or be detrimental to surrounding or adjacent development.

(E)

Allow temporary buildings and uses for periods not to exceed 365 calendar days.

(F)

Allow, upon proper application, temporary uses that do not require any capital improvement of a structural nature, and are not otherwise permitted in any district. The ZBA may grant permission for the above temporary uses for a period not to exceed 365 calendar days, with the granting of one (1) 365 calendar day extension being permissible upon proper application, subject to all of the following conditions:

(G)

The granting of the temporary use shall not constitute a change in the basic uses permitted for the district nor for the property wherein the temporary use is permitted.

(H)

The granting of the temporary use shall be granted in writing stipulating all conditions as to time, nature of development permitted and arrangements for removing the use at the termination of said temporary permit.

(I)

All setbacks, land coverage, off-street parking, lighting and other requirements to be considered in protecting the public health, safety, peace, morals, comfort, convenience and general welfare of the inhabitants of the city shall be made at the discretion of the ZBA.

(J)

In classifying uses as not requiring capital improvement, the ZBA shall determine that any facilities associated with the use are demountable structures that do not require foundations, heating systems, or sanitary connections, or are related to permitted uses of the land. Recreational developments without permanent facilities (such as, but not limited to golf-driving ranges and outdoor archery courts) may be considered as temporary uses not requiring capital improvement.

(K)

The use shall be in harmony with the general character of the district.

The ZBA shall receive and review a recommendation from the Building Official or City Planner regarding the proposed use as it relates to current and long-range planning for the area in which the proposed temporary use is requested, and its impact upon the City's Master Plan.

(Ord. of 10-12-18(1))

(A)

Nothing herein contained shall be construed to give or grant to the ZBA the power or authority to alter or change the text or stated intent of any part of this ordinance.

(B)

The ZBA shall not have the power to alter or change the zoning district classification of any property, nor to make any change in the terms of this ordinance nor to permit any use in a district in which it is not permitted, such power and authority being reserved to City Council, in the manner provided by law.

(C)

The ZBA is strictly prohibited from hearing appeals of or granting variances from special land use determinations or conditions of approval as regulated under Article IV, Specific Land Use Provisions.

(D)

The ZBA is also strictly prohibited from hearing appeals of or granting variances from any determinations, standards or conditions established within a Planned Development, as regulated under Article V, PD Planned Development District.

The ZBA shall not have the power to grant variance or changes to requirements of any other body having appropriate regulatory jurisdiction under this ordinance, unless specifically authorized by a provision of this ordinance.

(Ord. of 10-12-18(1))

The ZBA shall have the power to subpoena and require the attendance of witnesses, administer oaths, compel testimony and the production of books, papers, files, and other evidence pertinent to the matters before it. With an affirmative decision, the ZBA may impose conditions pursuant to the Michigan Zoning Enabling Act. The decision of the ZBA shall be final. However, a person aggrieved by this ordinance may appeal to the Circuit Court for review pursuant to Section 606 of the Michigan Zoning Enabling Act.

(Ord. of 10-12-18(1))

The ZBA shall adopt its own rules of procedure and keep a record of its proceedings showing the vote of each member upon each question, or if absent or failing to vote, indicating said fact; and shall file a record of its proceedings in the office of the City Clerk, and shall be public record. The ZBA shall render all decisions without unreasonable delay.

(A)

Meetings and Hearings. All meetings of the ZBA shall be held at the call of the Chair, and as such times as the ZBA may determine. All hearings conducted by the ZBA shall be open to the public. The ZBA shall have the power to subpoena and require the attendance of witnesses, administer oaths, compel testimony and the production of books, papers, files, and other evidence pertinent to the matters before it.

The ZBA shall select a reasonable time and place for hearings, and shall give due notice thereof to the parties in accordance with Section 1101 of this ordinance and Section 401 of the Michigan Zoning Enabling Act. Any person may appear and testify at the hearing, either in person or by duly authorized agent or attorney.

(B)

Stay of Proceedings. An appeal to the ZBA shall stay all proceedings in furtherance of the appealed action, unless the Planning Commission or zoning official certifies to the ZBA, after the notice of appeal shall have been filed, that by reason of the facts stated in the appeal, a stay would cause imminent peril to life or property; in which case proceedings shall not be stayed other than by a restraining order granted by the Circuit Court.

(C)

Notice. The ZBA shall take no action authorized by this ordinance or the Michigan Zoning Enabling Act, except as related to a specific case and after a public hearing has been conducted. The ZBA shall, by general rule or in specific cases, determine the interested parties who may be affected by any matter brought before it, which shall in all cases include all owners of record of property (according to the most current City assessment records) within 300 feet of the premises in question. Such notice may be delivered either personally or by mail addressed to said respective owners as disclosed by the assessment roll, and to the tenant(s) at the address given for the property in the last assessment roll. If the tenant's name is not known, the term "occupant" may be used.

The ZBA may require any party applying to the ZBA for relief to give such notice to other interested parties as the ZBA shall prescribe. Such notice shall contain the address, if available, and location of the property for which the variation or other ruling by the ZBA is sought, as well as a brief description of the nature of the request.

(D)

Concurring Vote Required.

(1)

Appeals, Exceptions, Interpretations and Dimensional Variances. The concurring vote of a minimum of four (4) members of the ZBA shall be necessary to reverse an order, requirement, decision, or determination of an administrative official or body; to decide in favor of an applicant on any matter upon which the ZBA is required to act; and to grant a variance from any non-use or dimensional standard of this Zoning Ordinance.

(2)

Use Variances. The concurring vote of a minimum of four (4) members of the ZBA shall be necessary to grant a variance from the use provisions of this ordinance.

(Ord. of 10-12-18(1); Amd. of 11-1-2021(1))

(A)

Application for variances and appeals. A person filing an application to the ZBA shall use forms as specified by the ZBA All required fees shall accompany an application before any action shall commence to review the application. The application shall specify the grounds for the request, and shall contain a notarized signature of the property owner or owner's agent. Applications involving a request for a variance shall specify the applicable section(s) of the Ordinance involved in the request.

(B)

Sketch plan required. Each application shall be accompanied by a sketch plan for the site that includes the following information, as applicable:

(1)

Applicant's name, address, and telephone number.

(2)

Property identification (Sidwell) number, scale, north point, and dates of submission and revisions.

(3)

Zoning classification of petitioner's parcel and all abutting parcels.

(4)

Existing lot lines, building lines, structures, parking areas, driveways, and other improvements on the site and on properties within 50 feet of the site.

(5)

For variances requested from any dimensional standard of this ordinance, the sketch plan shall include verified measurements of existing conditions, and clearly state the proposed dimensions or conditions for which the variance is sought.

(6)

Where an application to the ZBA involves a variance sought in conjunction with a site plan review by the Planning Commission, the application date for site plan review shall also be provided.

(7)

Any additional information that may be required by the Building Official or Inspector or the ZBA to make the determination requested herein.

(Ord. of 10-12-18(1))

The ZBA shall prepare, build, and retain a formal record of each variance request or appeal consideration, and shall base its decision on this record. This formal record shall include all of the following:

(A)

Relevant administrative records and related administrative orders.

(B)

A copy of the public notice for the hearing associated with the request.

(C)

Such documents, exhibits, plans, photographs, or written reports as may be submitted to the ZBA for its consideration.

(D)

All written findings of fact, the decisions, orders, and any conditions imposed by the ZBA in acting on the appeal shall be entered into the official record, after being signed by the Chair of the ZBA, thereby effectuating the decision and any conditions imposed thereon.

(Ord. of 10-12-18(1))

In exercising the above powers, the ZBA may reverse or affirm wholly or partly, or may modify the orders, requirements, decisions, or determinations appealed under this ordinance and may make such order, requirement, decision, or determination as ought to be made, and to that end shall have all the powers of the Planning Commission, City Planner, Building Official or other zoning official from whom the appeal is taken.

(A)

No order of the ZBA allowing the erection of a building shall be valid for a period longer than 365 calendar days, unless a building permit for such erection or alteration is obtained within such period and such erection or alteration is started and proceeds to completion in accordance with the terms of such permit.

(B)

No order of the ZBA allowing a use of a building or premises shall be valid for a period longer than 365 calendar days unless such use is established within such period. Where such use permitted is dependent upon the erection or alteration of a building, such order shall continue in force and effect if a building permit for said erection or alteration is obtained within such period and such erection or alteration is started and proceeds to completion in accordance with the terms of such permit.

An order of the ZBA allowing a variance or exception that is not utilized within 365 calendar days of its issuance shall be considered null and void and an application must be re-filed if it is desired at a future date. A variance or exception that is legally utilized and maintained continues to runs with the property and any subsequent owners who legally continue the variance or exception under its original or amended terms.

(C)

The reason(s) utilized as a basis for making any decision shall be stated in the minutes of the ZBA.

(D)

The ZBA may require such conditions and the posting of necessary bonds or other financial guarantees acceptable to the city council to control compliance with specified conditions.

(E)

Copies of the decisions of the ZBA shall be furnished to the City Council and Planning Commission.

(Ord. of 10-12-18(1))

The decisions of the ZBA shall be final, but shall be subject to review by the Circuit Court consistent with Section 606 of the Michigan Zoning Enabling Act. The Circuit Court may order the ZBA to rehear a case in the event that the Court finds that the record of the ZBA is inadequate to make the proper review, or that there is additional evidence that is material and with good reason was not presented to the ZBA.

(Ord. of 10-12-18(1))