Charlevoix City Zoning Code
USE REQUIREMENTS
§ 153.115 SPECIFIC USE REQUIREMENTS.
(A) Certain uses, because of their unique locational needs or operational characteristics are subject to additional requirements beyond those of the zoning district in which they are located. Those added conditions or requirements are specified in this subchapter.
(B) Requirements listed for any use that is a special land use shall be considered additional standards of approval, along with the general standards of review in § 153.253 of this chapter for all special land uses.
(Prior Code, § 5.45)
§ 153.116 ACCESSORY BUILDINGS AND USES.
(A) Accessory buildings and structures.
(1) Authorized accessory buildings and structures may be erected as part of the principal building, may be connected to the principal building by a roofed breezeway or similar structure or may be completely detached from the principal building.
(2) Where an accesso ry building is attached to the principal building , it shall be considere d part of the principa l building for purposes of determining setback dimensions and building height. The accessory structure cannot be more than two feet closer to the front yard setback than the principal structure. If, however, the attached accessory building is connected to the principal building by a roofed porch, breezeway or similar covered structure, it shall not exceed 16 feet in height, shall not be closer than 20 feet to the rear lot line and shall meet the front and side yard setback requirements of that zone district
(3) In the R1 and R2 Residential Districts, if the principal building has an attached accessory building, only one detached accessory building shall be permitted, meeting divisions (A)(5)(a) and (b) of this section.
(4) Lots in the R1, R2, and R2A Zones shall be permitted to have a secondary detached accessory building, such as a storage shed. Secondary accessory buildings shall meet all the requirements of this section and not exceed 200 square feet in area.
(5) Building size and massing. Accessory buildings and structures shall meet the following requirements and Diagram A:
(a) No accessory building shall have a building footprint (length x width) (Diagram A: 1, 2) greater than 900 square feet, with no side to exceed 30 feet. An accessory building shall not be larger than the main structure (Diagram: A: 4).
(b) The minimum distance between principal buildings and detached accessory buildings shall be five feet (Diagram A:3), and meet all building code requirements.
Diagram A: Building Size and Massing
(6) Detached accessory buildings and structures shall meet the following minimum setbacks.
(a) Rear yard: six feet from a rear lot line. Accessory structures that store vehicles adjacent to alleys or sidewalks shall not be closer than 20 feet from the edge of the alley or sidewalk surface.
(b) Side yards: an accessory building shall conform to the side yard and street side yard setback requirement of the principal building.
(c) Front yard: an accessory structure shall not be located within any front yard.
(7) Design standards: The following standards shall apply to buildings larger than 200 square feet:
(a) Detached garages on corner lots shall face side streets. Detached garages on the corner side with driveways extending from the front street are prohibited. When an alley is available, access will come from the alley.
(b) The location and design maintain a compatible relationship to adjacent properties and does not significantly impact the privacy, light, air, or parking of adjacent properties.
(c) The structure shall be designed so that the appearance maintains that of the principal dwelling. In determining whether a structure is so designed, the structure shall meet the following requirements and Diagram C:
1. Buildings with a flat roof shall have a cornice expression line. A pitched (sloped) roof shall be compatible with the architecture of the principal building (1).
2. Transparency upper floor. Building façades facing streets shall have minimum 10% of the façade be glass between the finish floor line of the second story and bottom of the cornice expression line or bottom eave (2).
3. Transparency ground floor. Building façades facing streets shall have minimum 10% of the façade be glass between the adjacent grade and the finish floor line of the second story (3).
4. Window color and finish should complement the color and architectural style of the principal building (4).
5. Exterior finish should be constructed of similar materials as the principal building or traditional materials such as wood, wood lookalike, brick, or stone.
6. A permanent foundation is required.
7. Any exterior staircases that provide access to a second floor shall not be on the front of either the principal dwelling or the accessory building.
8. Windows that impact the privacy of the neighboring side or rear yards have been minimized or screened.
(d) Driveways, see § 153.189.
(e) Design standards do not apply to single family residences that may be built in the General Commercial (GC), Professional Office (PO) and Commercial Mixed Use (CM) Districts on lots fronting U.S. 31 (Bridge Street and Michigan Avenue) and M-66. (See § 153.170 Building Appearance).
(8) That all parts of the structure within the setbacks areas comply with applicable building and fire codes.
(9) Prohibited uses within detached accessory structures or accessory structures connected by a breezeway or similar structure in all districts except the R1 and R2 Zones:
(a) May not contain features that form a habitable dwelling unit or create a second dwelling unit;
(b) These structures may contain utility sinks, one bathroom, and refrigeration units. Full kitchen facilities that include a range or stove are prohibited; and
(c) Rooms within accessory structures may be used for additional sleeping quarters for the owner, or resident, and their immediate family provided that these rooms may not be rented out as short-or long-term rentals for any length of time.
(10) Stand-alone carports are prohibited in all zones. Carports attached to existing structures shall meet the requirements of this chapter. Tents, wall tents, garages in a box and similar enclosures are prohibited.
(11) Permanent greenhouses shall be considered an accessory structure and meet the requirements of this section.
(B) Accessory Dwelling Units (ADUs).
(1) All of the requirements of division (A), above apply in addition to the ADU-specific requirements of this section with the exception of § 153.116(A)(9)(a), (b), and (c).
(2) ADUs shall be permitted as a single use or combined with another accessory use.
(3) ADUs shall be permitted as a second-story use above a first-floor accessory use.
(4) Examples of ADUs. The following images are intended as examples only and should be used for inspiration in the creation of ADU projects.
(5) Ground floor pedestrian access and activation. Accessory dwelling unit building type ground floor entrances shall meet the following requirement of Diagram B.
(a) Entrance for upper unit is required to be accessed from the alley, side street, or internal to the lot.
(b) Entrance for upper unit shall not be through a garage.
(c) Parking may be accessed from the alley, side street, or primary street per the requirements for off-street parking access in the zoning district.
(d) Parking may be accessed from the front street only when there is no adjacent alley or side street.
Diagram B Ground Floor Access
(6) Building type floor height requirements. Building type floor heights shall meet the following requirements and Diagram D.
(a) Ground floor: Floor to ceiling height shall be eight feet minimum.
(b) Upper floors: floor to ceiling height shall be required by Building Code.
(c) Overall height of building type is regulated by zoning district; refer to § 153.072.
Diagram D Building Height Story Height
(7) The maximum lot coverage for parcels with an ADU may be increased to a maximum of 50% when stormwater runoff equivalent to 20% of the lot coverage area is collected in rain barrels, rain gardens, or is mitigated via porous concrete or other materials on the parcel and shown that any additional stormwater does not leave the property. See § 153.152.
(C) Additional requirements for swimming pools and hot tubs.
(1) Any pool over 24 inches deep with a surface area of more than 250 square feet shall comply with the requirements of this division (B) and shall not be constructed, installed, enlarged or altered until a building permit has been obtained.
(2) The outside edge of the pool wall and/or the deck and any other appurtenances shall not be located closer than ten feet from any rear or side property line, nor less than ten feet from the principal building. Swimming pools shall not be located in the front yard.
(3) (a) Each pool shall be enclosed by a minimum four-foot high fence, wall, or other structure or device, sufficient to make the pool inaccessible to small children. This enclosure, including gates, shall not be less than four feet above the underlying ground; all gates must be self-latching with latches placed at least four feet above the underlying ground or otherwise made reasonably inaccessible from the outside to small children. The fence may be located around the perimeter of a deck surrounding an above ground pool; provided that, the total height of the deck and the fence does not exceed ten feet. Above ground pools may have gates, removable or swing-up steps or other means to limit entry in lieu of a fence.
(b) Except for hot tubs and spas, a swimming pool cover shall not be allowed in lieu of a fence.
(4) All swimming pool and hot tub installations shall comply with the state’s Construction Code and all standard codes referred to therein. All electrical installations or wiring in connection with swimming pools shall conform to the provisions of the National Electrical Code. If service drop conductors or other utility wires cross under or over a proposed pool area, the applicant shall make satisfactory arrangements with the utility involved for the relocation thereof before a permit shall be issued for the construction of a swimming pool. A no-fault ground unit shall be provided to protect against electrical shock.
(D) Bed and breakfast establishments.
(1) The bed and breakfast shall be located within a residence which is the principal dwelling unit on the property. Whenever the bed and breakfast is open for the renting of rooms, the residence shall be occupied by the owner or innkeeper at all times.
(2) The rental rooms within the establishment shall be part of the principal dwelling. Bed and breakfast establishments shall not contain more than five rental rooms, however the Planning Commission may approve additional rooms based on the following criteria:
(a) The existing single-family home has the capacity for more than five rental rooms;
(b) It is a single-family home which has been operated as a bed and breakfast establishment in the past;
(c) The Planning Commission finds that the additional rooms will not have an adverse impact to the residential character of the neighborhood.
(3) The residence shall have at least two exits to the outdoors.
(5) A bed and breakfast establishment shall be consistent with the essential character of the residential neighborhood in terms of use, traffic generation and appearance.
(6) A bed and breakfast establishment shall not be permitted on a lot or parcel, (including a non-conforming lot or parcel of record) which does not meet the established lot size requirements for the zoning district in which it is located.
(E) Boathouses and upland dredging. Special land use approval for a boathouse and upland dredging without a boathouse in the R1 Zone shall be subject to the following requirements.
(1) Boathouses and upland dredging shall not be permitted on Lake Michigan or Lake Charlevoix;
(2) Boathouses shall have a gabled roof with a minimum roof pitch of 8:12 for new construction. Repair of existing structures may utilize the existing roof pitch and roof design at the time of application. Multiple peaks and a variety of rooflines or other architectural features consistent with the character of the neighborhood are encouraged. Eaves extending out greater than 24 inches shall be considered part of the building footprint;
(3) Boathouses are permitted over the water, but may not extend greater than 80 feet lake ward from the existing sea wall location, or ordinary high water mark if no sea wall is present;
(4) Where inland dredging is required, boathouses may not extend greater than 50 feet inland from the existing sea wall location or ordinary high water mark if no sea wall is present;
(5) Boathouses and upland dredging shall be located at least ten feet from side lot lines; no rear yard setback required;
(6) Boathouses shall not exceed a building footprint (length x width) of 2,000 square feet in area, exclusive of eaves;
(7) Boathouses and upland dredging shall not contain sleeping quarters, kitchens or bathrooms;
(8) In the R1 Zone, boathouses and upland dredging shall not exceed a height of 16 feet with the base elevation starting at the ordinary high water mark.
(9) Existing sea wall locations shall be considered the rear lot line for the purposes of calculating lot area and coverage requirements.
(10) Sea walls may not be extended lake ward, nor shall any filling take place for the purposes of increasing lot size or relocating the rear lot line.
(11) Upland dredging that would result in permanent alteration of the shoreline requires a public hearing for a special use permit before the property owner applies for all applicable permits from relevant local, state and federal governments and agencies.
(12) Boathouses in the Belvedere Club and Chicago Club are excluded from the height requirements for accessory structures; provided that, they may be extended in the same building line elevation and size as the existing boathouses.
(F) Day care; group day care home. Special land use approval for a group day care home shall be subject to the following.
(1) A group day care home shall not be located within a 500-foot radius of any of the following:
(a) A facility offering substance abuse treatment and rehabilitation service to seven or more people licensed under Art. 6 of the Public Health Code, Public Act 368 of 1978, being M.C.L.A. §§ 333.6101 to 333.6523; or
(b) A community correction center, resident home, halfway house or other similar facility which houses an inmate population under the jurisdiction of the department of corrections.
(2) The outdoor recreation area shall be fenced and screened from any abutting residential district or use by a decorative fence or wall, or a landscaped equivalent.
(3) The applicant shall provide evidence of the ability to comply with all applicable state licensing requirements.
(G) Drive-through facility (except those serving a restaurant).
(1) Sufficient stacking capacity for the drive-through portion of the operation shall be provided to ensure that traffic does not extend into the public right-of-way, nor does it interfere with internal circulation of vehicles. A minimum of two stacking spaces for each drive-through station shall be provided.
(2) The parking and maneuvering areas of the site shall be fenced and screened from the view of any abutting residential district or use by a decorative fence or wall, a landscaped equivalent or a combination of both.
(3) Outdoor speakers for the drive-through facility shall be located in a way that minimizes sound transmission toward adjacent property. Amplified sound shall not be audible at the property line of any adjacent residential property.
(4) Access lanes shall be designed so service and stacking do not interfere with parking spaces or maneuvering on the site.
(H) Home occupations.
(I) Outdoor display and sales (accessory). Outdoor Display and Sales are allowed in CBD Overlay only during district-wide sidewalk sale events. Outdoor display and sales that are accessory to a permitted or special land use shall be subject to the following requirements:
(1) Required setbacks.
(a) Outdoor display or sales located within a roofed enclosure shall be considered to be within an accessory building and subject to all applicable requirements of division (A) above.
(b) If the enclosure is attached in any way to the principal building, it shall be considered part of the principal building and subject to all requirements for the principal building.
(c) If the enclosure is not attached to the principal building, but is located within a yard adjacent to a residential district, it shall meet the minimum setback requirements for a principal building.
(d) Open sales, display or storage areas shall meet the minimum setback requirements for a principal building.
(2) Outdoor storage. Outdoor storage is not permitted in any parking area. Sales or display of merchandise may be permitted within a parking area; provided:
(a) The items displayed or sold are seasonal in nature and the display area is for a limited duration;
(b) The outdoor sales and displays shall not reduce the available parking spaces below the minimum required by this chapter; and
(c) Sales and display areas shall not interfere with safe and efficient traffic and pedestrian movements on the site.
(3) Outdoor sales. Outdoor sales and display areas adjacent to a building shall be situated so safe and convenient ingress/egress and emergency access to the building are maintained.
(4) Outdoor display and sales. Outdoor display and sales areas located within any yard adjacent to a residential district (except for a yard separated from the residential district by a street right-of-way) shall be screened with a solid fence or decorative wall with a maximum height of six feet.
(J) Solar panels.
(1) General requirements.
(a) If it is intended that a solar energy collector system be hooked to the electrical grid, then any single lot or parcel shall be limited to 20 kilowatts (kW) of total aggregated nameplate capacity.
(b) The exterior surfaces of a solar energy collector shall be generally neutral in color and substantially non-reflective of light. A unit may not be installed or located so sunlight or glare is reflected into neighboring residences or onto adjacent streets.
(c) A solar energy collector shall be permanently and safely attached to the building or structure. Proof of the safety and reliability of the means of attachment shall be submitted to the county’s Department of Building Safety prior to installation.
(d) Solar energy collectors, and the installation and use thereof, shall comply with the county’s Construction Code, the Electrical Code and other applicable city, county, state and federal requirements.
(f) A building-mounted unit may only be attached to the principal building, or to an accessory building serving the principal use, such as a barn, garage or shed.
(2) Ground-mounted units. A ground-mounted solar energy collector shall be subject to the requirements for detached accessory structures, as required in division (A) above. No individual ground-mounted unit shall exceed 500 square feet in area or be greater than 15 feet in height.
(3) Roof-mounted units.
(a) A roof-mounted unit shall not project above the peak or beyond the eaves, gables or other edge of the roof on which it is mounted.
(b) Installation:
1. On a roof surface visible from the street, a roof-mounted unit shall not extend more than 18 inches above the roof surface. The panel(s) shall be mounted at the same angle as the roof upon which the unit is mounted.
2. On a roof surface that is not visible from the street, a roof-mounted unit shall not extend more than six feet above the roof surface. The unit need not be mounted at the same angle as the roof. No portion of the unit may be visible from the street.
3. A roof-mounted unit shall be only of such weight as can safely be supported by the structure. Proof, in the form of certification by a professional engineer or other qualified professional, shall be submitted to the county’s Department of Building Safety prior to installation.
(4) Wall-mounted units.
(a) A wall-mounted solar energy collector shall not obstruct drives or other traffic ways and shall not extend further than eight feet from the building wall. No portion of the unit may extend above the building wall to which it is attached.
(b) A wall-mounted unit may not extend into a required yard.
(c) Surface area:
1. On any wall visible from a street, the surface area of the wall-mounted unit shall not exceed 30% of the area of the wall onto which it is mounted and shall not obscure any window or door.
2. On any other wall, the surface area of the unit shall not exceed 50% of the area of the facade. The unit may be located in front of windows or other openings.
3. For the purpose of this section, the area of the facade wall shall include all of the area bounded by the height and width of the wall, including any windows, doors or other openings.
(K) Wind energy conversion systems, single accessory. This division (K) establishes standards and procedures by which the installation and operation of a single accessory wind energy conversion systems (WECS) shall be governed within the city.
(1) Prohibited use. Only single accessory WECS shall be allowed. A WECS with the primary purpose of providing power to the utility grid or any other use not on the same site is prohibited.
(2) Review requirements.
(b) In addition to any submittal requirements for special land uses in §§ 153.250 through 153.257 of this chapter or site plan review submittal requirements in §§ 153.230 through 153.243 of this chapter, the application and site plan for a single accessory WECS shall include the following information:
1. Name of applicant, name of site plan preparer (if different), name of WECS manufacturer and name of WECS installer, with contact information;
2. A scaled drawing of the property, showing dimensions of all property lines and the area of the lot in square feet;
3. Location and setback of all structures on the site, including any overhead utility lines;
4. Proposed location of the WECS equipment on the site or on the building;
5. Setbacks of the WECS, in accordance with the setback requirements of this division (K), from property lines and (if ground-mounted) from structures;
6. A scaled elevation drawing of the WECS installation (including the building, if the WECS is building-mounted) showing the WECS height, rotor diameter and all other applicable elements to confirm conformance with the requirements of this division (K); and
7. Certification that the WECS system and mount meets any current standards developed by one of the following: the IEC (International Electrotechnical Commission), ANSI (American National Standards Institute) or SWCC (Small Wind Certification Commission).
(3) Single accessory WECS general requirements.
(a) A property may have either ground-mounted or building-mounted WECS, but not both.
(b) Minimum lot area: A building-mounted WECS shall be allowed on any lot, except in the SR district, provided that all other requirements are met. The minimum lot area for installation of a ground-mounted WECS shall be 10,000 square feet.
(c) Power rating of the WECS turbine shall not be greater than 25 kilowatts (kW). If it is intended that the WECS be tied into the grid, the total aggregated nameplate capacity of all turbines shall not exceed 20 kilowatts (kW).
(d) The WECS shall provide energy only to the structures and uses on the same property upon which the tower is located and must be owned or leased by the owner of the same property; however, this does not prevent the distribution to the local utility company, through metering required by the utility, of any power that is generated beyond the needs of the structures or uses on the property.
(e) No sound attributed to the WECS in excess of 55 dBA (A-weighted decibels) shall be discernible at the property line.
(g) There shall be no lighting on or directed at the WECS, except as may be required by the Federal Aviation Administration.
(h) The WECS shall be painted in a matte color, such as gray or light blue, intended to blend into the background. A building-mounted WECS may be painted in similar colors to those on the building.
(i) A WECS shall have an automatic braking, governing or feathering system to prevent uncontrolled rotation or over-speeding. Emergency shut-off information shall be posted on the tower in an easily visible location, or for a building-mounted WECS, shall be in a location easily accessible and visible.
(j) A WECS shall employ an anti-climbing device or be designed to prevent climbing and other unauthorized access.
(k) A WECS shall not be installed in any location where its proximity to existing fixed broadcast, re-transmission or reception antenna for radio, television or wireless phone or personal communication systems would produce electromagnetic interference with signal transmission or reception.
(l) The applicant shall provide written evidence that the WECS complies with all applicable federal, state and county requirements, in addition to city ordinances.
(m) All WECS installations shall comply with applicable Electric and Building Code standards, as adopted by the state and the county’s Department of Building Safety.
(n) A WECS shall be removed when the device or equipment is no longer operating or when it has been abandoned. A WECS shall be deemed abandoned when it has not produced electrical energy for 12 consecutive months.
(o) 1. An existing and approved WECS may be repaired and maintained; however, a WECS may only be replaced with a new WECS upon approval of the Zoning Administrator; provided that, the new WECS is of the same height, rotor diameter, setback and the like as the WECS it replaces.
2. For the purposes of this division (K)(3)(o), a NEW OR REPLACEMENT WECS shall mean all of the WECS, excluding the tower or support structure.
(4) Ground-mounted single accessory WECS.
(a) There shall be no more than one ground-mounted on-site service WECS per parcel or lot.
(b) A ground-mounted WECS shall not be located within a front yard.
(c) 1. The WECS shall be located on the property so that it is set back from all property lines a distance equal to the WECS height.
2. The setback shall be measured from the property line (considered as a plane extending from the ground to the highest point of the WECS) to the closest extension of the rotor relative to the property line.
(d) The WECS height shall be limited by available setbacks as required in division (K)(4)(c) above; however, no WECS shall exceed 50 feet high.
(e) The minimum rotor blade tip clearance from grade, any structure or utility line shall be 15 feet.
(f) The diameter of the rotor shall be dependent upon maximum WECS height and rotor blade tip clearance, but in no case shall it exceed 50 feet.
(5) Building-mounted single accessory WECS.
(a) There may be more than one building-mounted single accessory WECS on a single property; however, each individual WECS shall meet all of the requirements in this division (K)(5), and each WECS shall be separated from any other WECS no less than ten feet, measured between the maximum extension of the rotors.
(b) 1. The WECS shall be mounted so that it is set back from adjoining property lines a distance equal to the combined height of the WECS and the height of the portion of the building on which it is mounted.
2. The setback shall be measured from the property line (considered as a plane extending from the ground to the highest point of the WECS) to the closest extension of the rotor relative to the property line.
(c) The WECS height shall be limited by available setbacks as required in division (K)(5)(b) above; however, no building-mounted WECS shall exceed the maximum permitted height for principal buildings in the district, plus 20 feet.
(d) The diameter of the rotor shall not exceed 25 feet.
(e) The mount and the structure used to support a building-mounted WECS shall meet applicable standards, as certified by an engineer.
(6) Conditions of approval.
(b) Such conditions may include, but are not limited to, the following:
1. The preservation of existing trees and other existing vegetation not required to be removed for installation of a WECS;
2. The reasonable replacement of trees or other vegetation removed or destroyed during the construction or installation of a WECS;
3. Altering the location of the WECS to prevent impacts on neighboring properties, provided that all other requirements of this section are met; and
4. Requiring a performance bond or letter of credit, in favor of the city, and conditioned upon the timely and faithful performance of all required conditions of the special land use, including, but not limited to, the timely and complete removal of a WECS, regulated under the terms of § 153.239 of this chapter, when required. Such performance bond or letter of credit shall remain in effect during and after the operation of a WECS until its operations have ceased and it has been removed.
(Prior Code, § 5.46) (Ord. 791, passed 3-19-2018; Ord. 795, passed 11-5-2018; Ord. 801, passed 4-15-2019; Ord. 823, passed 1-4-2021; Ord. 835, passed 1-2-2023; Ord. 839, passed 6-19-2023; Ord. 840, passed 6-19-2023; Ord. 848, passed 4-1-2024)
§ 153.117 RESIDENTIAL USES.
(A) Dwellings, single-family attached or detached (outside manufactured home communities). All dwelling units located outside a licensed manufactured home community shall comply with the following.
(1) A dwelling unit shall conform to the minimum floor area requirements of the district in which it is located.
(2) The minimum width of a single-family dwelling unit shall be 20 feet.
(3) All dwelling units shall comply with the state's Construction Code as promulgated by the state's Construction Code Commission under provisions of Public Act 30 of 1972, as amended, being M.C.L.A. §§ 125.1501 et seq., or the Mobile Home Construction and Safety Standards, as promulgated by the United States Department of Housing and Urban Development, being 24 C.F.R. part 3280, and as from time to time such standards may be amended.
(4) A dwelling unit shall be attached to a permanent foundation constructed in accordance with the state's Construction Code and shall have the same perimeter dimensions as the dwelling. In the case of a manufactured home, it shall be installed per the manufacturer's set-up instructions and shall be secured to a foundation by an anchoring system or device complying with the rules and regulations of the state's Manufactured Housing Commission or the state's Construction Code, whichever is stricter.
(5) If provided, the wheels of a manufactured home shall be removed and the towing mechanism, undercarriage and chassis shall not be exposed.
(6) All dwellings shall be connected to city sanitary sewer and water utilities.
(7) A recreational vehicle, vehicle chassis, or tent is not considered a dwelling and is not to be used as a dwelling, temporary or long term.
(8) A dwelling may have either a roof overhang of not less than six inches on all sides or, alternatively, a roof drainage system that concentrates water at collection points and discharges it away from the dwelling.
(B) Site condominiums. This chapter requires preliminary review of site condominium plans by the Planning Commission to ensure that site condominiums comply with this chapter and other applicable city ordinances.
(1) Optional Planning Commission review of preliminary plans.
(a) Prior to final review and approval of a site condominium development plan, a preliminary site condominium development plan may be reviewed by the Planning Commission in accordance with the procedures, standards and requirements provided by this section if requested by the applicant. Such review shall take place following a public hearing by the Planning Commission on the preliminary plan. At least 15-days' notice of the hearing shall be given by ordinary mail, sent to the owners of, or parties with interest in, the lands within 300 feet of the property to be included in the development, as listed in the current city tax assessment rolls.
(b) Application for review and approval of a site condominium development plan shall be initiated by submitting the following to the Zoning Administrator:
1. A minimum of ten copies of a preliminary site condominium development plan which complies with the requirements of Chapter 154 of this code of ordinances; and
2. An application fee in accordance with the fee schedule established by resolution of the City Council.
(c) The Planning Commission shall review the preliminary site condominium development plan in accordance with the standards and requirements contained in § 154.06 of this code of ordinances. All of the requirements for plats, as set forth in that section, shall apply to site condominium developments. In addition, the following standards and requirements shall apply.
1. In its review of a site condominium development plan, the Planning Commission may consult with the Zoning Administrator, City Attorney, City Engineer, City Fire Chief or other appropriate persons regarding the adequacy of the proposed common elements and maintenance provisions, use and occupancy restrictions, utility systems and streets, development layout and design, or other aspects of the proposed development.
2. Each site condominium unit shall comply with all applicable provisions of this chapter, including minimum area, minimum width, required front, side and rear yards, and maximum building height.
3. All streets shall be paved and developed to the minimum design, construction, inspection, approval and maintenance requirements for platted public streets, as required by the city.
4. If public water and sanitary sewer facilities are not available, each condominium unit shall be served by a private central system (designed for connection to a public system when and if a public system is made available).
5. The Planning Commission may require that portions of the plan, as relevant to the reviewing authority in question, be submitted to the county’s Drain Commissioner, the state’s Department of Natural Resources, the state’s Department of Public Health and other appropriate city, state and county review and enforcement agencies having direct approval or permitting authority over any aspect of the proposed site condominium development.
(d) After reviewing the preliminary site condominium development plan, the Planning Commission shall prepare a written statement of recommendations regarding the proposed site condominium development, including any suggested or required changes in the plan. The Planning Commission shall provide a copy of its written recommendations to the applicant.
(2) Review and approval of final plans.
(a) The final site condominium plan shall incorporate all of the recommendations, if any, made by the Planning Commission based on its prior review of the preliminary plan. If any of the Planning Commission's recommendations are not incorporated in the final plan, the applicant shall clearly specify, in writing, which recommendations have not been incorporated and the reasons why. Except for changes made to the plan as needed to incorporate the recommendations of the Planning Commission, the final plan shall otherwise be identical to the preliminary plan acted upon by the Planning Commission. Changes made to the plan other than those necessary to incorporate the recommendations of the Planning Commission shall be resubmitted to the Planning Commission for further review and recommendation prior to approval of the plan.
(b) After receiving the final site condominium development plan, the Planning Commission shall proceed to review and may approve, deny, or approve with conditions the plan in accordance with the standards and requirements provided the city parcel division ordinance and other applicable procedures, standards and requirements of this section.
(c) As a condition of approval of a final site condominium development plan the City Manager, with input from staff, may require that a financial guarantee, covering the estimated cost of improvements associated with the site condominium development for which approval is sought, be deposited with the city, as provided by the Michigan Zoning Enabling Act, Public Act 110 of the Public Acts of 2006, being M.C.L.A. §§ 125.3101 to 125.3702, as it may be amended from time to time.
(3) Contents of site condominium project plans. A condominium development plan shall include the documents and information required by § 66 of the Condominium Act, by § 154.05(A) of this code of ordinances and by the following:
(a) The use and occupancy restrictions and maintenance provisions for all general and limited common elements that will be included in the master deed;
(b) A storm drainage and storm water management plan, including all lines, swales, drains, basins and other facilities and easements granted to the appropriate jurisdiction for installation, repair and maintenance of all drainage facilities;
(c) A utility plan showing all water and sewer lines and easements granted to the appropriate jurisdiction for installation, repair and maintenance of all utilities;
(d) A narrative describing the overall objectives of the proposed site condominium development;
(e) A narrative describing the proposed method of providing potable water supply, waste disposal facilities and public and private utilities; and
(f) A street construction, paving and maintenance plan for all private streets.
(4) Construction in compliance with approved plan. No buildings or structures shall be constructed, nor shall any other site improvements or changes be made on the property in connection with a proposed site condominium development, except in compliance with a final site condominium development plan, as approved by the Planning Commission, including any conditions of approval.
(5) Issuance of permits. No building permit shall be issued, and no public sewer or public water service shall be provided for any dwelling or other structure located on a parcel established or sold in violation of this section. The sale or the reservation for sale of site condominium units shall be as regulated by the Condominium Act. No building in a site condominium development may be occupied or used until all required improvements have been completed and all necessary utilities installed.
(6) Expandable or convertible condominium developments. Approval of a final site condominium development plan shall not constitute approval of expandable or convertible portions of a site condominium development, unless the expandable or convertible areas were specifically reviewed and approved by the Planning Commission in compliance with the procedures, standards and requirements of this section.
(7) Changes in condominium developments. Any change proposed in connection with a development for which a final site condominium plan has previously been approved shall be regulated as follows:
(a) The following definitions shall apply:
1. EXEMPT CHANGE means a change to a site condominium project (other than a major or minor change) that is exempt from review and approval, as required for major or minor changes under this section. EXEMPT CHANGES shall be limited to the following:
a. A change in the name of the development, in the name of a street within the development or in the name of the developer;
b. A change in the voting rights of co-owners or mortgagees; or
c. Any other change in the site condominium development which, as determined by the Zoning Administrator, does not constitute a major or minor change or will not otherwise change the site configuration, design, layout, topography or any other aspect of a development which is subject to regulation under the zoning ordinance.
2. MAJOR CHANGE means a change in the site configuration, design, layout or topography of a site condominium development (or any portion thereof), including any change that could result in:
a. An increase in the number of site condominium units; or
b. Any other change in the site configuration, design, layout, topography or other aspect of the project which is subject to regulation under this chapter, including, without limitation, a change in the location of streets and utilities, or in the size, location, area, horizontal boundaries or vertical boundaries of a site condominium unit, or that which is determined by the Zoning Administrator to constitute a major change to the site condominium project.
3. MINOR CHANGE means a change in the site configuration, design, layout or topography of a site condominium development (or any portion thereof), that will result in:
a. A decrease in the number of site condominium units;
b. A reduction in the area of the building site for any site condominium unit;
c. A reduction of less than 10% in the total combined area of the general common elements of the site condominium;
d. A reduction in the total combined area of all limited common elements of the site condominium; or
e. Any other minor variation in the site configuration, design, layout, topography or other aspect of the development which is subject to regulation under this chapter, and which, as determined by the Zoning Administrator, does not constitute a major change.
(b) Any change which constitutes a major change shall be reviewed by the Planning Commission, at a public hearing and with the notice required for an original approval of a site condominium development, as provided in this chapter for the original review and approval of preliminary and final plans.
(c) Any change which constitutes a minor change shall be reviewed and approved by the Zoning Administrator.
(d) Any change which constitutes an exempt change shall not be subject to review by the city, but a copy of the exempt changes shall be filed with the Zoning Administrator.
(8) Incorporation of approved provisions in master deed. All provisions of a final site condominium development plan which are approved by the Planning Commission, as provided by this section, shall be incorporated by reference in the master deed for the site condominium project. Further, all major changes to a development shall be incorporated by reference in the master deed. A copy of the master deed, as recorded with the County Register of Deeds, shall be provided to the city within ten days after recording.
(9) Commencement of construction. Construction of an approved site condominium development shall commence within two years after final site condominium development approval and be diligently pursued to completion in accordance with the terms and conditions of the approval. The two-year period may be extended by the Planning Commission, at its discretion, for additional time periods as determined appropriate by the planning commission. Any extension shall be applied for, in writing, by the applicant prior to the expiration of the initial two-year period.
(10) Variances. Upon application, the Zoning Board of Appeals may permit a variance or variances which are reasonable and within the general policies and purposes of this section. A variance may be granted if the applicant demonstrates that literal enforcement of any of the provisions of this section is impractical or will impose practical difficulties in the use of the land because of special or peculiar conditions pertaining to the land. The ZBA may recommend, and may attach, conditions to the variance.
(C) Accessory dwelling unit (ADU).
(1) ADUs are subject to all applicable regulations of the zoning district in which they are located unless otherwise expressly stated in this section. ADUs are considered an accessory building and shall fit within the standards of § 153.116(A) and (B) which covers both attached and detached ADUs. All ADUs are required to obtain a zoning permit prior to construction.
(2) In districts that allow ADUs, they may be allowed on any legal parcel of record as of January 1, 2019, and there shall be an existing principal residential use on the parcel.
(3) At least one of the units on the parcel shall be occupied by a long-term renter or an owner with at least 50% interest in the subject property. The owner or renter shall occupy either the principal dwelling unit or the ADU as their permanent residence. An ADU shall not be sold independently of the primary dwelling on the parcel.
(4) Dimensional requirement modifications. Under some circumstances, certain dimensional requirements modifications may be granted by a special land use permit after a site plan review by the Planning Commission. Application for modifications may be applied for new construction or pre-existing structures built prior to 2019 that are located within the required setbacks of the district. In order to grant a special land use permit for any modifications, all of the following must be met:
(a) That any walls within the setback areas comply with applicable building and fire codes.
(b) That a setback requirement of a minimum of five feet from the side and rear property lines shall be required.
(c) The location and design of the ADU maintains a compatible relationship to adjacent properties and does not significantly impact the privacy, light, air, or parking of adjacent properties.
(d) Windows on the ADU that impact the privacy of the neighboring side or rear yards have been minimized or screened.
(D) Boarding/rooming house. There shall be not more than four rooms occupied by tenants, subject to the following:
(1) Parking meets the requirements of § 153.187.
(2) Occupancy by tenants shall be for expected durations longer than 30 days.
(3) Individual rooms shall not contain independent cooking facilities. This requirement shall not prohibit the serving of meals to tenants or the use of a single kitchen by tenants.
(4) Rooming and boarding houses shall be owner occupied and serve as the principal residence of the owner or a designated caretaker shall be one of the occupants.
(E) Single-family attached and single multiple-family buildings.
(1) Single-family attached buildings, home conversions and single multiple-family buildings are subject to all applicable regulations of the zoning district in which they are located unless otherwise expressly stated in this section.
(2) The main entrance is located in the building façade of the principal frontage.
(3) A maximum of two entrances per building façade.
(4) Parking is located in the rear or on the side of the building and meets the requirements of § 153.187.
(5) Parking access is from the alley where available, otherwise access may be from the side or front lot line.
(6) The principal building façade shall have a minimum of 20% glazing (windows). There shall be a minimum of two six-square-foot windows per non-street facing building façade.
(7) Roofline/pitch, siding, other architectural elements maintain single family character.
(8) Access to any second-floor dwelling unit is provided from the interior of the structure.
(9) All units will have construction code-approved egress.
(F) Short-term rentals. Short-term rentals shall be regulated as provided in Chapter 114 of this code.
(Prior Code, § 5.47) (Ord. 794, passed 9-17-2018; Ord. 795, passed 11-5-2018; Ord. 802, passed 4-15-2019; Ord. 805, passed 9-3-2019; Ord. 835, passed 1-2-2023; Ord. 842, passed 12-18-2023; Ord. 848, passed 4-1-2024)
§ 153.118 LODGING, DINING AND ENTERTAINMENT USES.
(A) Sexually oriented businesses.
(1) Intent. In the development and execution of these zoning regulations, it is recognized that some uses, because of their very nature, may have serious objectionable operational characteristics, particularly when several of those uses are concentrated under certain circumstances, thereby causing a detrimental effect upon the adjacent areas. The proximity of adult-regulated uses to certain other uses considered particularly susceptible to the negative impacts of a concentration of adult-regulated uses has been shown to erode the quality of life, adversely affect property values, disrupt business investment, encourage residents and businesses to move or avoid the community, increase crime and contribute to a blighting effect on the surrounding area. There is convincing documented evidence of the negative effect that adult-regulated uses have on both existing businesses around them and the surrounding residential areas to which they are adjacent. Therefore, the following intents are served by these regulations.
(a) This division (A) describes the uses regulated and the specific standards necessary to ensure that the adverse effects of these uses will not contribute to the deterioration of the surrounding neighborhood, to prevent undesirable concentration of these uses, and to require sufficient spacing from uses considered most susceptible to negative impacts.
(b) These provisions are not intended to impose, nor shall they have the effect of imposing a limitation or restriction on the content of any communicative materials including, but not limited to, sexually oriented materials that are protected by the First Amendment to the United States Constitution.
(c) Additionally, it is not the intent of the provisions of this division (A) to restrict or deny, nor shall it have the effect of restricting or denying, access by adults to sexually oriented materials that are protected by the federal and state constitutions.
(d) Further, it is not the intent of these provisions to deny, nor shall they have the effect of denying, access by the distributors and exhibitors of adult oriented entertainment to their target market.
(e) These regulations shall not be interpreted as intending to legitimize any activities that are prohibited by federal or state law, or by any other ordinance of the city.
(2) Definitions. For the purpose of this division (A), the following definitions shall apply unless the context clearly indicates or requires a different meaning.
SEXUALLY ORIENTED BUSINESS. Any use of land devoted to displaying or exhibiting printed, recorded or electronic material or live entertainment, a significant portion of which depicts, describes or presents specified sexual activities or specified anatomical areas including, but not limited to: adult arcade; adult bookstore; adult novelty store; adult video store; adult cabaret; adult motel; adult motion picture theater; adult theater; escort agency; nude modeling studio; sexual encounter center; or massage parlor. The term “significant”, as used above and as follows, is defined as greater than 20% of the total material displayed or exhibited for sale or entertainment. Adult-regulated uses, activities and related definitions include, but are not limited to the following.
1. ADULT ARCADE. Any place to which the public is permitted or invited wherein coin-operated, slug-operated or for any form of consideration an electronically, electrically or mechanically controlled still or motion picture machine, projector, video or disc player, or other image-producing device is maintained to show images to five or fewer persons per machine at any one time, and where the image is so displayed, distinguished or characterized by the depicting or describing of specified sexual activities or specified anatomical areas.
2. ADULT BOOKSTORE, ADULT NOVELTY STORE or ADULT VIDEO STORE. A commercial establishment which, as one of its principal purposes, offers for sale or rental for any form of consideration, any one or more of the following:
a. Books, magazines, periodicals or other printed matter or photographs, films, motion pictures, video cassettes, discs or other video reproduction, slides or other visual representations which are distinguished or characterized by the depiction or description of specified sexual activities or specified anatomical areas; or
b. Instruments, devices or paraphernalia which are designed for use in connection with specified sexual activities.
3. ADULT CABARET. A nightclub, bar, restaurant or similar commercial establishment which regularly features:
a. Persons who appear live in a state of nudity or semi-nudity;
b. Live performances which are characterized by the exposure of specified anatomical areas or by specified sexual activities; or
c. Films, motion pictures, video cassettes or discs, slides or other video or photographic reproductions which are distinguished or characterized by the depiction of specified sexual activities or specified anatomical areas.
4. ADULT MOTEL. A hotel, motel or similar commercial establishment which:
a. Offers accommodations to the public for any form of consideration; provides patrons with closed-circuit television transmissions, films, motion pictures, video cassettes, slides or other photographic reproductions which are characterized by the depiction or description of “specified sexual activities” or “specified anatomical areas;” and has a sign visible from the public right-of-way;
b. Regularly offers a sleeping room for rent for a period of time that is less than ten hours; or
c. Regularly allows a tenant or occupant of a sleeping room to sub-rent the room for a period of time that is less than ten hours.
5. ADULT MOTION PICTURE THEATER. A commercial establishment where, for any form of consideration, films, motion pictures, videos, slides or other similar photographic reproduction are regularly shown which are consistently distinguished or characterized by the depiction or description of specified sexual activities or specified anatomical areas.
6. MASSAGE PARLOR. An establishment offering or providing massages, body rubs, physical stimulation or other similar treatments where the person either receiving or providing the service exposes specified anatomical areas or which involves real or simulated specified sexual activities. The following uses are not included as part of this definition:
a. Services by a licensed physician, chiropractor or osteopath, a licensed or certified physical or massage therapist, a licensed practical nurse or any other similarly licensed medical professional;
b. Electrolysis treatment by a licensed operator of electrolysis equipment;
c. Hospitals, nursing homes, medical clinics or medical offices; and
d. Barber shops or beauty parlors, health spas and/or salons offering massage to the scalp, face, neck or shoulders only.
SPECIFIED ANATOMICAL AREAS. The graphic depiction, whether real or simulated, of less than completely and opaquely covered human genitals, pubic region, buttock and female breast below a point immediately above the top of areola and human male genitals in a discernibly turgid state, even if completely and opaquely covered.
SPECIFIED SEXUAL ACTIVITIES. The graphic depiction, whether real or simulated, of human genitals in a state of sexual stimulation or arousal, acts of human masturbation, sexual intercourse or sodomy and fondling or other erotic touching of human genitals, pubic region, buttock or female breast.
(3) Locational requirements.
(a) Sexually oriented business are not permitted in any zoning district except the Industrial (I) Zone.
(b) No sexually oriented business shall be permitted in a location in which a principal building or accessory structure, including signs, is within 300 feet of any principal building or accessory structure of another sexually oriented business.
(c) No sexually oriented business shall be established on a parcel within 300 feet of any parcel in a residential district or any parcel used as a dwelling, public park, school, child care facility, church or similar place of worship, public library, city hall, police department or fire department, youth center or commercially operated school attended by children such as dance schools, gymnastic centers and the like. The distance between a proposed sexually oriented business and any such zoned area or existing use shall be measured in a straight line from the nearest property line upon which the proposed sexually oriented business is to be located to the nearest property line of that zoned area or existing use.
(4) Procedures.
(a) Special use. Review of any request for establishment of a sexually oriented business shall be in accordance with the special land use provisions of §§ 153.250 through 153.257 of this chapter. The Planning Commission shall conduct a public hearing, in accordance with the timing and notification requirements of § 153.251(B) and shall approve, deny or approve with conditions the special land use request based on the requirements of this subchapter and the general standards of § 153.253.
(b) Conditions of approval. Prior to granting approval for the establishment of any sexually oriented business, the Planning Commission may impose conditions or limitations upon the establishment, location, construction, maintenance or operation of the use as authorized by § 153.252. Any evidence, bond or other performance guarantee may be required as proof that the conditions stipulated in connection therewith will be fulfilled.
(5) Regulated uses. The following uses are regulated by this division (A):
(a) Adult arcade;
(b) Adult book store;
(c) Adult cabaret;
(d) Adult motel;
(e) Adult motion picture theater; and
(f) Massage parlor.
(6) Conditions and operating requirements.
(a) Any sign must comply with the provisions of this chapter.
(b) The entrances to the proposed sexually oriented business at both the exterior and interior walls, in a location visible to those entering and exiting the business, must be clearly marked with lettering at least two inches in height stating:
1. “Persons under the age of 18 are not permitted to enter the premises”; and
2. “No alcoholic beverages of any type are permitted within the premises”.
(c) No product or service for sale or gift, or any picture or other representation of any product or service for sale or gift, shall be displayed so as to be visible by a person of normal visual acuity from the nearest adjoining roadway or neighboring property.
(d) Hours of operation shall not exceed 9:00 a.m. to 11:00 p.m., Monday through Saturday.
(e) All off-street and on-site parking areas shall comply with this chapter based on the primary use (i.e., retail, theater and the like) and shall additionally be illuminated at all times.
(f) Any booth, room or cubical available in any sexually oriented business that is used by patrons for the viewing of any entertainment shall:
1. Be unobstructed by any door, lock or other entrance and exit control device;
2. Have at least one side totally open to a public, lighted aisle so that there is an unobstructed view at all times from the adjoining aisle of any occupant;
3. Be illuminated such that a person of normal visual acuity looking into the booth, room or cubical from its entrance adjoining the public lighted aisle can clearly determine the number of people within; and
4. Have no holes or openings in any side or rear wall not relating to utility, ventilation or temperature control services or otherwise required by any governmental code or authority.
(g) No person operating a sexually oriented business shall permit any person under the age of 18 to be on the premises of the business as an employee, customer or otherwise.
(B) Restaurant with drive-through.
(1) (a) Sufficient stacking capacity for the drive-through facility shall be provided to ensure that traffic does not extend into a private or public right-of-way, with a minimum of seven stacking spaces.
(b) Stacking spaces shall be located so as not to interfere with vehicular circulation, access to parking spaces and egress from the property by vehicles not using the drive-through facility.
(b) The waiting spaces shall be designed to allow maneuvering without being blocked by another vehicle and shall not impede traffic flow on the site.
(3) Public access to the site shall be located at least 100 feet from any intersection as measured from the nearest right-of-way line to the nearest edge of the access.
(4) The parking and maneuvering areas of the site shall be fenced and screened from the view of any abutting residential district or use by a decorative fence or wall, or a landscaped equivalent.
(5) The intensity level of sounds leaving the site shall not exceed 55 decibels (dBA) at any lot line bordering residential uses.
(6) Outdoor menu boards shall be located behind the front building line.
(C) Restaurant with outdoor seating.
(1) Restaurants providing outdoor seating within an at-grade deck or patio or a roof top deck, must first acquire a zoning and building permit from the city and Charlevoix County Building Department.
(2) All structures would be subject to review by the Zoning Administrator and shall meet the requirements of this chapter.
(3) Restaurant outdoor seating shall be allowed only during normal operating hours of the establishment.
(4) If alcoholic beverages are to be served, the current Liquor Control Commission rules and regulations shall apply.
(5) Any music or sound that would violate the city's noise ordinances and restrictions is prohibited.
(6) Lighting shall be shielded and pointed downward and shall not be a nuisance to adjacent properties subject to § 153.172.
(7) Outdoor seating space is subject to the requirements of Off-Street Parking, Loading, Access and Circulation.
(D) Roof top decks. The following provisions are intended to regulate roof top deck use, permanent or temporary, in allowed districts to reduce safety concerns, noise and other nuisances, and visual impact on neighboring properties and on the community generally. The use of roof top decks is subject to the following restrictions:
(1) A zoning and building permit for any roof top deck must be first obtained from the City Zoning Administrator and Charlevoix County Building Department and is subject to construction of and maintenance of guardrails and other protective features as required by the Charlevoix County Building Code.
(2) Any request for a City of Charlevoix zoning permit that includes a roof top deck must undergo site plan review and receive approval by the Planning Commission prior to issuance of a zoning permit.
(3) Parapet walls and perimeter guardrails shall extend around the perimeter of the roof top deck and incorporate exterior building materials consistent with the architectural style of the underlying structure subject to § 153.170.
(4) Any structure on a deck or patio must be permitted under the Zoning Code. Portable appurtenances are prohibited. Temporary appurtenances and structures are subject to site plan review to assure public safety.
(5) Except within the CBD, Central Business District, amplified musical instruments or sounds are prohibited. Any other music or sound that would violate the city's noise ordinances and restrictions is prohibited.
(6) All commercial food preparation shall take place inside the establishment.
(7) No open flames are allowed.
(8) Lighting shall be shielded and pointed downward and shall not be a nuisance to adjacent properties subject to § 153.172. Unshielded string lights are prohibited.
(9) Roof top deck space is subject to the requirements of §§ 153.185 et seq., Off-Street Parking, Loading, Access and Circulation.
(Prior Code, § 5.48) (Ord. 794, passed 9-17-2018; Ord. 795, passed 11-5-2018; Ord. 821, passed 10- 19-2020; Ord. 864, passed 1-19-2026)
§ 153.119 RECREATION AND OPEN SPACE USES.
(A) Recreation facility, outdoor.
(1) The minimum site area shall be one acre.
(2) No building or spectator seating facility shall be located within 100 feet of a lot line adjoining property in a residential district.
(3) All buildings, courts and playfields shall be set back a minimum of 50 feet from all front, side and rear lot lines. The setback shall apply to open recreation areas, such as football, soccer and baseball/softball fields and shall be measured from the edge of the fields.
(4) The minimum parking lot setback shall be 20 feet for any lot line. Ground cover and landscaping shall be provided within the setback.
(5) Activities that produce mechanical noise, such as go-carts, are prohibited.
(6) Accessory commercial activities shall be limited to those necessary to serve only the patrons of the facility.
(7) Central loudspeakers/paging systems are prohibited.
(8) No temporary sanitary facility or trash receptacle shall be located within 100 feet of an existing dwelling.
(9) Adequate trash receptacles shall be provided as needed throughout the site.
(10) Operating hours for all uses shall be determined by the Planning Commission based on the nature of the use and the nuisance potential to adjoining property owners.
(B) Other.
(Prior Code, § 5.49)
§ 153.120 RETAIL USE; GROSS LEASABLE AREA GREATER THAN 20,000 SQUARE FEET.
(A) A single retail business shall not occupy a gross leasable area greater than 20,000 square feet. This shall not be construed to limit the total size of a multi-tenant building, such as a shopping center.
(B) In addition to the special land use standards of § 153.253 of this chapter, the following criteria shall be considered. The proposed use:
(1) Will be designed, constructed and operated in a manner that will complement the immediate surroundings and the community as a whole;
(2) Will not generate excessive traffic beyond the capacity of the adjacent street network or create peak hour congestion;
(3) Will not operate during hours or days of the week that will create a nuisance for surrounding properties and residents; and
(4) Will not impose demands on public services such as, but not limited to: police, fire, water or sewer, beyond the city’s capacity to provide those services.
(Prior Code, § 5.50)
§ 153.121 OFFICE AND SERVICE USES.
(A) Day care center/nursery.
(1) Adequate space for drop off and pick up of children shall be provided near the door to the facility, so children are not required to cross parking lots or street traffic unattended.
(2) A minimum of two drop-off spaces shall be provided per 20 children or major fraction thereof, based on licensed capacity.
(3) A fenced outdoor play area shall be provided, in accordance with state requirements.
(B) Kennel, commercial.
(1) Runs, exercise areas and accessory buildings where animals are kept shall be set back at least 75 feet from any lot line abutting a residential use.
(2) Runs and/or exercise areas and buildings where the animals are kept shall only be located in a rear yard.
(3) A kennel shall be operated in conformance with all applicable county, state and federal regulations.
(4) The main kennel building used to house animals shall be sound insulated to minimize animal noise.
(5) Animals shall not be permitted in outdoor exercise yards or pens between 10:00 p.m. and 7:00 a.m.
(6) Animals shall be confined and shall not freely roam the property, except during supervised training.
(7) A run and/or exercise area shall be enclosed by a sufficiently tall chain link fence or completely covered on the sides and top to prevent animals from escaping.
(8) The waste disposal system shall be adequate and approved by the county’s Health Department.
(C) Veterinary clinic or hospital.
(1) An animal holding area shall be enclosed by a wall or fence of a height sufficient to contain animals on the premises.
(2) Kennels, pens, animal holding areas and/or stalls shall be at least at least 100 feet from a front property line and 30 feet from a side or rear line; however, if a side or rear yard abuts property in a residential district, the minimum setback shall be 50 feet.
(Prior Code, § 5.51)
§ 153.122 MEDICAL MARIJUANA RELATED USES.
(A) Purpose and intent. As a result of the enactment of the state’s Medical Marijuana Act (hereinafter referred to as the “MMMA”), Initiated Law 1 of 2008, M.C.L.A. §§ 333.26423, et seq., and its administrative rules, R 333.101 et seq., the city intends to provide reasonable land use regulations associated with the medical use of marijuana in accordance with the MMMA to:
(1) Protect public, health, safety and welfare;
(2) Provide adequate separation of primary care giver facilities from schools, churches and any areas where children congregate including, but not limited to, day care facilities, public beaches and athletic fields;
(3) Mitigate negative impacts associated with medical marijuana use in residential areas; and
(4) Require adequate separation between primary care giver facilities to prevent clustering of grow operations in one area.
(B) Definitions. For the purpose of this section, the following definitions shall apply unless the context clearly indicates or requires a different meaning.
ENCLOSED, LOCKED FACILITY. That term as defined in § 3 of Initiated Law 1 of 2008, as amended (Michigan Medical Marijuana Act), being M.C.L.A. § 333.26423.
MARIJUANA or MARIHUANA. That term as defined in § 7106 of Public Act 368 of 1978, as amended (Michigan Public Health Code), being M.C.L.A. § 333.7106.
MEDICAL USE. That term as defined in § 3 of Initiated Law 1 of 2008, as amended (Michigan Medical Marijuana Act), being M.C.L.A. § 333.26423.
PRIMARY CARE GIVER. That term as defined in § 3 of Initiated Law 1 of 2008, as amended (Michigan Medical Marijuana Act), being M.C.L.A. § 333.26423, who has registered with the Bureau of Health Professions, the state’s Department of Licensing and Regulatory Affairs or any successor agency under the state’s Medical Marijuana Act.
PRIMARY CARE GIVER FACILITY. A structure in which the activities of a primary care giver are conducted.
QUALIFYING PATIENT. That term as defined in § 3 of Initiated Law 1 of 2008, as amended (Michigan Medical Marijuana Act), being M.C.L.A. § 333.26423, who has registered with the Bureau of Health Professions, the state’s Department of Licensing and Regulatory Affairs or any successor agency under the state’s Medical Marijuana Act, and includes the parents or legal guardians of a qualifying patient under the age of 18 who are serving as the primary care giver as required by the state’s Medical Marijuana Act exclusively for that qualifying patient under the age of 18.
(C) Regulations for qualifying patients. The medical use of marijuana by a qualifying patient in that qualifying patient’s dwelling or an accessory structure is hereby recognized as an accessory use to the principal residential use of the property and can be established without a zoning permit in any zoning district, but shall be subject to the following regulations.
(1) The qualifying patient must be issued and at all times must maintain a valid registry identification card, or appropriate documentation, from the Bureau of Health Professions, the state’s Department of Licensing and Regulatory Affairs or any successor agency under the provisions of the MMMA.
(2) All marijuana plants or products must be contained within the dwelling or accessory structure in an enclosed, locked facility that permits access only by the qualifying patient.
(3) If a room with windows within the dwelling or accessory structure is utilized to grow marijuana for medical use, any artificial lighting shall be shielded to prevent glare, must not be visible from neighboring properties and must not be visible from adjacent streets or public ways.
(D) Regulations for primary care givers. The medical use of marijuana by a primary care giver is hereby authorized as a use by right within a dwelling or an accessory structure in the R1 and R2 Zoning Districts only; provided that, all of the following regulations are met.
(1) The primary care giver must be issued and at all times must maintain a valid registry identification card, or appropriate documentation, from the Bureau of Health Professions, the state’s Department of Licensing and Regulatory Affairs or any successor agency under the provisions of the MMMA.
(2) The primary caregiver must obtain a zoning permit under § 153.021 of this chapter.
(3) Except when being transported as provided in division (D)(9) below, all marijuana plants or products must be contained within the dwelling or accessory structure in an enclosed and locked facility where the marijuana plants and products are labeled for each qualifying patient and access is permitted only to the primary care giver.
(4) If a room with windows within the dwelling or accessory structure is utilized to grow marijuana for medical use, any artificial lighting shall be shielded to prevent glare, must not be visible from neighboring properties and must not be visible from adjacent streets or public ways.
(5) Except as provided herein, no more than one primary care giver shall be permitted to provide primary care giver services to qualifying patients within a single dwelling or accessory structure.
(6) Except for any qualifying patients who reside with the primary care giver at the dwelling, no more than five qualifying patients may be present at the same time at a dwelling or accessory structure in which a primary care giver of medical marijuana is providing primary care giver services to qualifying patients for any purpose directly related to primary care giver services. This division (D)(6), however, shall not be construed to prohibit the presence of qualifying patients at a dwelling or accessory structure in which a primary care giver of medical marijuana is providing primary care giver services for purposes unrelated to primary care giver services.
(7) Qualifying patient visits to a dwelling or accessory structure in which a primary care giver is providing primary care giver services to qualifying patients shall be restricted to between the hours of 7:00 a.m. and 10:00 p.m., except when the qualifying patient resides with the primary care giver at the dwelling and except when the qualifying patient visits are for purposes unrelated to primary care giver services.
(8) No qualifying patients under the age of 18 shall be permitted at any time at a dwelling or accessory structure in which a primary care giver is providing primary care giver services to qualifying patients, except in the presence of his or her parent or guardian, except when the qualifying patient resides with the primary care giver at the dwelling, and except when the qualifying patient visits are for purposes unrelated to primary care giver services.
(9) No marijuana for medical use shall be dispensed by the primary care giver to qualifying patients at the dwelling or accessory structure in which a primary care giver is providing primary care giver services to qualifying patients, except to a qualifying patient who resides with the primary care giver at the dwelling. Except as provided herein, the primary care giver shall deliver all marijuana for the medical use of such qualifying patient, and such delivery shall take place on private property away from public view. Any such delivery vehicle shall be unmarked. In addition, all marijuana for medical use delivered to a qualifying patient shall be packaged so the public cannot see or smell the marijuana.
(10) No marijuana for medical use shall be consumed, smoked or ingested by a qualifying patient by any method at a dwelling or accessory structure in which a primary care giver is providing primary care giver services to qualifying patients, except by a qualifying patient who resides with the primary care giver at the dwelling.
(11) A dwelling or an accessory structure in which a primary care giver is providing primary care giver services to qualifying patients shall display indoors and in a manner legible and visible to his or her qualifying patients:
(a) A notice that qualifying patients under the age of 18 are not allowed at the dwelling or accessory structure in which a primary care giver is providing primary care giver services to qualifying patients, except in the presence of his or her parent or guardian, except when the qualifying patient resides with the primary care giver at the dwelling, or except when the qualifying patient visits are for purposes unrelated to primary care giver services; and
(b) A notice that no dispensing or consumption of marijuana for medical use shall occur at the dwelling or accessory structure in which a primary care giver is providing primary care giver services to qualifying patients, except to or by a qualifying patient who resides with the primary care giver at the dwelling.
(12) A dwelling or an accessory structure in which a primary care giver is providing primary care giver services to qualifying patients shall not have any signage.
(13) (a) No primary care giver facility shall be located in violation of any of the following spacing requirements:
1. One thousand feet from any public or private school;
2. Three hundred feet from any church or place of worship and its accessory structures;
3. Five hundred feet from the Charlevoix Public Library; and
4. Five hundred feet from the B.A.S.E.S Teen Center.
(b) The above spacing requirements shall be from lot line to lot line. The Medical Marijuana Reference Maps below illustrate the parcels where a primary care giver facility may be established. To the extent there is a conflict between the Medical Marijuana Reference Map and the application of the spacing requirements provided herein, the application of the spacing requirements shall control.
(14) The portion of the dwelling or accessory structure in which a primary care giver is providing primary care giver services to qualifying patients, including any room or area utilized to grow marijuana for medical use, shall contain electrical service and wiring, certified by an electrician licensed in the state, meeting the applicable requirements of the electrical code in effect in the county.
(15) All primary care givers must notify the Zoning Administrator on a yearly basis if the primary care giver facility is still in operation. Notification shall be in writing and shall be submitted no less than one month before and not after the month and day of the issuance of the original permit. (Example: If the original permit is issued on 2-10-2012, notification to the Zoning Administrator must be between 1-10-2013 and 2-10-2013.)
(16) Any primary care giver with a valid zoning permit who chooses to cease operations at any point in time shall notify the Zoning Administrator in writing within seven days. The Zoning Administrator shall have the right to inspect the facility for compliance.
(E) Medical marijuana reference maps.
(Prior Code, § 5.52) (Ord. 795, passed 11-5-2018)
§ 153.123 VEHICLE RELATED USES.
(A) Vehicle repair, major.
(1) All main and accessory structures shall be set back a minimum of 75 feet from any residential district.
(2) Overhead doors shall not face a public street or residential district. The Planning Commission may modify this requirement upon a determination that there is no reasonable alternative and the poor visual impact will be diminished through use of building materials, architectural features and landscaping.
(3) Where applicable, vehicle stacking space shall be provided in front of each service bay for at least two vehicles.
(4) All maintenance and repair work shall be conducted completely within an enclosed building.
(5) There shall be no outdoor storage or display of vehicle components and parts, materials, commodities for sale, supplies or equipment.
(6) Storage of wrecked, partially dismantled or other derelict vehicles or overnight parking of any vehicle, except a tow truck, shall be permitted up to 30 days in a designated area. Such area shall be located in a rear or side yard and screened from public view in accordance with the screening requirements of § 153.171(I)(5) of this chapter.
(7) If the use includes installation of oil or other automotive fluids except for fuel, the applicant shall submit a Pollution Incidence Protection Plan (PIPP). The PIPP shall describe measures to prevent ground water contamination caused by accidental spills or leakage of gasoline or other hazardous materials, such as special check valves, drain back catch basins and automatic shut off valves, as approved by the Fire Department.
(B) Vehicle repair, minor.
(1) A building or structure shall be located at least 30 feet from any side or rear lot line abutting a residential district.
(2) Equipment, including hydraulic hoists, pits, and lubrication, greasing and other automobile repairing equipment shall be located entirely within an enclosed building. Outdoor storage or display of merchandise, such as tires, lubricants and other accessory equipment is not permitted.
(3) All activities shall occur inside a building. No vehicle may be stored on the property for more than 14 days.
(4) Storage of gasoline, liquefied petroleum gas, oil or other flammable liquids or gas above ground shall not be permitted.
(5) Floor drains shall not connect to the sanitary sewer system.
(6) If the use includes installation of oil or other automotive fluids, except for fuel, the applicant shall submit a Pollution Incidence Protection Plan (PIPP). The PIPP shall describe measures to prevent ground water contamination caused by accidental spills or leakage of gasoline or other hazardous materials, such as special check valves, drain back catch basins and automatic shut off valves, as approved by the fire department.
(7) If the use includes fuel sales, the requirements for a vehicle service station shall also be met.
(C) Vehicle service station.
(1) The site shall be located with frontage on and direct access to at least one arterial street.
(2) Minimum setback from the right-of-way shall be 30 feet for buildings and canopy structures. The setback for a canopy or similar shelter, if provided, shall be measured to the leading edge of the canopy fascia.
(3) Gasoline pumps, air and water hose stands and other appurtenances shall have a minimum setback of 25 feet from the right-of-way.
(4) Prohibited activities include outdoor storage or parking of rental or disabled or wrecked vehicles for more than seven consecutive calendar days and major vehicle repair.
(D) Vehicle wash establishment.
(1) All washing activities must occur inside a building.
(2) Required stacking spaces for waiting vehicles shall not be located within a public or private right-of-way and shall not conflict with maneuvering areas, parking spaces and other activities. Stacking lanes shall be designed to prevent vehicle queues from extending beyond the property.
(3) Wastewater must be recycled, filtered or otherwise cleansed to minimize discharge of soap, wax and solid matter into public sewers.
(4) Only one driveway shall be permitted from any street, unless the Planning Commission determines additional driveways will be necessary to ensure safe and efficient access to the site.
(5) For automated drive-through wash facilities, a by-pass lane is required that allows by-passing waiting vehicles.
(6) Overhead doors shall not face a street, except if approved by the Planning Commission in these circumstances:
(a) When the doors of a through-garage are located at the front and rear of a building;
(b) When a garage is located on a corner or through lot; or
(c) When determined that a rear garage door would negatively affect an abutting residential use or district.
(7) The property owner or operator must comply with all applicable noise regulations. Air handling equipment shall be located on a roof, be equipped with intervening noise reduction baffles, be in proper working condition and comply with this provision.
(Prior Code, § 5.53)
§ 153.124 INDUSTRIAL AND STORAGE USES.
(A) Self-storage facility.
(1) Minimum separation between self-storage buildings shall be 24 feet.
(2) Internal drive aisles shall be at least 20 feet wide; however, drives located between self-storage buildings and the property line may be one-way (and shall be marked as such) and 12 feet in width.
(3) All buildings shall be one story and shall not exceed 20 feet in height.
(4) An individual storage building shall not exceed 7,500 square feet.
(5) Except for recreational vehicles, motor homes and travel trailers, which may be stored outdoors, all other items shall be stored in an enclosed building. An outdoor storage area must be paved and completely screened from view from all adjacent residential districts and uses.
(6) Limited sales of products and supplies incidental to the principal use, such as packing materials, identification labels, rope, locks, tape and the like are permitted. Other uses such as auctions (except those authorized by the county for abandoned or garnished assets), sales or businesses of any other type are prohibited. The storage of combustible or flammable liquids, combustible fibers or explosive materials, as defined in the fire protection code, or toxic materials is also prohibited.
(Prior Code, § 5.54)
§ 153.125 OTHER USES.
(A) Athletic courts.
(1) Full sized regulation athletic courts, including basketball, tennis and pickle ball courts shall be allowed in the Private Club Residential (PC), High Density Residential (R4), Scenic Reserve (SR), and Public Facilities (P) zones. These courts may be enclosed by fencing not to exceed 15 feet tall and shall not be lit at night unless the court is in use.
(2) Athletic courts are permitted in the Low Density Single-family Residential (R1) and Medium Density Single-family Residential (R2) districts; provided that, they meet the following requirements.
(a) No athletic court shall be located in any front or side yard, nor shall any athletic court be located closer than five feet from any property line.
(b) No athletic court shall exceed 1,500 square feet in area.
(c) Athletic courts shall not be lighted.
(d) Fencing for athletic courts shall meet the requirements of § 153.145 of this chapter for fences.
(e) Athletic courts shall be included in calculating lot coverage for the underlying district.
(B) Mineral extraction operations.
(1) A special use approval shall be required for mineral extraction operations, including removal of soil, sand or gravel, where more than 600 cubic yards will be removed. The special use permit shall be subject to approval by the Planning Commission following a public hearing. Once issued, the special use may be reviewed annually by the Planning Commission to ensure that the operation conforms to all plans, progress, conditions and sureties. Removal operations shall not begin until the special use is approved and a zoning compliance permit is issued.
(2) Application. In addition to the submittals for a special use outlined in § 153.251 of this chapter, an application for a mineral extraction permit shall be accompanied by the following:
(a) A topographic map with two-foot contour intervals including the locations of all streets, buildings and existing drainage facilities within 300 feet of the property;
(b) A topographic map with two-foot contour intervals showing final elevations, including the proposed locations of access drives, parking areas and equipment;
(c) An estimated schedule for removal and an agreement conforming to all provisions of this section;
(d) A traffic control plan showing proposed truck routes to and from the site;
(e) A written description of proposed post-removal use of the property;
(f) A reclamation plan showing final grading of the site with two-foot contours, vegetation, roadways and other features to be installed; and
(g) A fee, determined by the City Manager, with input from staff to defray review, administration and inspection costs.
(3) Requirements. A special use permit shall not be issued unless activities comply with all the following requirements and the Planning Commission finds that there will be no serious consequences to the immediate area or community at large. A special use permit may be revoked if the use is found in violation of any part of this section.
(a) Activities shall comply with applicable soil erosion and sedimentation control regulations.
(b) Final grades shall not exceed 5% and shall meet existing elevations at all property lines. Grades in excess of 5% may be permitted by the Planning Commission if the applicant demonstrates that an increase is essential to implement a plan for future use.
(c) The limits of the excavation shall be at least 50 feet from any adjoining property line and 100 feet from any street right-of-way or private street easement line.
(d) Mineral extraction shall not create permanent depressions that may fill with water. All storm runoff must discharge into existing drainage systems.
(e) Since artificial lakes and water bodies can present threats of ground water pollution and stagnant water, thereby adversely affecting the public health, safety and welfare, they shall not be created as part of removal operations unless the applicant demonstrates:
1. Engineering and geological studies find there will be a positive source of unpolluted underground or stream-fed water in adequate amounts to produce positive water flow at all times;
2. Plans for the proposed artificial lake or water body have received all state approvals and conform to all federal, state, county and municipal standards;
3. A site plan of the proposed future development has been approved by the city; and
4. In an artificial lake or water body, a channel or lagoon shall not project beyond the main body of water greater than two times the width of the channel or lagoon.
(4) Conditions. Conditions may be imposed pursuant to the special land use provisions of § 153.252 of this chapter. Such conditions may include the reasonable regulation of hours of operation, blasting hours, noise levels, dust control measures and traffic unless prohibited by the state’s Zoning Enabling Act or other applicable law. All conditions shall be reasonable in accommodating customary mining operations.
(5) Financial guarantee. The city may require a financial guarantee in accordance with § 153.239 of this chapter to ensure compliance with the zoning ordinance and any conditions of approval.
(C) Similar uses.
(1) Applications for a use not specifically authorized in a zoning district, but similar to others that are identified, shall be submitted to the Planning Commission for review and a decision, based on the following.
(a) The Planning Commission shall first find that the proposed use is not listed as a permitted or special land use in any other district.
(b) If the use is not permitted elsewhere, the Planning Commission shall review the district purpose, permitted uses and special land uses in the zoning district to determine if the proposed use is consistent with the district purpose and is similar to other allowed uses relative to its character, scale and overall compatibility.
(c) The use would not be more appropriate within a different zoning district.
(2) If a proposed use is determined to be similar to other uses listed within the district, it shall comply with all the standards or requirements associated with the similar listed use(s). If the listed use(s) is a special land use, the similar use shall only be approved according to the requirements of §§ 153.250 through 153.257 of this chapter.
(3) The determination of whether a proposed use is similar to another listed use shall be considered as an interpretation of the use regulations and not a use variance. Once a use has been determined to be similar, it shall be deemed to be included in the list of uses, as regulated.
(D) Wireless telecommunications towers.
(1) Required approvals. The placement of communication facilities shall meet the following approval requirements.
(a) Installation of a new antenna. The installation of a new antenna(s) on an existing tower, including a legal non-conforming tower, and existing alternative structure (such as a water tower, building or church steeple) may be approved administratively by the Zoning Administrator, provided all the requirements of this subsection are met; however, such an installation on a city-owned or other municipal-owned structure must first be approved by the City Council. A new antenna that adds either 10% or 25 feet, whichever is less, to the highest point of an existing tower or alternative structure is subject to the provisions of this section for the installation of a new tower as described by divisions (D)(6) and (D)(7) below.
(c) Installation of a new accessory structure. The installation of a new accessory structure(s), such as an equipment building, to support the installation of an additional antenna on an existing tower or alternative structure may be approved administratively by the Zoning Administrator; provided that, adequate space exists on the tower site.
(2) Removal. A tower that is unused or abandoned for 12 consecutive months shall be removed by the property owner at their expense.
(3) Interference with public safety facilities. A new telecommunications facility shall not interfere with public safety telecommunications.
(4) Required documentation for all facilities. In addition to the requirements provided in §§ 153.250 through 153.257 of this chapter for special land use and/or for land use permit submittals, an application for a new tower, new antenna and new related facilities shall include the following. Where an alternative structure is used, comparable information for that structure shall be provided.
(a) Engineer’s report. A report from a professional engineer licensed in the state that:
1. Describes the height and design of a new tower and/or antenna including a cross-section, latitude, longitude and elevation;
2. Describes or updates (in the case of new antennas) the tower’s capacity, including the type and number of antennas it can accommodate;
3. Certifies that construction specifications comply with all applicable requirements of the building codes adopted by the city, including, but not limited to, tower foundation, guy wire anchors (if used), collocation and strength requirements for natural forces (ice, wind, earth movements and the like);
4. Certifies the facility will not interfere with established public safety telecommunications; and
5. Includes an engineer’s seal and registration number.
(b) Proof of compliance. Copies of required approvals from the Federal Communications Commission (FCC), Federal Aviation Administration (FAA) and all other appropriate state and federal agencies.
(c) Removal affidavit. A letter committing all parties, including the property owner and their successors, to remove the tower and all related accessory structures, fences and equipment if the tower is abandoned. The removal affidavit shall be recorded in the county’s Register of Deeds, with a copy of the recorded affidavit provided to the Zoning Administrator.
(5) Determination of new tower need. A new telecommunications tower may only be approved if the applicant has submitted verification from a professional engineer licensed in the state that the antenna(s) planned for the proposed new tower cannot be accommodated on an existing or approved tower or other structure within a two-mile radius of the proposed tower location due to one or more of the following:
(a) Inadequate structural capacity. The antenna(s) would exceed the structural capacity of the existing or approved tower or other structure;
(b) Interference. The antenna would cause interference, impacting the usability of other existing or planned equipment at the tower site;
(c) Inadequate height. The existing or approved towers or structures within the search radius cannot accommodate the planned equipment at the necessary height; and
(d) Land availability. Additional land area is not available.
(6) Design requirements for new towers and related facilities. All telecommunications facilities shall meet the following design requirements.
(a) Lighting. Tower lighting shall only be as required for safety or security reasons or as required by the FAA or other federal or state authority. All ground level security lighting shall be full sharp cut-off fixtures (shielded down lights).
(b) Collocation. All telecommunication towers shall be designed, and engineered structurally, electrically and in all other respects to accommodate both the applicant’s equipment and at least one additional user for every 50 feet, or fraction thereof, in total tower height in excess of 75 feet.
(c) Assumption. Each additional user shall be assumed to have an antenna loading equal to that of the initial user.
(d) Rearrangement. Towers must be designed to allow for rearrangement of antennas and to accept antennas mounted at varying heights.
(e) Height. All towers and antennas shall conform with all FAA tall structure requirements. The maximum height of all accessory structures shall be 14 feet.
(f) Signs. Signs for all telecommunications facilities shall be permitted up to a total of four square feet per user, mounted on the associated equipment building. Signs required for technical and safety information shall be exempt from this requirement.
(7) Site requirements for new towers and related facilities. All new telecommunications facilities shall meet the following site requirements.
(a) Vehicular access. Vehicle access drives may be gravel or paved and shall be located within an access easement that is at least 20 feet wide. Any portion of the entrance located in a public right-of-way shall meet the applicable public street or road design, construction and pavement requirements.
(b) Site area. A tower shall be located on a lot (or lease area) that is sufficiently large to accommodate the use and all anticipated accessory structures for future antenna users.
1. The arrangement of the tower and site topography shall be considered when determining if the site area is sufficient.
2. All tower support and stabilizing wires shall be located within the site area.
(c) Setback. The minimum required setbacks for the tower and related facilities shall be as follows:
1. Minimum side and rear setback: 50 feet from all property lines;
2. Front yard setback: as specified for the zoning district in which the tower is located; and
3. Additional setback from residential districts: a tower and related facilities shall not be closer than a distance equal to the total height of the tower plus antennas to a property within a residential district, and no closer than one-half the height of the tower plus antennas to a property line in any other district.
(d) Encroachment. No part of any telecommunications facility nor associated lines, cables, equipment, wires or braces shall at any time extend across or over any part of a public right-of-way, sidewalk or property line.
(e) Fencing. An eight-foot high security fence shall completely surround the tower and accessory equipment building site. Sharpened or electrified fencing is not permitted. An area ten feet in width shall remain outside of the fence for the purpose of providing the landscape screening described below.
(f) Landscape screening. Evergreen buffer plantings shall be located and maintained around the outermost perimeter of the security fence of all communication facilities. The landscape plan shall show all plantings and shall be approved by the Zoning Administrator or Planning Commission, as applicable, as part of the review and approval process.
1. Evergreen trees shall be planted around the perimeter of the security fence, every ten feet apart on center.
2. If evergreen hedges are used, they shall be planted a maximum of five feet apart on center.
(E) Small wireless communications facilities deployment ordinance.
(1) This division shall be known and may be cited as the "small wireless communications facilities deployment ordinance."
(2) Definitions. For the purposes of this division, the following definitions shall apply unless the context clearly indicates or requires a different meaning:
ACT. The small wireless communications facilities deployment act, Public Act 365 of 2018, being M.C.L.A. §§ 460.1301 et seq., as the same may be amended from time to time.
ANTENNA. Communications equipment that transmits or receives electromagnetic radio frequency signals used in the provision of wireless services.
APPLICANT. A wireless provider or wireless infrastructure provider that submits an application described in this division.
AUTHORITY. The City of Charlevoix, to the extent authorized by law to make legislative, quasi-judicial, or administrative decisions concerning an application described in this division. AUTHORITY does not include any of the following:
1. A municipally owned electric utility.
2. An investor-owned utility whose rates are regulated by the Michigan Public Service Commission.
3. A state court having jurisdiction over an authority.
AUTHORITY POLE. A utility pole owned or operated by an authority and located in the ROW.
COLOCATE or COLLOCATION. To install, mount, maintain, modify, operate, or replace wireless facilities on or adjacent to a wireless support structure or utility pole. COLLOCATION has a corresponding meaning. COLOCATE does not include make-ready work or the installation of a new utility pole or new wireless support structure.
FEE. An authority one-time per small cell site charge for application processing.
HISTORIC DISTRICT. An officially designated historic district.
MAKE-READY WORK. Work necessary to enable an authority pole or utility pole to support collocation, which may include modification or replacement of utility poles or modification of lines.
MICRO WIRELESS FACILITY. A small cell wireless facility that is not more than 24 inches in length, 15 inches in width, and 12 inches in height and that does not have an exterior antenna more than 11 inches in length.
PUBLIC RIGHT-OF-WAY or ROW. The area on, below, or above a public roadway, highway, street, alley, bridge, sidewalk, or utility easement dedicated for compatible uses. PUBLIC RIGHT-OF-WAY does not include any of the following:
1. A private right-of-way.
2. A limited access highway.
3. Land owned or controlled by a railroad as defined in § 109 of the Railroad Code of 1993, Public Act 354 of 1993, being M.C.L.A. § 462.109.
4. Railroad infrastructure.
RATE. An authority annual charge per site.
SMALL CELL WIRELESS FACILITY. A wireless facility that meets both of the following requirements:
1. Each antenna is located inside an enclosure of not more than six cubic feet in volume or, in the case of an antenna that has exposed elements, the antenna and all of its exposed elements would fit within an imaginary enclosure of not more than six cubic feet.
2. All other wireless equipment associated with the facility is cumulatively not more than 25 cubic feet in volume. The following types of associated ancillary equipment are not included in the calculation of equipment volume: electric meters, concealment elements, telecommunications demarcation boxes, grounding equipment, power transfer switches, cut-off switches, and vertical cable runs for the connection of power and other services.
UTILITY POLE. A pole or similar structure that is or may be used to support small cell wireless facilities. UTILITY POLE does not include a sign pole less than 15 feet in height above ground.
WIRELESS FACILITY. Wireless equipment at a fixed location that enables the provision of wireless services between user equipment and a communications network, including, but not limited to, radio transceivers, antennas, coaxial or fiber-optic cable, regular and backup power supplies, and comparable equipment, regardless of technological configuration. WIRELESS FACILITY includes a small cell wireless facility. WIRELESS FACILITY does not include any of the following:
1. The structure or improvements on, under, or within which the equipment is colocated.
2. A wireline backhaul facility.
3. Coaxial or fiber-optic cable between utility poles or wireless support structures or that otherwise is not immediately adjacent to or directly associated with a particular antenna.
WIRELESS PROVIDER. A regulated provider of telecommunications services and a WIRELESS INFRASTRUCTURE PROVIDER is an installer of wireless equipment at small cell sites and, both terms are interchangeable terms for purposes of this division. WIRELESS PROVIDER does not include an investor-owned utility whose rates are regulated by the MPSC.
WIRELESS SERVICES. Any services, provided using licensed or unlicensed spectrum, including the use of Wi-Fi, whether at a fixed location or mobile.
WIRELESS SUPPORT STRUCTURE. A freestanding structure designed to support or capable of supporting small cell wireless facilities. WIRELESS SUPPORT STRUCTURE does not include a utility pole.
WIRELINE BACKHAUL FACILITY. A facility used to transport services by wire or fiber-optic cable from a wireless facility to a network.
(3) Scope of authority.
(a) Except as provided in this division or the Act, the authority shall not prohibit, regulate, or charge for the collocation of small cell wireless facilities.
(b) The approval of a small cell wireless facility under this division authorizes only the collocation of a small cell wireless facility and does not authorize either of the following:
1. The provision of any services.
2. The installation, placement, modification, maintenance, or operation of a wireline in the ROW.
(c) The terms of this division do not permit the wireless provider to operate a cable system or to provide cable service, as those terms are defined by § 602 of the Cable Communications Policy Act of 1984, as amended (47 U.S.C. § 522), or install any wires or facilities that are required to be permitted under the METRO Act, Public Act 48 of 2002, being M.C.L.A. § 484.310, including any part of a small cell wireless facility constituting wireline telecommunication facilities.
(4) Small cell ROW access; permitted use; height; underground, downtown, residential and historic districts.
(a) This division applies only to activities of a wireless provider within the public right-of-way for the deployment of small cell wireless facilities and associated new or modified utility poles.
(b) The authority shall not enter into an exclusive arrangement with any person for use of the ROW for the construction, operation, or maintenance of utility poles or the collocation of small cell wireless facilities.
(c) 1. The authority shall not charge a wireless provider an annual rate more than:
a. $20 annually, unless division b. below applies.
b. $125 annually, if a new utility pole or wireless support structure was erected at a new site by or on behalf of the wireless provider on or after the effective date of this division. This division does not apply to the replacement of an existing utility pole that was not designed to support small cell wireless facilities.
2. Every five years after the effective date of the Act, the maximum rates are increased by 10% and rounded to the nearest dollar.
(d) All greater rates and fees in current agreements shall be modified within 90 days of application receipt, so as not to exceed the fees provided here, except for new small cell dedicated utility poles installed and operational in the ROW before the effective date of this division or related agreements, which shall remain in effect for the duration of the division or agreement.
(e) Except as set forth in §§ 153.125(F)(5) or (6), and as limited by this division, a wireless provider may colocate small cell wireless facilities and construct, maintain, modify, operate, or replace utility poles in, along, across, upon, and under the ROW as a permitted use not subject to zoning regulation if it complies with all other sections of this division and if:
1. A utility pole in the ROW installed or modified on or after the effective date of this division shall not exceed 40 feet above ground level, unless a taller height is agreed to by the authority.
2. A small cell wireless facility in the ROW installed or modified after the effective date of this division shall not extend more than five feet above a utility pole or wireless support structure on which the small cell wireless facility is colocated.
3. Such structures and facilities shall be constructed and maintained so as not to obstruct or hinder the usual travel or public safety on the ROW or obstruct the legal use of the authority's ROW or uses of the ROW by other utilities and communications service providers.
(f) A proposed utility pole or other support structure that exceeds the height limits under § 153.125(F)(4)(e), is subject to zoning review.
(g) Undergrounding. A wireless provider shall comply with reasonable and nondiscriminatory requirements including concealment measures that prohibit communications service providers from installing structures on or above ground in the ROW in an area designated solely for underground or buried cable and utility facilities, if:
1. The authority has required all cable and utility facilities, other than authority poles, along with any attachments, or poles used for street lights, traffic signals, or other attachments necessary for public safety, to be placed underground by a date that is not less than 90 days before the submission of the application; and
2. The authority does not prohibit replacement of authority poles by a wireless provider in the designated area.
3. A wireless provider may apply for a waiver of the undergrounding requirements.
(h) Historic, downtown and residential districts. A wireless provider shall comply with written, objective requirements for reasonable, technically feasible, nondiscriminatory, and technologically neutral designs or concealment measures in a historic district, downtown district, or residential zoning district. Such requirement shall not have the effect of prohibiting any wireless provider's technology. Any such design or concealment measures are not included in size restrictions in the definition of small wireless facility in this division.
(i) Aesthetic requirements. Wireless providers shall install, modify, collocate or otherwise provide all wireless facilities, equipment, poles, support structures and all other related wireless objects in a manner, size and appearance that is consistent and in conformity with the existing requirements and existing practices in fact, pertaining to such districts as defined by the applicable ordinances, rules and codes of this community and the applicable rules and laws of this state, in such fashion as to create the least negative impact on the district as possible. Such accommodations may include use of similar height, materials, color, design, number and appearance of other similar structures utilized by other occupiers of the ROW and public spaces.
1. Collocation including replacement of existing poles or support structures is strongly encouraged over the installation of additional new poles or support structures in the ROW.
2. Placement of all equipment inside the pole or support structure is favored over placement outside the pole, including ground mountings.
3. Smallest equipment, antennas and poles and support structures feasible is preferred.
4. Camouflaging, stealth or concealment elements are preferred.
5. Installations generally are favored in the following zoning districts, in the following order of preference:
a. 1st Preference: Industrial
b. 2nd Preference: Commercial
c. 3rd Preference: Residential
d. 4th Preference: Historic
e. 5th Preference: Environmentally sensitive areas including nature and wetland preservation sites
6. Disagreements between the provider and authority on specific aesthetics issues shall be addressed by the City Council upon timely written request of the provider. Staff and City Council may consider incentives favoring installations in preferred districts.
(j) All wireless providers shall repair all damage to the ROW caused by the activities of the wireless provider while occupying, constructing, installing, mounting, maintaining, modifying, operating, or replacing small cell wireless facilities, utility poles, or wireless support structures in the ROW and, to return the ROW to its original condition. Following 60 days' written notice, the authority may make those repairs and charge the wireless provider the cost of the repairs.
(5) Provider and authority responsibilities; application information; shot clocks; tolling; deemed approved; basis for denial; resubmittal; batch applications; application fees; micro wireless facility exemption; alternative siting; decommissioning sites.
(a) This division applies to activities of a wireless provider within the public right-of-way.
(b) Except as otherwise provided in this division or the Act, a wireless provider shall seek an authority ROW access permit to colocate a small cell wireless facility or install, modify, or replace a utility pole on which a small cell wireless facility will be colocated as required of all ROW users. The processing of an application for an authority ROW access permit is subject to all of the following:
1. Unless physically or technically infeasible, all small wireless facilities shall be constructed to accommodate two or more users. Any wireless provider must openly allow another provider to colocate upon its wireless facility under rates and conditions that are acceptable within the industry to promote collocation. Collocation of small cell wireless facilities is strongly encouraged.
2. In-kind contributions to the authority are not permitted in lieu of rates and fees described above unless all parties voluntarily agree in furtherance of the interests of both.
3. The applicant shall provide all the information and documentation required by the authority to enable the authority to make an informed decision with regard to its criteria for authorizing ROW access including the following:
a. A certificate of compliance with FCC rules related to radio frequency emissions from a small cell wireless facility;
b. Proof of notification to every other affected authority and all necessary permits, permit applications, or easements to ensure all necessary permissions for the proposed activity are obtained;
c. An attestation that the small cell wireless facilities will be operational for use by a wireless services provider within one year after the permit issuance date. Failure to abide by this term shall result in termination of any permit issued in reliance on such attestation.
4. Within 25 days after receiving an initial application, the authority shall notify the applicant in writing whether the application is complete. If incomplete, the notice will delineate all missing documents or information. The notice tolls the running of the time for approving or denying an application under § 153.125(F)(5)(b)6.
5. If the applicant makes a supplemental submission in response to the authority's notice of incompleteness, the authority will so notify the applicant in writing within ten days, delineating the previously requested and missing documents or information. The time period for approval or denial is tolled in the case of second or subsequent notices under the procedures identified in § 153.125(F)(5)(b)4.
6. The authority shall approve or deny the application and notify the applicant in writing within the following period of time after the application is received:
a. Collocation shot clock. For an application for the collocation of small cell wireless facilities on a utility pole, 60 days, subject to the following adjustments:
(i) Add 15 days if an application from another wireless provider was received within one week of the application in question.
(ii) Add 15 days if the authority notifies the applicant in writing that an extension is needed and the reasons for the extension before the otherwise applicable 60-day or 75-day time period under this division elapses.
b. New or replacement 40-foot pole and limited equipment. For an application for a new or replacement utility pole that meets the height requirements of § 153.125(F)(4)(e) and associated small cell facility, 90 days, subject to the following adjustments:
(i) Add 15 days if an application from another wireless provider was received within one week of the application in question.
(ii) Add 15 days if, a timely extension is requested.
(iii) Deemed approved. A completed application is considered to be approved if not timely acted upon by the authority and, subject to the condition that the applicant provide the authority not less than seven days' advance written notice that the applicant will be proceeding with the work pursuant to this automatic approval.
7. Basis for denial. The authority may deny a completed application for a proposed collocation of a small cell wireless facility or installation, modification, or replacement of a utility pole that meets the height requirements in § 153.125(F)(4)(e) if the proposed activity would do any of the following:
a. Materially interfere with the safe operation of traffic control equipment;
b. Materially interfere with sight lines or clear zones for transportation or pedestrians;
c. Materially interfere with compliance with the Americans with Disabilities Act of 1990, Public Law 101-336, or similar federal, state, or local standards regarding pedestrian access or movement.
d. Materially interfere with maintenance or full unobstructed use of public utility infrastructure under the jurisdiction of an authority.
e. With respect to drainage infrastructure under the jurisdiction of an authority, either of the following:
(i) Materially interfere with maintenance or full unobstructed use of the drainage infrastructure as it was originally designed.
(ii) Not be located a reasonable distance from the drainage infrastructure to ensure maintenance under the Drain Code of 1956, Public Act 40 of 1956, being M.C.L.A. §§ 280.1 through 280.630, and access to the drainage infrastructure.
f. Fail to comply with reasonable, nondiscriminatory, written spacing requirements of general applicability adopted by ordinance or otherwise that apply to the location of ground-mounted equipment and new utility poles and that do not prevent a wireless provider from serving any location.
g. Fail to comply with all other applicable codes.
h. Fail to comply with §§ 153.125(F)(4)(g) or (h) relating to Undergrounding and Historic, Downtown, and Residential Districts.
i. Fail to meet reasonable, objective, written stealth or concealment criteria for small cell wireless facilities applicable in a historic district or other designated area, as specified in an ordinance or otherwise and non-discriminatorily applied to all other occupants of the ROW, including electric utilities, incumbent or competitive local exchange carriers, fiber providers, cable television operators, and the authority.
8. Reasons for denial; resubmission and 30-day shot clock. If the completed application is denied, the notice shall explain the reasons for the denial and, if applicable, cite the specific provisions of applicable codes on which the denial is based. The applicant may cure the deficiencies identified by the authority and resubmit the application within 30 days after the denial without paying an additional application fee. The authority shall approve or deny the revised application within 30 days. The authority shall limit its review of the revised application to the deficiencies cited in the denial.
9. Batch applications. An applicant may file an application and receive a single permit for the collocation of up to 20 substantially similar small cell wireless installations. The authority may approve or deny one or more small cell wireless facilities included in such consolidated application.
10. Approval of an application authorizes the wireless provider to undertake the installation, collocation and maintenance of such facilities.
11. The authority shall not institute a moratorium on filing, receiving, or processing applications or issuing permits for the collocation of small cell wireless facilities or the installation, modification, or replacement of utility poles on which small cell wireless facilities will be colocated.
12. The authority and an applicant may extend a time period under this division by mutual agreement.
(c) 1. Application fee for a permit under § 153.125(F)(5)(b) shall not exceed the lesser of the following:
a. $200 for each small cell wireless facility alone.
b. $300 for each small cell wireless facility and a new utility pole to which it will be attached.
2. Every five years after the effective date of the Act, the maximum fees are increased by 10% and rounded to the nearest dollar.
(d) The authority may revoke a permit, upon 30 days' notice and an opportunity to cure, if the permitted small cell wireless facilities and any associated utility pole fail to meet the requirements of § 153.125(F)(5)(b)7.
(e) Micro wireless facility exempt. The authority shall not require a permit or any other approval or require fees or rates for ordinance compliant replacement, maintenance or operation of a small cell wireless facility or ordinance compliant installation, replacement, maintenance or operation of a micro wireless facility that is suspended on cables strung between utility poles or wireless support structures in compliance with applicable codes.
(f) Alternate siting. Upon receipt of an application to place a new utility pole, the authority may propose an alternate location within the ROW or on property or structures owned or controlled by the authority within 75 feet of the proposed location to either place the new utility pole or colocate on an existing structure. The applicant shall use the alternate location if, as determined by the applicant, the applicant has the right to do so on reasonable terms and conditions and the alternate location does not impose unreasonable technical limits or significant additional costs.
(g) Decommissioning sites. A wireless provider shall notify the authority in writing before discontinuing use of a small cell wireless facility, utility pole, or wireless support structure. The notice shall specify when and how the wireless provider intends to remove the small cell wireless facility, utility pole, or wireless support structure. The wireless provider shall return the property to its pre-installation condition. If the wireless provider does not complete the removal within 45 days after the discontinuance of use, the authority may complete the removal and assess the costs of removal against the wireless provider. A permit under this division for a small cell wireless facility expires upon removal of the small cell wireless facility.
(h) A wireless provider shall obtain a permit for any work that will affect traffic patterns or obstruct vehicular or pedestrian traffic in the ROW.
(6) Zoning review for non-permitted uses.
(a) This division applies to zoning reviews for the following activities that are subject to zoning review and approval, that are not a permitted use under § 153.125(F)(4)(e), and that take place within or outside the public right-of-way:
1. The modification of existing or installation of new small cell wireless facilities.
2. The modification of existing or installation of new wireless support structures used for such small cell wireless facilities.
(b) The processing of an application for a zoning approval is subject to all of the following requirements:
1. Within 30 days after receiving an application under this division, the authority shall notify the applicant in writing whether the application is complete. If the application is incomplete, the notice shall clearly and specifically delineate all missing documents or information. The notice tolls the running of the 30-day period.
2. The running of the time period tolled under § 153.125(F)(6)(b)1 resumes when the applicant makes a supplemental submission in response to the authority's notice of incompleteness. If the applicant makes a supplemental submission in response to the authority's notice of incompleteness, the authority will so notify the applicant in writing within ten days, delineating the previously requested and missing documents or information. The time period may be tolled in the case of second or subsequent notices under the procedures identified in division § 153.125(F)(6)(b)1. Second or subsequent notices of incompleteness may not specify missing documents or information that was not delineated in the original notice of incompleteness.
3. Modification of support structure or collocation or installation of wireless facilities shot clock 90 days - new support structure shot clock 150 days; modification by agreement; deemed approved. The authority shall approve or deny the application and notify the applicant in writing within 90 days after an application for a modification of a wireless support structure or installation of a small cell wireless facility is received or 150 days after an application for a new wireless support structure is received.
a. The time period for approval may be extended by mutual agreement between the applicant and authority.
b. If the authority fails to comply with this division, the application is considered to be approved subject to the condition that the applicant provide the authority not less than 15 days' advance written notice that the applicant will be proceeding with the work pursuant to this automatic approval.
4. The authority may deny an application if all of the following apply:
a. The denial is supported by substantial evidence contained in a written record that is publicly released contemporaneously.
b. There is a reasonable basis for the denial.
c. The denial would not discriminate against the applicant with respect to the placement of the facilities of other wireless providers.
(c) The authority's review of an application for a zoning approval is subject to all of the following requirements:
1. Applicant presumed reasonable. An applicant's business decision on the type and location of small cell wireless facilities, wireless support structures, or technology to be used is presumed to be reasonable. This presumption does not apply with respect to the height of wireless facilities or wireless support structures. The authority may consider the height of such structures in its zoning review, but shall not discriminate between the applicant and other communications service providers.
2. The authority shall not evaluate or require an applicant to submit information about an applicant's business decisions with respect to any of the following:
a. The need for a wireless support structure or small cell wireless facilities.
b. The applicant's service, customer demand for the service, or the quality of service.
3. Any requirements regarding the appearance of facilities, including those relating to materials used or arranging, screening, or landscaping, shall be reasonable.
4. Any spacing, setback, or fall zone requirement shall be substantially similar to a spacing, setback, or fall zone requirement imposed on other types of commercial structures of a similar height.
(d) Application fees:
1. $1,000 for a new wireless support structure or modification of an existing wireless support structure.
2. $500 for a new small cell wireless facility or modification of an existing small cell wireless facility.
(e) All zoning approval is void if the wireless provider fails to commence construction within one year of the grant of same, unless the authority and the applicant agree to extend this period or the delay is caused by a lack of commercial power or communications facilities at the site. The wireless provider may reapply for a zoning approval.
(f) A wireless provider may voluntarily request that a zoning approval be terminated.
(g) The authority shall not institute a moratorium on either of the following:
1. Filing, receiving, or processing applications for zoning approval.
2. Issuing approvals for installations that are not a permitted use.
(h) The authority may revoke a zoning approval, upon 30 days' notice and an opportunity to cure, if the permitted small cell wireless facilities and any associated wireless support structure fail to meet the requirements of the approval, applicable codes, or applicable zoning requirements.
(7) Authority owned poles; rates; terms.
(a) The authority shall not enter into an exclusive arrangement with any person for the right to attach to authority poles. A person who purchases, controls, or otherwise acquires an authority pole is subject to the requirements of this division.
(b) Rate. The rate for the collocation of small cell wireless facilities on authority poles shall be nondiscriminatory regardless of the services provided by the colocating person. The rate shall not exceed $30 per year per authority pole. Every five years after the effective date of the Act, the maximum rate then authorized under this division is increased by 10% and rounded to the nearest dollar. This rate for the collocation of small cell wireless facilities on authority poles is in addition to any rate charged for the use of the ROW under § 153.125(F)(4).
(c) All greater rates and fees in current agreements shall be modified within 90 days of application receipt, so as not to exceed the fees provided here, except with respect to wireless facilities on authority poles installed and operational before the effective date of this division or any related agreement, which shall remain in effect for the duration of the division or agreement.
(d) Within 90 days after receiving the first request to colocate a small cell wireless facility on an authority pole, the authority shall make available, through ordinance or otherwise, the rates, fees, and terms for the collocation of small cell wireless facilities on the authority poles. The rates, fees, and terms shall comply with all of the following:
1. The rates, fees, and terms shall be nondiscriminatory, competitively neutral, and commercially reasonable and shall comply with the Act.
2. The authority shall provide a good-faith estimate for any make-ready work within 60 days after receipt of a complete application. Make-ready work shall be completed within 60 days of written acceptance of the good-faith estimate by the applicant.
3. The person owning or controlling the authority pole shall not require more make-ready work than required to comply with law or industry standards.
4. Fees for make-ready work shall not do any of the following:
a. Include costs related to preexisting or prior damage or noncompliance unless the damage or noncompliance was caused by the applicant.
b. Include any unreasonable consultant fees or expenses.
c. Exceed actual costs imposed on a nondiscriminatory basis.
(e) This division does not require the authority to install or maintain any specific authority pole or to continue to install or maintain authority poles in any location if the authority makes a nondiscriminatory decision to eliminate aboveground poles of a particular type generally, such as electric utility poles, in a designated area of its geographic jurisdiction. For authority poles with colocated small cell wireless facilities in place when an authority makes a decision to eliminate aboveground poles of a particular type, the authority shall do one of the following:
1. Continue to maintain the authority pole.
2. Install and maintain a reasonable alternative pole or wireless support structure for the collocation of the small cell wireless facility.
3. Offer to sell the pole to the wireless provider at a reasonable cost.
4. Allow the wireless provider to install its own utility pole so it can maintain service from that location.
5. Proceed as provided by an agreement between the authority and the wireless provider.
(8) No provider requirement of service. This division does not require wireless facility deployment or regulate wireless services.
(9) Appeals. The applicant may appeal any authority determinations related to this division to the highest elected body of the authority or, the Charlevoix County Circuit Court.
(10) Defense, indemnity and insurance. All applicant wireless providers shall:
(a) Defend, indemnify, and hold harmless the authority and its officers, agents, and employees against any claims, demands, damages, lawsuits, judgments, costs, liens, losses, expenses, and attorney fees resulting from the installation, construction, repair, replacement, operation, or maintenance of any wireless facilities, wireless support structures, or utility poles to the extent caused by the applicant, its contractors, its subcontractors, and the officers, employees, or agents of any of these.
(b) Obtain insurance naming the authority and its officers, agents, and employees as additional insureds against any claims, demands, damages, lawsuits, judgments, costs, liens, losses, expenses, and attorney fees. A wireless provider may meet all or a portion of the authority's insurance coverage and limit requirements by self-insurance. To the extent a wireless provider elects to self-insure, the wireless provider shall provide to the authority evidence demonstrating, to the authority's satisfaction, the wireless provider's financial ability to meet the authority's insurance coverage and limit requirements.
(11) Bonding.
(a) As a condition of a permit described in this act, the wireless provider shall provide a $1,000 bond per small cell wireless facility, for the purpose of providing for the removal of abandoned or improperly maintained small cell wireless facilities, including those that an authority determines should be removed to protect public health, safety, or welfare, to repair the ROW as provided under § 153.125(F)(4)(b) and, to recoup rates or fees that have not been paid by a wireless provider in more than 12 months, if the wireless provider has received 60-day advance notice from the authority of the noncompliance.
(b) The authority shall not require a cash bond, unless the wireless provider has failed to obtain or maintain a bond required under this division or the surety has defaulted or failed to perform on a bond given to the authority on behalf of a wireless provider.
(12) Labeling. A small cell wireless facility for which a permit is issued shall be labeled with the name of the wireless provider, emergency contact telephone number, and information that identifies the small cell wireless facility and its location.
(13) Electric costs. A wireless provider is responsible for arranging and paying for the electricity used to operate a small cell wireless facility.
(14) Investor owned utilities.
(a) This division does not add to, replace, or supersede any law regarding poles or conduits, similar structures, or equipment of any type owned or controlled by an investor-owned utility whose rates are regulated by the MPSC, an affiliated transmission company, or an independent transmission company.
(b) This division does not impose or otherwise affect any rights, controls, or contractual obligations of an investor-owned utility whose rates are regulated by the MPSC, an affiliated transmission company, or an independent transmission company with respect to its poles or conduits, similar structures, or equipment of any type.
(c) Except for purposes of a wireless provider obtaining a permit to occupy a right-of-way, this division does not affect an investor-owned utility whose rates are regulated by the MPSC. Notwithstanding any other provision of this division, pursuant to and consistent with § 6g of Public Act 470 of 1980, being M.C.L.A. § 460.6g, the MPSC has sole jurisdiction over attachment of wireless facilities on the poles, conduits, and similar structures or equipment of any type or kind owned or controlled by an investor-owned utility whose rates are regulated by the MPSC.
(Prior Code, § 5.55) (Ord. 784, passed 10-16-2017; Ord. 794, passed 9-17-2018; Ord. 820, passed 6-1- 2020; Ord. 842, passed 12-18-2023)