The Zoning Board of Appeals of the City, heretofore created pursuant to Act No. 110 of the Public Acts of 2006, as amended, is hereby continued.

(Res. 2007-02. Passed 7-11-07; Ord. 2009-04. Passed 6-22-09.)

   Act No. 110 of the Public Acts of 2006, as amended, is hereby adopted and made a part of this Zoning Code and the provisions of such statute shall prevail, except as modified by the provisions of these Codified Ordinances which are not in direct conflict therewith.

(Res. 2007-02. Passed 7-11-07; Ord. 2009-04. Passed 6-22-09.)

   (a)   The Zoning Board of Appeals shall perform its duties and exercise its powers as provided in Act No. 110 of the Public Acts of 2006, as amended, and in such a way that the objectives of this Zoning Code shall be observed, public safety secured, and substantial justice done. Pursuant to Act No. 110 of the Public Acts of 2006, as amended, the Zoning Board of Appeals shall consist of five (5) members appointed by the CEO with Council concurrence, one (1) of whom shall be a member of the Planning Commission with appointment coinciding with Planning Commission term, and one (1) of whom that, if desired, may be a member of the City Council with appointment coinciding with City Council term.

   (b)   Appointments for each member shall be for a three (3) year term. When members are first appointed, the appointments may be for less than three (3) years to provide for staggered terms. A successor shall be appointed not more than one (1) month after the term of the preceding member has expired. Vacancies for unexpired terms shall be filled for the remainder of the term. An employee or contractor of the City may not serve as a member of the Zoning Board of Appeals. The compensation of the appointed members of the Zoning Board of Appeals may be fixed by the City Council.

   (c)   The CEO with Council concurrence may appoint to the Zoning Board of Appeals two (2) alternate members who shall have the same voting rights as a regular member of the Zoning Board of Appeals. Each alternate member shall be appointed to a full three-year term. These alternate members may be called to sit as regular members of the Zoning Board of Appeals by the Chair of the Zoning Board of Appeals or a designated representative in the following instances:

      (1)   If a regular member is absent or unable to attend one (1) or more meetings.

      (2)   If a regular member has abstained from voting or has notified the Chair of the Zoning Board of Appeals the intention to abstain from voting by reason of a conflict of interest. In such case the alternate member shall serve until a final decision has been made.

   (d)   A member of the Zoning Board of Appeals may be removed by City Council for misfeasance, malfeasance, or nonfeasance in office upon written charges and after public hearing. A member shall disqualify himself or herself from a vote in which the member has a conflict of interest. Failure of a member to disqualify himself or herself from a vote in which the member has a conflict of interest constitutes malfeasance in office.

(Res. 2007-02. Passed 7-11-07; Ord. 2009-04. Passed 6-22-09.)

   (a)   The Zoning Board of Appeals shall annually elect a Chairperson and Vice-Chairperson from the appointed members and create and fill such other offices as it may determine. The term of the Chairperson shall be one (1) year. The Zoning Board of Appeals shall hold at least one (1) regular meeting each month, unless there are no agenda items for consideration, in which case the scheduled meeting may be canceled. If appointed to the Zoning Board of Appeals, a member from the City Council or the Planning Commission cannot chair the Zoning Board of Appeals.

   (b)   The Zoning Board of Appeals shall adopt its own rules of procedure and shall keep a record of its proceedings, showing the action of the Zoning Board of Appeals. The most recent edition of Robert’s Rules of Order shall apply unless otherwise determined by a majority of the members of the Zoning Board of Appeals or unless otherwise provided by State law or these Codified Ordinances. All meetings, hearings, and records of the Zoning Board of Appeals shall be open to the public. Three (3) members of the Zoning Board of Appeals shall constitute a quorum for the conduct of its business. The Zoning Board of Appeals shall not conduct business unless a majority of the members of the Zoning Board of Appeals is present.

   (c)   The concurring vote of a majority of the members of the Zoning Board of Appeals shall be necessary to reverse an order, requirement, decision or determination of an administrative official or body, or to decide in favor of the applicant a matter upon which the Zoning Board of Appeals is required to pass under an ordinance, or to effect a variation in an ordinance. In cases pertaining to use variances, approval of a use variance shall require an affirmative vote of two-thirds (2/3) or four (4) members of the Zoning Board of Appeals.

   (d)   A member of the Zoning Board of appeals who is also a member of the Planning Commission, or the City Council, shall not participate in a public hearing on or vote on the same matter that the member voted on as a member of the Planning Commission or the City Council. However, the member may consider and vote on other unrelated matters involving the same property.

(Res. 2007-02. Passed 7-11-07; Ord. 2009-04. Passed 6-22-09.)

   In all determinations, the Zoning Board of Appeals shall make a finding of facts describing the reasons for its decision.

      (1)   Appeals for the interpretation of the provisions of this Zoning Code;

      (2)   Requests to determine the precise location of the boundary lines between the zoning districts as they are displayed on the zoning map, when there is dissatisfaction with the decision on such subject; and

      (3)   Classify a use which is not specifically mentioned as part of the use regulations of any zoning district so that it conforms to a comparable permitted or prohibited use, in accordance with the purpose and intent of each district.

      (1)   Nonuse (dimensional) variances: To authorize, upon an appeal, a variance from any dimensional standard or requirement of this chapter, such as, but not limited to, lot area and width regulations, building height and square foot regulations, setback, yard width and depth regulations, off-street parking and loading space requirements, landscaping requirements, sign regulations, and other similar requirements as specified in this Zoning Code, where by reason of unique physical characteristics a specific piece of property at the time of enactment of this Zoning Code or other extraordinary or exceptional conditions of such property, the strict application of such regulations if enacted would result in practical difficulties upon the owner of such property provided such relief may be granted without substantial detriment to the public good and without substantially impairing the intent and purpose of this Zoning Code. In granting a variance, the Zoning Board of Appeals may attach conditions regarding the location, character, and other features of the proposed uses as it may deem reasonable in furtherance of the purpose of this Zoning Code. In granting a variance, the Zoning Board of Appeals shall state the grounds upon which it justified the granting of a variance. To obtain a nonuse variance, the applicant must submit an affidavit demonstrating a practical difficulty exists, by explaining all of the following:

         A.   How the property, if developed in strict compliance with the requirements in the Zoning Code, would be prevented from being used for a permitted purpose, or how compliance with the Zoning Code requirements would be unnecessarily burdensome.

         B.   Why the requested variance will not confer special privileges that are denied other properties similarly situated and in the same zoning district.

         C.   The conditions and circumstances unique to the property which are not similarly applicable to other properties in the same zoning district.

         D.   The conditions and circumstances unique to the property which were not created by the owner, or his or her predecessor in title, within the time following the effective date of the provisions alleged to adversely affect such property.

      For each nonuse variance, the variance requested is the minimum necessary to permit reasonable use of the land.

      (2)   Use variances: The Zoning Board of Appeals may grant a use variance only upon a finding that an unnecessary hardship exists. A use variance is a variance that permits a use that is otherwise not provided for in a zoning district. Approval of a use variance shall require an affirmative vote of two-thirds (2/3) or four (4) members of the Zoning Board of Appeals. A finding of an unnecessary hardship shall require demonstration by the applicant of all of the following:

         A.   Unreasonable current zoning designation: The applicant has demonstrated that the site can not reasonably be used for any of the uses allowed within the current zoning district designation. The Zoning Board of Appeals may require submission of documentation from real estate or market experts, or a certified appraiser, to substantiate this finding.

         B.   Unique circumstances: The need for the variance is due to unique circumstances peculiar to the property and not generally applicable in the area or to other properties in the same zoning district. The applicant must prove that there are certain features or conditions of the land that are not generally applicable throughout the zone and that these features make it impossible to earn a reasonable return without some adjustment. In those situations where the difficulty is shared by others, the Zoning Board of Appeals may find that relief should be accomplished by an amendment to the Zoning Code, not a variance.

         C.   Character of neighborhood: The use variance will not alter the essential character of the neighborhood nor be of detriment to adjacent properties.

         D.   Not self-created: The problem and resulting need for the variance has not been self-created by the applicant and/or the applicant's immediate predecessor.

      For each use variance, the variance requested is the minimum necessary to permit reasonable use of the land.

      (3)   An application for the approval of a variance shall be made by an owner of an interest in the lot, to the City Clerk, accompanied by the necessary fees and documents as provided in this Zoning Code.

      (4)   The application shall be accompanied by a site plan, drawn to a scale of one (1) inch equals twenty (20) feet on three (3) acres or less and one (1) inch equals fifty (50) feet on a site over three (3) acres, placed on a standard sheet and containing the following information:

         A.   Dimensional elements for which a variance is requested.

         B.   Dimensional relationships of the subject lot to the structures on all adjacent lots.

      (1)   The application for a temporary use permit shall be accompanied by plans and specifications including a plot plan, in triplicate, drawn to scale showing the following:

         A.   The shape, location, and dimensions of the lot, including the shape, size, and location of all buildings or other structures already on the lot, the off-street parking layout, and the location of any designated fire lanes.

         B.   The materials to be utilized in and the shape, size, and location of all buildings and structures to be erected or moved onto the lot.

         C.   The anticipated vehicular traffic flow to and from the lot and any adjacent thoroughfares, loss of off-street parking spaces, if any, as well as the anticipated flow of pedestrian traffic upon lot sidewalks.

      (2)   A temporary use permit shall only be granted if the Zoning Board of Appeals determines that the proposed use, including the erection of any temporary building or structure, will:

         A.   Provide adequate light and ventilation between buildings and structures.

         B.   Provide adequate vehicular and pedestrian traffic flow and adequate off-street parking.

         C.   Provide adequate lot access for fire protection purposes.

         D.   Not adversely affect the stability and integrity of the zoning plan prescribed by this Zoning Code or otherwise interfere with the protection of public health, safety, and general welfare.

         E.   Not be incompatible with or otherwise adversely affect the physical character of the community and, in particular, the surrounding area within a distance of one thousand (1,000) feet.

         When the proposed temporary use is to be conducted on an otherwise vacant or unused lot, the use shall comply with all applicable zoning regulations for the district in which the temporary special use is to be located, including all requirements pertaining to lot size, height, setback, open space ratio, maximum percentage of covered lot area, and off-street parking. In no instance shall signs, parking, buildings, produce, or other site features occupy a public right-of-way.

      (3)   The Zoning Board of Appeals may permit in any Residential District the temporary location of a pre-manufactured building in new subdivisions for the period that active construction is in progress, provided that:

         A.   The use shall be only for offices for the specific purpose of selling lots or new homes to be erected in the subdivision.

         B.   All applicable building height, bulk, and area requirements of the district are met.

         C.   The structure shall be removed from the subdivision upon completion of the first permanently built model home intended for display, but in no case shall the pre-manufactured building remain beyond the time limitation specified above.

         In classifying uses as not requiring capital improvement, the Zoning Board of Appeals shall determine that they are either demountable structures related to the permitted use of land; recreation developments, such as, but not limited to, golf driving ranges and outdoor archery courts; or structures which do not require foundations, heating systems, or sanitary connections.

      (4)   The Zoning Board of Appeals, in granting permits for temporary uses described in paragraphs (d)(1) to (3) hereof, shall do so under the following conditions:

         A.   The granting of the temporary use shall in no way constitute a change in the basic uses permitted in the district, nor on the property wherein the temporary use is permitted.

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

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

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

      (5)   No temporary use permit shall be granted without first giving notice to owners of adjacent property of the time and place of a public hearing to be held as provided for in Section 1262.19. Further, the Zoning Board of Appeals shall seek the review and recommendation of the Planning Commission prior to the taking of any action.

   (e)   Nonconforming Uses and Structures. The Zoning Board of Appeals shall have authority to permit, upon proper application and adequate showing by applicant, an expansion, extension, or enlargement of a nonconforming use or structure, subject to the following conditions and limitations:

      (1)   No such nonconforming use shall be enlarged, increased, extended, or moved except as permitted by the Zoning Board of Appeals pursuant to authority granted to the Zoning Board of Appeals as set forth in Section 1288.07 of this Zoning Code.

      (2)   Exterior alterations, expansions, or structural modification involving exterior load-bearing walls shall be subject to review by the Zoning Board of Appeals, in accordance with Section 1288.07. This shall not include normal repair or routine maintenance of exterior surfaces.

(Res. 2007-02. Passed 7-11-07; Ord. 2009-04. Passed 6-22-09.)

   No variance shall be made in connection with a condition attached to a conditional use approved by the Planning Commission.

(Res. 2007-02. Passed 7-11-07; Ord. 2009-04. Passed 6-22-09.)

   (a)   The Zoning Board of Appeals may impose conditions upon an affirmative decision. The conditions may include conditions necessary to ensure that public services and facilities affected by a proposed land use or activity will be capable of accommodating increased service and facility loads caused by the land use or activity, to protect the natural environment and conserve natural resources and energy, to ensure compatibility with adjacent uses of land, and to promote the use of land in a socially and economically desirable manner. Conditions imposed shall do all the following:

      (1)   Be designed to protect natural resources; the health, safety, and welfare, as well as the social and economic well being, of those who will use the land use or activity under consideration; residents and landowners immediately adjacent to the proposed land use or activity; and the community as a whole.

      (2)   Be related to the valid exercise of the law enforcement and purposes which are affected by the proposed use or activity.

      (3)   Be necessary to meet the intent and purpose of these zoning regulations; be related to the standards established in this Zoning Code for the land use or activity under consideration; and be necessary to ensure compliance with those standards.

   (b)   The conditions imposed shall be recorded in the record of the approval action and shall remain unchanged except upon the mutual consent of the approving authority and the landowner. The approving authority shall maintain a record of changes granted in conditions.

(Res. 2007-02. Passed 7-11-07; Ord. 2009-04. Passed 6-22-09.)

   (a)   No order of the Zoning Board of Appeals permitting the erection of a building shall be valid for a period longer than one (1) year, unless a building permit for such erection or alteration is obtained within such period, and such erection or alteration is started and proceeds to completion in accordance with the terms of such permit.

   (b)   No order of the Zoning Board of Appeals permitting a use of a building or premises shall be valid for a period longer than one (1) year unless such use is established within such period; however, where such permitted use is dependent upon the erection or alteration of a building, such order shall remain in force and effect if the building permit for said erection or alteration is obtained within such period, and such erection or alteration is started and proceeds to completion in accordance with the terms of such permit.

(Res. 2007-02. Passed 7-11-07; Ord. 2009-04. Passed 6-22-09.)

   The City Council may from time to time prescribe and amend by resolution a reasonable schedule of fees to be charged to applicants for Zoning Board of Appeals proceedings. At the time an application is filed, said fee shall be paid to the City Clerk.

(Res. 2007-02. Passed 7-11-07; Ord. 2009-04. Passed 6-22-09.)

   (a)   An appeal may be taken to the Zoning Board of Appeals by any person, firm or corporation, or by an officer, department, board or bureau affected by a decision of the Building Official or Planning Commission when exercising its administrative role. Such appeal shall be taken within such time as shall be prescribed by the Zoning Board of Appeals by general rule, by filing with the Building Official and with the Zoning Board of Appeals a notice of appeal, specifying the grounds thereof. The Building Official shall transmit to the Zoning Board of Appeals all of the papers constituting the record upon which the action appealed from was taken. A fee, as described in Section 1264.09, shall be paid to the City Clerk at the time the notice of appeal is filed. The notice of appeal shall specify the particular grounds upon which the appeal is based, and shall be signed. It shall also specify the requirements from which a variance is sought and the nature and extent of such variance.

   (b)   The Building Department or Clerk's Office shall follow the notice procedures under Section 1262.19.

   (c)   Notices are required for all variance requests, map and text interpretations, temporary uses, and general appeals to the Zoning Board of Appeals, including appeals on conditional uses and planned unit developments.

   (d)   Any person shall be accorded the right to appear in person or be represented by a duly authorized agent.

   (e)   The Zoning Board of Appeals shall prepare an official record of each appeal and shall base its decision on this record. The official record shall include:

      (1)   The relevant administrative records and the administrative orders issued thereon relating to the appeal.

      (2)   The notice of appeal.

      (3)   Such documents, exhibits, photographs, or written reports as may be submitted to the Zoning Board of Appeals for its consideration.

   (f)   The written findings of fact, the conditions attached, and the decisions and orders of the Zoning Board of Appeals in disposing of the appeal shall be entered into the official minutes. The official minutes of all business of the Zoning Board of Appeals shall be filed in the office of the Clerk.

   (g)   The Chairperson of the Zoning Board of Appeals may recess such hearings from time to time, and, if the time and place of the continued hearing be publicly announced at the time of adjournment of the Zoning Board of Appeals hearing, no further notice shall be required.

   (h)   A copy of the official minutes of an appeal shall be made available for the parties to the appeal upon request and after the payment of such fee therefor as may be provided by the rules and regulations of the Zoning Board of Appeals.

(Res. 2007-02. Passed 7-11-07; Ord. 2009-04. Passed 6-22-09.)

   (a)   The decision of the Zoning Board of Appeals shall be final. However, a person having an interest affected by this Zoning Code may appeal to the circuit court.

   (b)   The Zoning Board of Appeals is without general authority to reconsider a matter it has decided and from reversing its previous decision, unless the facts and circumstances which actuated the decision have so changed as to vitiate or materially affect the reason which produced and supported it, and no vested rights have intervened.

(Res. 2007-02. Passed 7-11-07; Ord. 2009-04. Passed 6-22-09.)

   The decision of the Zoning Board of Appeals shall not become final until the expiration of five (5) days from the date of entry of such order, unless the Zoning Board of Appeals finds that the immediate effect of such order is necessary for the preservation of property or personal rights and so certifies on the record. A party aggrieved by the decision of the Zoning Board of Appeals may appeal to the Circuit Court. An appeal from a decision of a Zoning Board of Appeals shall be filed within thirty (30) days after the Zoning Board of Appeals issues its decision in writing signed by the Chairperson, or within twenty-one (21) days after the Zoning Board of Appeals approves the minutes of its decision.

(Res. 2007-02. Passed 7-11-07; Ord. 2009-04. Passed 6-22-09.)