The planning commission and city council have recognized that, in certain instances, it would be an advantage to both the city and property owners seeking rezoning if a site plan, along with conditions and limitations that may be relied upon by the city, could be proposed as part of a petition for rezoning. Therefore, it is the intent of this article to provide an election to property owners in connection with the submission of petitions seeking the amendment of this chapter for approval of a rezoning with conditions, per MCL 125.3405. This is to accomplish, among other things, the objectives of the zoning ordinance through a land development project review process based upon the site planning criteria to achieve integration of the proposed land development project with the characteristics of the project area.

(Ord. No. H-07-01, § 17.01, 7-24-07)

The following definitions shall apply in the interpretation of this article:

Applicant shall mean the property owner, or a person acting with the written and signed authorization of the property owner to make application under this article.

CR shall mean a conditional rezoning, as authorized pursuant to MCL 125.3405.

CR agreement shall mean a written agreement approved and executed by the city and property owner, incorporating a CR plan, and setting forth rezoning conditions, conditions imposed pursuant to MCL 125.3405 and any other terms mutually agreed upon by the parties relative to land for which the city has approved a rezoning with rezoning conditions. Terms may include the following:

(1)

Agreement and acknowledgment that the rezoning with rezoning conditions was proposed by the applicant to induce the city to grant the rezoning, and that the city relied upon such proposal and would not have granted the rezoning but for the terms spelled out in the CR agreement; and, further agreement and acknowledgment that the conditions and CR agreement are authorized by all applicable state and federal law and constitution, and that the agreement is valid and was entered into on a voluntary basis, and represents a permissible exercise of authority by the city.

(2)

Agreement and understanding that the property in question shall not be developed or used in a manner inconsistent with the CR plan and CR agreement.

(3)

Agreement and understanding that the approval and CR agreement shall be binding upon and inure to the benefit of the property owner and city, and their respective heirs, successors, assigns, and transferees.

(4)

Agreement and understanding that, if a rezoning with rezoning conditions becomes void in the manner provided in this article, no development shall be undertaken or permits for development issued until a new zoning district classification of the property has been established.

(5)

Agreement and understanding that each of the requirements and conditions in the CR agreement represents a necessary and reasonable measure which, when considered with all other conditions and requirements, is roughly proportional to the increased impact created by the use represented in the approved rezoning with rezoning conditions, taking into consideration the changed zoning district classification and the specific use authorization granted.

CR plan shall mean a plan of the property which is the subject of a rezoning with rezoning conditions, prepared by a licensed civil engineer or architect, that may show the location, size, height, design, architecture or other measure or feature for and/or buildings, structures, improvements and features on, and in some cases adjacent to, the property. The details to be offered for inclusion within the CR plan shall be determined by the applicant, subject to approval of the city council after recommendation by the planning commission.

Rezoning conditions shall mean conditions proposed by the applicant and approved by the city as part of an approval under this article, including review and recommendation by the planning commission, which shall constitute regulations for and in connection with the development and use of property approved with a rezoning condition in conjunction with a rezoning. Such rezoning conditions shall not authorize uses or developments of greater intensity or density and which are not permitted in the district proposed by the rezoning (and shall not permit uses or development expressly or implicitly prohibited in the CR agreement), and may include some or all of the following:

(1)

The location, size, height or other measure for and/or of buildings, structures, improvements, setbacks, landscaping, buffers, design, architecture and other features shown on the CR plan.

(2)

Specification of maximum density or intensity of development and/or use, expressed in terms fashioned for the particular development and/or use, for example, and in no respect by way of limitation, units per acre, maximum usable floor area, hours of operation and the like.

(3)

Preservation of natural resources and/or features.

(4)

Facilities to address drainage/water quality.

(5)

Facilities to address traffic issues.

(6)

Preservation of open space.

(7)

A written understanding for permanent maintenance of natural resources, features, and/or facilities to address drainage/water quality, traffic, open space and/or other features or improvements; and, provision for authorization and finance of maintenance by or on behalf of the city in the event the property owner(s) fail(s) to timely perform after notice.

(8)

Signage, lighting, and landscaping of and/or building materials for the exterior of some or all structures.

(9)

Permissible uses of the property.

(10)

Preservation of historic buildings/structures to preserve the history of the City of Dearborn Heights.

(11)

Donation of land for open space, using a land conservancy or other means, to protect the open space for future generations.

(12)

Paving, making substantial improvements to, or funding of improvements to major city roads where the entire city benefits.

(13)

Construction and/or donation of community buildings where the need has been identified and defined by the city.

(14)

Provide usable and contiguous open space amounting to at least forty (40) percent of the site, using the concept of clustering.

(15)

Added landscaping, above and beyond what is required by city ordinance.

(16)

Reclamation and re-use of land, where previous use of land causes severe development difficulties, or has caused blight.

(17)

Installation of streetscape on an arterial road, beyond what is required by ordinance, and where compatible with city guidelines concerning trees, streetlights, and landscaping.

(18)

Drain and drainage improvements, beyond what is required by ordinance, using best management practices.

(19)

Providing monuments or other landmarks to identify city boundaries.

(20)

Such other conditions as deemed important to the development by the applicant.

(Ord. No. H-07-01, § 17.02, 7-24-07)

(a)

Option for conditional rezoning. A property owner shall have the option of making an election under this article in conjunction with a submission of a petition seeking a rezoning. Such election shall be to seek a rezoning with rezoning conditions, pursuant to MCL 125.3405, which would represent a legislative amendment of the zoning ordinance.

(1)

Timing. Such election may be made at the time of the application for rezoning is filed, or at a subsequent point in the process of review of the proposed rezoning.

(2)

Procedure. The election shall be made by filing an application, conforming with this article, for approval of a conditional rezoning that would establish site-specific use authorization if the petition for rezoning is granted.

(b)

Eligibility. In order to be eligible for the proposal and review of a rezoning with rezoning conditions, a property owner must propose a rezoning of property to a new zoning district classification, and must, as part of such proposal, voluntarily offer certain site-specific regulations (to be set forth on a CR plan and in a CR agreement to be prepared) which are, in material respects, equally or more strict or limiting than the regulations that would apply to the land under the proposed new zoning district, such as set forth in the definition of the "Rezoning conditions," subsections (1) through (20) found in section 36-592.

(Ord. No. H-07-01, § 17.03, 7-24-07)

(a)

Pre-application meeting. Before submitting an application for conditional rezoning, the applicant shall confer in a pre-application conference with the community development director, building official, the city planning consultant, the city engineering consultant, the city attorney, and all other appropriate city officials, including but not limited to police, fire and public works, and for proposals located within the TIFA district, the director of the TIFA. The purpose of such a conference is to obtain information and guidance regarding land development regulations, the city's master plan, and the application process. The city attorney and city planning and engineering consultant's fees for any such pre-application conference shall be paid by the applicant.

(b)

Offer of conditions. At the time of making application for amendment of this chapter seeking a rezoning of property, or at least a later time during the process of city consideration of such rezoning, a property owner may submit an application for approval of a conditional rezoning to apply in conjunction with the rezoning.

(c)

Application. The application, which may be amended during the process, shall be submitted to the building department and shall include a CR plan proposed by the applicant and shall specify the rezoning conditions proposed by the applicant, recognizing that rezoning conditions shall not authorize uses or development not permitted in the district proposed by the rezoning. The application and CR plan shall be distributed in accordance with subsection 36-494(b).

(d)

Notice of public hearing. The proposed rezoning with rezoning conditions, together, shall be noticed for public hearing before the planning commission, in accordance with section 36-481, as a proposed legislative amendment to the zoning ordinance.

(e)

Planning commission recommendation. Following the public hearing and further deliberations as deemed appropriate by the planning commission, the planning commission shall make a recommendation to the city council on the proposed rezoning with rezoning conditions.

(f)

City council action. Upon receipt of the recommendation of the planning commission, the city council shall commence deliberations on the proposed rezoning with rezoning conditions. If the city council determines that it may approve the rezoning with rezoning conditions, the city council shall specify tentative conditions and direct the city attorney to work with the applicant in the development of a proposed CR agreement.

(Ord. No. H-07-01, § 17.04, 7-24-07)

(a)

City council authorized to approve. Pursuant to MCL 125.3405, the city council, following public hearing and recommendation by the planning commission, may approve a petition for a rezoning with rezoning conditions requested by a property owner.

(b)

Required information. As an integral part of the conditional rezoning, the following shall be reviewed and may be approved:

(1)

CR plan. A CR plan, with such detail and inclusions proposed by the applicant and approved by the city council in accordance with this article, following recommendation by the planning commission. The CR plan shall not replace the requirement for site plan review and approval, or subdivision or condominium approval, as the case may be.

(2)

Statement of rezoning conditions. Rezoning conditions, as defined for purposes of this article, which shall be required by the city council following recommendation by the planning commission. Rezoning conditions shall not authorize uses or development not permitted in the district proposed by the rezoning (and shall not permit uses or development expressly or implicitly prohibited in the CR agreement).

(3)

CR agreement. A CR agreement, which shall be prepared by the city attorney and the applicant (or designee) and approved by the city council, and which shall incorporate the CR plan and set forth the rezoning conditions, together with any other terms mutually agreed upon by the parties (including the minimum provisions specified in the definition of CR agreement, above).

(c)

Zoning map designation. If approved, the zoning district classification of the rezoned property shall consist of the district to which the property has been rezoned, accompanied by a reference to "CR conditional rezoning". The zoning map shall specify the new zoning district with a reference to "CR" (for example, the district classification for the property might be RM, multiple-family residential district, with CR, conditional zoning, with a zoning map designation of RM-CR) and use of the property so classified and approved shall be restricted to the permission granted in the CR agreement, and no other development or use shall be permitted.

(d)

Use of property. The use of the property in question shall, subject to subsection (1) below, be in total conformity with all regulations governing development and use within the zoning district to which the property has been rezoned, including, without limitation, permitted uses, lot sizes, setbacks, height limits, required facilities, buffers, open space areas, and land use density; provided, however, the following shall apply:

(1)

Primacy of CR plan. Development and use of the property shall be subject to the more restrictive requirements shown or specified on the CR plan, and/or in the other conditions and provisions set forth in the CR agreement, required as part of the conditional rezoning approval, and such CR plan and conditions and CR agreement shall supersede all inconsistent regulations otherwise applicable under the zoning ordinance.

(e)

Review and approval criteria. The applicant shall have the burden of demonstrating that the following requirements and standards are met by the CR plan, rezoning conditions, and CR agreement:

(1)

Objectives of conditional rezoning. Approval of the application shall accomplish, among other things, and as determined in the discretion of the city council, the integration of the proposed land development project with the characteristics of the project area, and result in an enhancement of the project area as compared to the requested zoning change, and such enhancement would be unlikely to be achieved or would not be assured in the absence of the use of a conditional rezoning.

(2)

Basis for approval. Sufficient conditions shall be included on and in the CR plan and CR agreement on the basis of which the city council concludes, in its discretion that, as compared to the existing zoning and considering the site specific land use proposed by the applicant, it would be in the public interest to grant the rezoning with rezoning conditions.

a.

In determining whether approval of a proposed application would be in the public interest, the benefits which would reasonably be expected to accrue from the proposal shall be balanced against, and be found to clearly outweigh the reasonably foreseeable detriments thereof, taking into consideration reasonably accepted planning, engineering, environmental and other principles, as presented to the city council, following recommendation by the planning commission, and also taking into consideration the special knowledge and understanding of the city by the city council and planning commission.

(f)

Expiration. Unless extended by the city council for good cause, the rezoning with rezoning conditions shall expire following a period of two (2) years from the effective date of the rezoning unless construction on the development of the property pursuant to the required permits issued by the city commences within such two-year period and proceeds diligently and in good faith as required by ordinance to completion.

(1)

Non-commencement. In the event the development has not commenced, as defined above, within two (2) years from the effective date of the rezoning, the conditional rezoning, and the CR agreement shall be void and of no effect.

(2)

Extension of approval. The property owner may apply to the city council for a one (1) year extension, provided that no other extension has been previously granted for the case. The request must be submitted to the city clerk before the two-year time limit expires. The property owner must show good cause as to why the extension should be granted.

(3)

Action in violation of agreement. If development and/or actions are undertaken on or with respect to the property in violation of the CR agreement, such development and/or actions shall constitute a nuisance per se. In such cases, the city may issue a stop work order relative to the property and seek any other lawful remedies. Until curative action is taken to bring the property into compliance with the CR agreement, the city may withhold, or following notice and an opportunity to be heard, revoke permits and certificates, in addition to or in lieu of such other lawful action to achieve compliance.

(g)

City action upon expiration. If the rezoning with rezoning conditions becomes void in the manner provided above, the city shall rezone the property in accordance with the procedures of the zoning ordinance. Until such a time as a new zoning district classification of the property has become effective, no development shall be undertaken or permits for development issued.

(Ord. No. H-07-01, § 17.05, 7-24-07)

Approval of the CR plan and agreement confirms only the rezoning of the property, subject to any conditions imposed as reflected in the CR plan and after recordation as set forth in section 36-598. Approval of the usual site plan shall be required before any improvements to the property may be undertaken.

(Ord. No. H-07-01, § 17.06, 7-24-07)

Any amendment of a CR agreement shall be proposed, reviewed, and approved in the same manner as a new rezoning with rezoning conditions.

(Ord. No. H-07-01, § 17.07, 7-24-07)

A rezoning with rezoning conditions shall become effective following publication in the manner provided by law, and, after recordation of the CR agreement, whichever is later.

(Ord. No. H-07-01, § 17.08, 7-24-07)

The applicant for a rezoning with rezoning conditions shall pay, as a fee, the city's costs and expenses incurred by the city in the review of any preparation of documents for a rezoning with rezoning conditions. An escrow shall be established in an amount specified by city council resolution, and additional reasonable amounts shall be contributed as required in order to complete the process of review and approval. Any unexpended amounts from such escrow shall be returned to the applicant.

(Ord. No. H-07-01, § 17.09, 7-24-07)