It is the purpose of this article to create a zoning board of appeals, to establish its responsibilities and to establish standards for its operation.

(Ord. No. 202, art. 12, § 1, 11-6-2017)

(a)

Establishment. There is hereby established a zoning board of appeals in accordance with the Michigan Zoning Enabling Act, Public Act No. 110 of 2006, as amended. The zoning board of appeals shall perform its duties and exercise its powers so that the health, safety and welfare of the public may be secured; and that substantial justice be done.

(b)

Membership, term of office of the zoning board of appeals.

(1)

The zoning board of appeals shall consist of not less than three and not more than seven members who shall be appointed and shall serve in accordance with the Michigan Zoning Enabling Act, Public Act No. 110 of 2006, as amended. The village council may serve as the zoning board of appeals.

(2)

The membership of the zoning board of appeals shall be as representative as possible. One member of the zoning board of appeals shall be a member of the village planning commission.

(c)

Powers. The zoning board of appeals may reverse or affirm, wholly or partly, or may modify the order, requirement, decision or determination as in its opinion ought to be made in the premises, and to that end, shall have all the powers of the office or body from whom the appeal was taken, and may issue or direct the issuance of a permit. The zoning board of appeals shall have the power to make final determinations, within its jurisdiction and duties herein prescribed, in such a way that the objectives of this chapter may be equitably achieved in order for there to be uniform interpretation and flexibility in the enforcement of this chapter or to fulfill any other responsibilities bestowed upon the zoning board of appeals by this chapter.

(Ord. No. 202, art. 12, § 2, 11-6-2017)

(a)

The zoning board of appeals shall fix rules of procedure or bylaws to govern its procedures. The board shall choose its own chairman, and in his absence, an acting chairman, who may administer oaths and compel the attendance of witnesses.

(b)

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 the administrative official or body, or to decide in favor of the applicant any matter upon which they are required to pass or to effect any variation under this chapter.

(c)

The zoning board of appeals shall not have the power to alter or change the zoning district classification of any property, nor to make any change in the terms or intent of this chapter; these powers are reserved to the governing body.

(Ord. No. 202, art. 12, § 3, 11-6-2017)

The zoning board of appeals shall hear and decide appeals where it is alleged by the appellant that there is an error in any order, requirement, permit, decision or refusal made by the zoning administrator or by any other official in administering or enforcing any provisions of this chapter. The procedure for appealing to the zoning board of appeals, or requesting a variance, ordinance interpretation or filing any other request is as follows:

(1)

The appeal shall be taken within such time as prescribed by the rules or bylaws of the zoning board of appeals.

(2)

A fee, prescribed by the village board, shall be submitted to the zoning administrator at the time of the filing of the application form.

(3)

The person, firm, agent, or attorney thereof making the appeal shall file by completing and signing the application form provided by the village.

(4)

All persons shall file a written statement signed by the principal stating the agent's right to act upon their behalf.

(5)

A completed application form shall be submitted to the zoning administrator. The application shall state the reasons for the appeal and the order or ruling appealed from. When applicable, the legal description of the property involved shall be stated in the notice of appeal. Before the appeal is processed, the fees shall be collected. If the zoning administrator determines that the application does not fully comply with the submittal requirements, the application shall be returned to the applicant. If the application is approved, the zoning administrator shall forthwith transmit to the recording secretary for the zoning board of appeals the application and all papers constituting the record from which the appeal was taken.

(6)

An appeal stays all proceedings in furtherance of the action appealed from unless the officer from whom the appeal is taken certifies to the zoning board of appeals after the application of appeal shall have been filed, that by reason of facts stated in the appeal application, a stay would in his opinion cause imminent peril to life and property.

(7)

When a properly executed application form has been filed, the recording secretary, upon consultation with the chairman for the zoning board of appeals, shall schedule the matter for a public hearing.

(8)

Notice shall be provided per section 103 of Public Act No. 110 of 2006.

(9)

Once all the necessary information has been received, the zoning board of appeals shall return a decision on a case in a timely manner, or if timeframes are included within its rules of procedure, then within the time specified in the rules of procedure.

(10)

No zoning permit shall be issued by the zoning administrator based on a decision of the zoning board of appeals before eight days have expired.

(Ord. No. 202, art. 12, § 4, 11-6-2017)

The zoning board of appeals shall have the power to authorize, upon appeal, a dimensional non-use variance from requirements of this chapter, provided the applicant has proven a "practical difficulty," by demonstrating as follows:

(1)

That strict compliance with this chapter would unreasonably prevent the owner from using the property for a permitted purpose, or would render conformity with such restrictions unnecessarily burdensome;

(2)

That the problem is due to a unique circumstance of the property;

(3)

That the specific conditions relating to the property are not so general or recurrent in nature, in the zoning district, so as to require an amendment to this chapter, instead of a variance;

(4)

That the property problem was not created by the action of the applicant;

(5)

That the granting of the variance will not cause a substantial adverse effect upon property values in the immediate vicinity, or in the district in which the property of the applicant is located;

(6)

That the requested variance will relate only to the property under the control of the applicant;

(7)

That the nonconforming dimensions of other lands, structures, or buildings in the same zoning district shall not be considered grounds for the issuance of a variance;

(8)

That the variance is the minimum variance that will make possible the reasonable use of the land, building or structure in the zoning district in which it is located;

(9)

That the proposed use of the premises is in accord with this chapter;

(10)

That the variance would do substantial justice to the applicant as well as to other property owners in the district;

(11)

That the granting of the variance will ensure that the spirit of this chapter is observed, public safety secured and substantial justice applied;

(12)

That the requested variance shall not amend the permitted uses of the zoning district in which it is located.

(Ord. No. 202, art. 12, § 5, 11-6-2017)

The following rules shall be applied in the granting of a variance:

(1)

The zoning board of appeals shall specify, in writing, such conditions regarding the character, location, and other features which will, in its judgment, secure the objectives and intent of this chapter, provided there is an applicable standard in this chapter to serve as the basis for such condition. The breach of such condition shall automatically invalidate the permit granted.

(2)

Each variance granted under the provisions of this chapter shall become null and void unless the construction authorized has been commenced within one year after the hearing date when the variance was granted.

(Ord. No. 202, art. 12, § 6, 11-6-2017)

The zoning board of appeals shall have the power to:

(1)

Interpret, upon request, the provisions of this chapter in such a way as to carry out the intent and purpose of this chapter.

(2)

Determine the precise location of the boundary lines between zoning districts.

(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. The classification of the unmentioned use does not automatically permit the use, it only identifies the district in which it may be located and the zoning regulations with which it must conform.

(4)

Determine the signage, landscaping, buffering, off-street parking and loading space requirements of any use not specifically mentioned in this chapter, by applying the most comparable provisions for other similar uses.

(5)

When making an interpretation, the zoning board of appeals shall carefully consider the definitions in section 42-9, the meaning of all the relevant sections in this chapter, past decisions of the zoning board of appeals on similar matters, research and any conclusions by the zoning administrator, consultant or attorney paid by the village, and shall make a decision on the narrowest grounds feasible so as not to upset the meaning and application of this chapter.

(Ord. No. 202, art. 12, § 7, 11-6-2017)

The zoning board of appeals shall have the power to make "lot of record" determinations in accordance with the following procedure:

(1)

Upon application of any person claiming to be the owner of the legal or equitable title to a parcel of land which was the subject to a deed or land contract, not recorded in the office of the register of deeds on the effective date of the ordinance from which this chapter is derived, the zoning board of appeals is authorized to conduct a hearing to determine whether a variance should be granted to such owner entitling him to have the parcel treated as a "lot of record" as provided for in this chapter.

(2)

The board shall grant said variance when it finds by a preponderance of the evidence that the instrument purporting to transfer title to the parcel of said owner was executed prior to the effective date of the ordinance from which this chapter is derived. In making its determination, the board is authorized to consider all matters it deems relevant, including, but not limited to, the tax roll of the village, the relationship of the parties to the purported transfer, the degree of formality of the purported document of transfer, and the testimony of the applicant and his witnesses.

(3)

Such a determination shall have only the effect of equating such an owner with the owner of a lot of record and shall not relieve such owner from complying with the other requirements set forth in this chapter.

(Ord. No. 202, art. 12, § 8, 11-6-2017)

Nonconforming buildings or structures may be structurally changed, altered, or enlarged upon appeal in cases of hardship or other extenuating circumstances, and when approval of said appeal will not have an adverse effect on surrounding property, and when consistent with the requirements of this chapter.

(Ord. No. 202, art. 12, § 9, 11-6-2017)

(a)

The zoning board of appeals shall grant no variance or make any determination on an appeal, ordinance interpretation or other issue requested of it unless the board records specific findings of fact based directly on the particular evidence presented to it. These findings of fact must support conclusions that the standards imposed by the requirements of this chapter have been met.

(b)

Said findings of fact shall include, but not be limited to, the following information:

(1)

How the application of this chapter creates unnecessary hardship or practical difficulty in the use of the petitioner's property.

(2)

Identify the unique physical circumstances or conditions or exceptional topography that create practical difficulties.

(3)

Specific findings (characteristics of the land) showing that because of physical circumstances or conditions there is no possibility that the property can be developed in strict conformity with the provisions of this chapter.

(4)

That the authorization of a variance is, therefore, necessary to enable the reasonable use of the property and that the condition is specific to this property and not general to other properties in the area.

(5)

Finding that the practical difficulty was not created by the appellant and is related only to property that is owned or occupied by the appellant.

(6)

A statement of the impacts of the variance if authorized, the property values, use and enjoyment of the property in the neighborhood or district, and on the public, health, safety and welfare.

(7)

The proposed variance does not permit the establishment of any use which is not permitted by right within the district or any use or dimensional variance for which a special use permit is necessary.

(8)

Findings on whether the proposed development complies with the requirements, standards or procedures given in this chapter or an interpretation of the disputed chapter provisions, if applicable.

(9)

Findings on any error in judgment or procedure in the administration of the relevant zoning provisions.

(10)

The possible precedents or affects which might result from the approval or denial or the appeal.

(11)

Findings on the impact if the appeal is approved, on the ability of the village or other governmental agency to provide adequate public services and facilities and/or programs that might reasonably be required in the future if the appeal is approved.

(Ord. No. 202, art. 12, § 10, 11-6-2017)

When an appeal is taken to the zoning board of appeals, the applicant shall have the burden of presenting to the board sufficient evidence and argument to justify the requested order or decision.

(Ord. No. 202, art. 12, § 11, 11-6-2017)

(a)

Any request for reapplication or rehearing may be submitted to the zoning board of appeals. If the zoning board of appeals votes to consider a reapplication or to grant a rehearing, the board shall then, at the same hearing, proceed with the appeal, variance or interpretation without charging the applicant a second fee.

(b)

A request for rehearing shall be made within eight days from the meeting at which the original decision was made.

(Ord. No. 202, art. 12, § 12, 11-6-2017)

In authorizing any variance, the zoning board of appeals may require that a bond or other performance guarantee be furnished to ensure compliance with the requirements, specifications and conditions imposed with the granting of a variance.

(Ord. No. 202, art. 12, § 13, 11-6-2017)