(a)   There is hereby established a Board of Appeals which shall perform the duties and exercise the powers as provided in the Zoning Act, and in such a way that the objectives of this title shall be observed.

      (1)   One member may be a member of the Planning Commission and one member or alternate member may be a member of the legislative body but shall not serve as the chairperson of the Board of Appeals. An employee or contractor of the legislative body may not serve as a member.

      (2)   The creation, membership and reappointment of a Board of Appeals shall meet the requirements of the Zoning Act.

   (b)   A member of the Board of Appeals who also serves as a member of the Planning Commission or legislative body must abstain from voting on a matter being considered by the Board of Appeals that he or she voted on as a member of another board. In this instance, an alternate member should sit instead.

(Ord. 89. Passed 4-10-72; Ord. 2009-5. Passed 11-9-09.)

   (b)   Alternate Members. The Village Council may appoint not more than two alternate members for the same term as regular members of the Board of Appeals. The alternate members may be called on a rotating basis to sit as regular members of the Board in the absence of a regular member. An alternate member may also be called to serve in the place of a regular member for the purpose of reaching a decision on a case in which the regular member has abstained for reasons of conflict of interest. The alternate member, having been appointed, shall serve in the case until a final decision has been made. The alternate member shall have the same voting rights as a regular member of the Board of Appeals.

   (c)   Removal from Office. Members of the Board shall be removable by Council for nonfeasance, malfeasance and misfeasance in office upon written charges and after a public hearing.

(Ord. 2001-9. Passed 12-10-01; Ord. 2009-5. Passed 11-9-09.)

   (b)   Meetings. Meetings shall be held at the call of the Chairperson and at such times as the Board may determine. All meetings by the Board shall be open to the public. The Board may declare any meeting, or part of any meeting, a study meeting to pursue matters of business, without comment or interruption from the public in attendance. A majority of the members of the Board of Appeals shall comprise a quorum for the purpose of conducting a meeting of the Board.

   (c)   Records. Minutes of all proceedings shall be recorded, which minutes shall contain evidence and dates relevant to every case considered, together with the votes of the members and the final disposition of each case. Such minutes shall be filed in the office of the Clerk and shall be made available to the general public.

   (d)   Secretary. The Clerk shall act as Secretary to the Board of Appeals, and all records of the Board's action shall be taken and recorded under his or her direction.

   (e)   Counsel. The Attorney shall act as legal counsel for the Board and shall be present at all meetings upon request by the Board.

(Ord. 89. Passed 4-10-72; Ord. 2001-9. Passed 12-10-01; Ord. 2009-5. Passed 11-9-09.)

   When a notice of appeal has been filed in proper form with the Board of Appeals, the Secretary of the Board shall immediately place said request for appeal on the calendar for hearing and shall cause notices to be given as follows:

   (a)   The Board of Appeals shall provide notice of the hearing in a newspaper of general circulation not less than 15 days before the date of the hearing. Notice shall be sent by mail or personal delivery to the owners of property for which the approval is considered. Notice shall also be given to all persons to whom real property is assessed within 300 feet of the property that is the subject of the request and to the occupants of all structures within 300 feet of the subject property regardless of whether the property or structures are located in the zoning jurisdiction. Notification need not be given to more than one occupant of a structure, except that if a structure contains more than one dwelling unit or spatial area owned or leased by different persons, one occupant of each unit or spatial area shall be given notice. If a structure contains more than four dwelling units or other distinct spatial areas owned or leased by different persons, notice may be given to the manager or owner of the structure, who shall be requested to post the notice at the primary entrance to the structure. Notice is considered to be given when personally delivered or when deposited during normal business hours for delivery with the United States postal service or other public or private delivery service. The notice shall be given not less than 15 days before the date the request will be considered. If the name of the occupant is not known, the term “occupant” may be used for the intended recipient of the notice. The notice shall describe the nature of the request, indicate the property that is the subject of the request to include street addresses if such addresses exist, state when and where the request will be considered and indicate where written comments will be received concerning the request.

   (b)   If the Board of Appeals receives a written request seeking an interpretation of the zoning ordinance or an appeal of an administrative decision, the Board of Appeals shall conduct a public hearing on the request. Notice shall be given as required under division (a) above. However, if the request does not involve a specific parcel of property, notice need only be published in a paper of general circulation and given to the person making the request. The Board may adjourn any meeting held in order to allow the obtaining of additional information or to provide further notice as it deems necessary.

(Ord. 89. Passed 4-10-72; Ord. 2009-5. Passed 11-9-09.)

   The Board of Appeals shall return a decision upon each case in writing within 60 days after a request or appeal has been filed, unless an extension of time is requested by a majority of the members of the Board. Any decision of the Board shall not become final until the expiration of five days from the date of entry of such order, unless the Board shall find the immediate effect of such order is necessary for the preservation of property or personal rights, and shall so certify on the record. Further appeal from the decision of the Board to the Eaton County Circuit Court shall be in accordance with the Zoning Act.

(Ord. 89. Passed 4-10-72; Ord. 2001-9. Passed 12-10-01; Ord. 2009-5. passed 11-9-09.)

   The concurring vote of a majority of the members of the Board of Appeals shall be necessary to reverse any order, requirement, decision or determination of the designated Village officer(s) appealed from or to decide in favor of the applicant on a matter upon which they are required to pass under this Zoning Code or to effect any variation in this Zoning Code.

(Ord. Unno. Passed 9-13-76; Ord. 2001-9. Passed 12-10-01.)

   (a)   Filing. Appeals to the Board of Appeals may be made by any person aggrieved, or by any officer, department or board of the Village. Any appeal from the ruling of the designated Village officer(s) concerning the enforcement of the provisions of this Zoning Code may be made to the Board within ten days after the date of the mailing of the Village officer's decision which is the subject of the appeal. Such appeal shall be filed with the Clerk. The appellant shall submit a clear description of the order, requirement, decision or determination for which the appeal is made and the grounds for the appeal on an application provided by the Clerk. The appellant may be required by the Board of Appeals to submit additional information to clarify the appeal. The Clerk shall transmit to the Board of Appeals copies of all papers constituting the record upon which the action appealed was taken.

(Adopting Ordinance)

   (b)   Stay. An appeal shall stay all proceedings in furtherance of the action appealed from, unless the designated County and/or Village officer(s) certifies to the Board after notice of appeal has been filed with him or her that by reason of facts stated in the certificate a stay would, in his or her opinion, cause imminent peril to life or property, in which case the proceedings shall not be stayed otherwise than by a restraining order, which may be granted by the Board or, upon application, by a court of record.

   (c)   Fees. A fee as established by Council shall be paid to the Secretary at the time of filing the application with the Board. The purpose of such fee is to cover, in part, the necessary advertisements, investigations and other expenses incurred by the Board in connection with the appeal.

(Ord. Unno. Passed 9-13-76; Ord. 2001-9. Passed 12-10-01.)

   The 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 Zoning Code, but does have power to act on those matters where this Zoning Code provides for an administrative review, interpretation, variance, exception or special approval permit as defined in this chapter.

   The 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 Officer or by any other official in administering or enforcing any provisions of this Zoning Code. The Board of Appeals may, so long as such action is in conformity with this Zoning Code, reverse or affirm, wholly or partly, or may modify the order, requirement, decision or determination appealed.

(Ord. 89. Passed 4-10-72; Ord. 2001-9. Passed 12-10-01.)

   The Board of Appeals shall have the power to:

   (a)   Interpret, upon request, the provisions of this Zoning Code in such a way as to carry out the intent and purpose of this Zoning Code;

   (b)   Determine the precise location of the boundary lines between zoning districts;

   (c)   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.

   (d)   Determine the off-street parking and loading space requirements of any use not specifically mentioned in Chapter 1288.

(Ord. 89. Passed 4-10-72.)

   The Board of Appeals shall have the power to authorize upon an appeal specific variances from such requirements as lot area and width regulations, building height and bulk regulations, yard and depth regulations, and off-street parking and loading space requirements, provided that all of the basic conditions listed herein and any one of the special conditions listed thereafter can be satisfied.

   (a)   Basic Conditions. Any variance granted from this Zoning Code shall meet the following basic conditions:

      (1)   It will not be contrary to the public interest or to the intent and purpose of this Zoning Code.

      (2)   It shall not permit the establishment within a district of any use which is not permitted by right within that zone district, or any use or dimensional variance for which a conditional use permit or a temporary use permit is required.

      (3)   It 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.

      (4)   It is not one where the specific conditions relating to the property are so general or recurrent in nature as to make the formulation of a general regulation for such conditions reasonably practical.

      (5)   It will relate only to property that is under the control of the applicant.

      (6)   It does not result from a condition created by the applicant.

      (7)   It does not confer on the applicant any special privilege that is denied by this Zoning Code to other lands, structures or buildings in the same district.

   (b)   Special Conditions. When all of the foregoing basic conditions can be satisfied, a variance may be granted when any one of the following special conditions can be clearly demonstrated:

      (1)   There are practical difficulties or unnecessary hardships which prevent carrying out the strict letter of this Zoning Code. These hardships or difficulties shall not be deemed economic, but shall be evaluated in terms of the use of a particular parcel of land.

      (2)   There are exceptional or extraordinary circumstances or physical conditions, such as narrowness, shallowness, shape or topography of the property involved, or to the intended use of the property, that do not generally apply to other property or uses in the same zoning district. Such circumstances or conditions shall not have resulted from any act of the applicant subsequent to the adoption of this Zoning Code.

      (3)   Such variance is necessary for the preservation of a substantial property right possessed by other properties in the same zoning district.

   (c)   Rules for Granting. The following rules shall be applied in the granting of variances:

      (1)   The Board may specify, in writing, such conditions regarding the character, location and other features that will, in its judgment, secure the objectives and purposes of this Zoning Code. The breach of any such condition shall automatically invalidate the permit granted.

      (2)   Each variance granted under the provisions of this Zoning Code shall become null and void unless:

         A.   The construction authorized by such variance or permit has been commenced within six months after the granting of the variance.

         B.   The occupancy of land, premises or buildings authorized by the variance has taken place within one year after the granting of the variance.

      (3)   No application for a variance which has been denied wholly or in part by the Board shall be resubmitted for a period of one year from the date of the last denial, except on the grounds of newly discovered evidence or proof of changed conditions found upon inspection by the Board to be valid.

(Ord. 89. Passed 4-10-72.)

   When, in its judgment, the public welfare will be served and the use of neighboring property will not be injured thereby, the Board of Appeals may hear and decide, in accordance with the provisions of this chapter, requests for exceptions and for decisions on special situations on which this chapter specifically authorizes the Board to pass. Any exception shall be subject to such conditions as the Board may require to preserve and promote the character of the district in question. The granting of a special exception shall in no way constitute a change in the basic uses permitted in the district affected, nor on the property wherein the exception is permitted. The Board may issue either temporary or conditional permits as special exceptions for the following land and structure uses.

   (a)   Temporary Permits. The granting of such special exceptions for temporary structures for dwelling purposes, including mobile homes, shall be subject to the following procedures and limitations:

      (1)   An application for a permit for the erection or movement of a temporary structure for dwelling purposes, including mobile homes, shall be made to the Board on a special form used exclusively for that purpose.

      (2)   The Board shall give due notice to the applicant and to all property owners as provided for in Section 1264.04(a).

      (3)   A temporary permit shall not be granted unless the Board finds adequate evidence that the proposed location of use will not be detrimental to property in the immediate vicinity and that the proposed water supply and sanitary facilities have been approved by the County Health Department.

      (4)   The Board may impose any reasonable conditions, including setbacks, land coverage, off-street parking, landscaping and other requirements deemed necessary to protect adjoining properties and the public welfare. The violation of any such condition shall automatically invalidate the permit.

      (5)   The permit issued shall clearly set forth the conditions under which the permit is granted and shall state that the proposed temporary dwelling structure is to be vacated upon expiration of a specific time limit not to exceed six months. No permit shall be transferable to any other owner or occupant.

   (b)   Conditional Permits. When conditions exist that are unique to a particular situation, a conditional permit may be issued with specific limitations imposed by the Board. The land or structure use may be permitted to be established and to continue in use as long as the conditions unique to the use exist. The permit may be cancelled when the conditions upon which the permit was issued cease to exist. The permit issued shall contain all the specified conditions under which continued use may be allowed. Conditional permits may be issued for the following uses:

      (1)   The Board may authorize a reduction, modification or waiver of any of the off-street parking or off-street loading regulations in Chapter 1288, when it can be demonstrated that circumstances of extreme practical difficulty exist that would unquestionably result in hardship to the applicant when a literal interpretation of the regulations is required. Hardship shall not be deemed economic, but shall be evaluated in terms of the use of a particular parcel of land. A hardship that is a result of any action of the applicant shall not be considered by the Board. Under all these circumstances, in no case shall the off-street parking or off-street loading standards be reduced by more than 25%.

(Ord. 2001-9. Passed 12-10-01; Ord. 2005-4. Passed 10-10-05; Ord. 2009-5. Passed 11-9-09.)

   The Board of Appeals shall determine whether a nonconforming building or structure may be expanded, except as otherwise provided in Chapter 1286, and whether a nonconforming use may be substituted for another nonconforming use.

(Ord. 2001-9. Passed 12-10-01.)

   If an appeal to the Board of Appeals involves a lot, structure or use for which a site plan approval is required, the appellant shall first apply for preliminary site plan approval as set forth in this Zoning Code. The Planning Commission shall review the site plan and shall determine the layout and other features required to obtain approval of the site plan. The Planning Commission shall then transmit a copy of the site plan and the Commission's findings thereon to the Board of Appeals. The Board shall, upon deciding on the appeal, return the plan and its decision to the Planning Commission for Commission action.

(Ord. 2001-9. Passed 12-10-01.)