A)

The zoning board of appeals performs its duties and exercises its powers as provided in the Michigan Zoning Enabling Act (PA 110 of 2006), as amended.

B)

Membership and terms. The board shall consist of seven members, all appointed by the mayor with the consent of the city council. The ZBA consists of at least two officers: the chair and vice-chair.

1)

Length of term. Appointments shall be for a period of three years except for a member serving because of their membership on the city council whose term shall be limited to the time they are a member of city council. When members are first appointed, appointments may be for less than three years to provide for staggered terms. A successor shall be appointed not more than one month after the term of the preceding member has expired.

2)

City council member. One regular member may be a member of the city council but shall not serve as chair of the zoning board of appeals. An employee or contractor of the city may not serve as a member of the zoning board of appeals.

3)

Alternate members. The mayor, with the consent of the city council, may appoint not more than two alternate members to the zoning board of appeals. An alternate member may be called as specified to serve as a member of the zoning board of appeals in the absence of a regular member, if the regular member will be unable to attend one or more meetings. An alternate member may also be called to serve as a member for the purpose of reaching a decision on a case in which a regular member has abstained for reasons of conflict of interest. The alternate member appointed shall serve on the case until a final decision is made. The alternate member shall have the same voting rights as a regular member of the zoning board of appeals.

4)

Removal. A member of the zoning board of appeals may be removed by the city council for misfeasance, malfeasance, or nonfeasance in office upon written charges and after a public hearing. A member shall disqualify themself from a vote in which the member has a conflict of interest. Failure of a member to disqualify themself from a vote in which the member has a conflict of interest constitutes malfeasance in office.

5)

Vacancy. A vacancy on the zoning board of appeals shall be filled for the remainder of the unexpired term in the same manner as the original appointment.

6)

Majority needed for business. The zoning board of appeals shall not conduct business unless a majority of the regular members of the zoning board of appeals are present.

7)

Election of officers. The first meeting of the year with business on the agenda must also host an election of officers. Members must elect a chair, a vice-chair, and such other officers as it may deem necessary for the ensueing year. The terms of all officers are for one year and officers are eligible for reelection.

(Ord. of 11-13-2023)

The zoning board of appeals has the following jurisdiction and powers:

A)

Appeal of administrative decision. To hear and decide appeals from any order, requirement, decision, or determination made by the zoning administrator. The board may reverse or affirm wholly or partly, or may modify such order, requirement, decision, or determination, and to that end, has the power to direct the issuance of a permit.

B)

Appeal of a planning commission decision. An appeal from the planning commission must be taken to board if a written appeal is filed within 30 days after the planning commission's decision. Exceptions to this power is the approval or denial of a special land use or planned residential and planned development districts by city council; those decisions are final and not appealable.

C)

Interpretation. To act upon all questions as they may arise in the administration and enforcement of this zoning ordinance, including interpretation of the zoning map, the location of district boundaries on the zoning map, and text provisions.

D)

Variances. There are two types of variances: Dimensional variances (also considered non-use variances) and use variances:

1)

Dimensional or non-use variances. Where there are practical difficulties or unnecessary hardship in the way of carrying out the strict letter of this zoning ordinance, the board has the power in passing upon appeals to vary or modify any of its rules, regulations, or provision so that the spirit of this zoning ordinance is observed, public safety secured, and substantial justice done. The board does not have the authority to make changes in the zoning ordinance.

2)

Use variances. The zoning board of appeals does not authorize use variances.

3)

Variance required due to condemnation by public authority. A variance may be applied for and granted under section 4 of the Uniform Condemnation Procedures Act, Public Act No. 87 of 1980 (MCL 213.54). Such a variance shall not be a use variance.

E)

Limitations on authority. Nothing herein contained shall be construed to give or grant to the board the power or authority to alter or change the zoning ordinance or the zoning map, such power and authority being reserved to the city council in the manner provided by law. The approval or denial of special uses, rezonings, conditional rezonings and planned unit developments may not be appealed to the zoning board of appeals.

(Ord. of 11-13-2023)

The board may fix rules and regulations governing its procedures as it deems necessary.

(Ord. of 11-13-2023)

A)

All meetings of the board are held at the call of the chair and at such other times as a quorum of the board may determine. In the absence of the chair, the acting chair, e.g. vice chair, may administer meetings.

B)

All hearings are open to the public. The city must keep minutes of the board's proceedings, showing the vote of each member in question, or if absent, or failing to vote, indicating such fact.

C)

The board has the power to subpoena and require the attendance of witnesses, administer oaths, compel testimony, and require the production of books, papers, files, and other evidence pertinent to the matters before it.

(Ord. of 11-13-2023)

A majority vote of those present and voting is required for a motion of approval or denial, in addition to reversing an order or decision.

(Ord. of 11-13-2023)

A)

Appeal of administrative decision. An appeal to an administrative decision should be approved if the ZBA finds that the order, requirement, decision or determination was arbitrary or capricious, based upon an erroneous finding of a material fact, constituted an abuse of discretion, or based upon an erroneous interpretation of the zoning ordinance.

B)

Interpretation. The ZBA must make interpretations to the zoning ordinance and map in such a way as to preserve and promote the character of the zoning district in question and carry out the intents and purposes of the zoning ordinance and master plan.

C)

Dimensional variances. To authorize a non-use or dimensional variances from the strict applications of the provisions of this zoning ordinance, each of the following criteria must be met. A standard can be found not applicable, but no standard can be in conflict with another standard.

1)

Practical difficulty standards.

a)

The variance request is due to unique circumstances of property. Examples of unique circumstances include properties with odd dimensions or unusual easements. Unique circumstances do not include business, family or financial reasons.

b)

The variance request is due to unique circumstances of property and is not shared by neighboring properties in the same zone. If the circumstances for which a variance is warranted are shared among numerous properties in the same zone, then the variance request should be denied. It may be better to consider amending the zoning ordinance. For instance, a historic portion of a community developed around the turn of the 20th century might have 50-foot lots throughout a neighborhood of single-family homes. If this neighborhood is subject to the same zoning standards as neighborhoods developed later with 70-foot-wide lots, projects not requiring a dimensional variance in the newer neighborhood will most likely require a variance in the historic neighborhood. The proper solution is to create a new zoning district for the historic neighborhood that is more reflective of the existing character.

c)

The problem is not self-created, either by the applicant or an applicant's predecessor. The proper interpretation is to ask whether the applicant took some affirmative action that created the need for the variance, such as making an unusual land division (shape), filling the entire building envelope so that a porch must necessarily extend into the setback area, digging a pond, etc. A practical difficulty cannot be self-created (Norman Corp v. City of East Tawas, 263 Mich App 194 (2004)). Being "self-created" includes actions of the current property owner and actions of all previous owners.

At the same time, the court of appeals recognizes that merely purchasing property with the knowledge of ordinance limitations does not preclude someone from apply for (and receiving) a variance (City of Detroit v. City of Detroit BZA, 326 Mich App 248 (2018)). The key is whether a property owner— present or past, took affirmative action to alter the property counter to the controlling ordinance at the time. The purchase of a unique lot, even with knowledge of the current ordinance, should not be held against a new owner. This standard is inappropriately applied if a ZBA member sees the presence of the applicant before the ZBA as a self-created situation. This mindset would lead to the conclusion that all variance requests are self-created. It is not an applicant's desire for a variance that is a self-created problem; it is an applicant's previous action to fill the buildable envelope with structures, or divide the parcel into an unusual shape that is the self-created problem.

d)

Strict compliance with area, setbacks, frontage, height, bulk, or density would unreasonably prevent the landowner from using the property for a permitted purpose and would thereby render the conformity unnecessarily burdensome for other than financial reasons. Figure out if there is a way to accomplish the same purpose without a variance even if it will be more inconvenient or more expensive for the applicant. For example, if the design for an addition proposed by the applicant can be changed such that a variance is no longer needed, the variance request should be denied. A variance is granted for circumstances unique to the property (e.g. odd shape), not those unique to the property owner (e.g. large family).

e)

The variance would provide substantial justice to the applicant, as well as to other property owners in the district. A reduced relaxation would give substantial relief and be more consistent with property design and rights in the neighborhood. There are valid health and safety reasons for zoning setbacks, but when these regulations treat an applicant unfairly in relation to unique aspects of the land they should be relaxed. For example, if all property owners in a neighborhood enjoy a front porch, yet the applicant is not able to construct a front porch because of their property's unique circumstance (e.g. setbacks and unusual easement), then a variance should be granted. This is because strict compliance of the zoning ordinance would prevent the applicant from using the property for a permitted use: a front porch.

f)

No lesser variance options are practical. If a lesser variance than requested would provide substantial justice to the property owner, the lesser variance should be considered. For example, if the request is to encroach into the setback by four feet, but a two-foot encroachment would allow the owner to use their property for the permitted use then the appeals board must not approve a greater variance than minimally necessary. Another example, if the property owner wants to enjoy the right to own a garage, but would like a four-car garage, it may be reasonable for the ZBA to allow a variance for a one-car garage.

2)

Health, safety, well-fare standards.

a)

Zoning ordinance and master plan. The variance will not adversely affect the purpose of the zoning ordinance or the master plan.

b)

Adjacent property and surrounding neighborhood. The variance will not be of substantial detriment to the adjacent property, will not alter the essential character of the neighborhood and will not dimmish or impair established property values within the surrounding area.

c)

Community of Eastpointe. The variance will not impair the public health, safety, comfort, morals, or welfare of the community.

d)

Nuisances. The variance will not create a nuisance such as light, air, sound and odor pollution, traffic congestion, or fire and flood damage.

D)

Use variance. No variance can be made in the use of land, and the board does not consider use variance requests.

E)

Exception. The granting of a variance for minimum lot size (square feet) and lot width (feet) is not required when the subject lot is a lot of record, and the board has determined the property to be a buildable zoning lot.

(Ord. of 11-13-2023)

A)

Application. The appellant shall file an application with the building department. A fee in the amount set by resolution of the city council shall be paid.

B)

Required information. An application for an appeal shall specify the grounds for the appeal by submitting the required information specified on the application form. Submittal information includes, but is not limited to:

1)

The plot plan, sketch plan or site plan for a project that was used to determine the need for a variance.

2)

The specific section from which a variance is being sought, an interpretation is being requested or is the subject of an administrative review.

3)

For dimensional variances, a signed and sealed survey prepared by a licensed professional surveyor shall be submitted that clearly illustrates the existing conditions, proposed improvements, dimensioned location of required setback or standard, the dimensioned location of existing/proposed improvement and the needed variance.

C)

Stay of proceedings. An appeal shall stay all proceedings in furtherance of the action unless the zoning administrator certifies to the zoning board of appeals, after notice of appeal is filed that a stay would, in the opinion of the building official, cause imminent peril to life or property. In such a case, the proceedings shall not be stayed other than by a restraining order which may be granted by the circuit court.

D)

Public hearing required. Following receipt of a written request to appear before the zoning board of appeals, the zoning administrator shall fix a reasonable time for a public hearing and give required notice.

E)

Representation. At the hearing, the applicant shall appear in person or may be represented by agent or attorney.

(Ord. of 11-13-2023)

A)

ZBA decision and appeal of determination. The decision of the zoning board of appeals shall be final.

1)

Approval with conditions.

a)

The board may impose reasonable conditions in conjunction with the approval of a variance. The conditions may include conditions necessary to ensure that public services and facilities are adequate, 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 meet the requirements of the Michigan Zoning Enabling Act (PA 110 of 2006), as amended.

b)

Conditions must be recorded in the record of the approval action and remain unchanged except upon the mutual consent of the board and the landowner.

2)

Denial. A party aggrieved by the decision of the board may appeal that decision to the county circuit court as provided in sections 605 and 606 of the Zoning Enabling Act (PA 110 of 2006), as amended.

B)

Effective approval period. No order of the zoning board of appeals permitting the erection or alteration of a building shall be valid for a period longer than one 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. The zoning board of appeals may grant an extension of the approval, provided that the applicant demonstrates that construction has been delayed for reasons beyond their control, and that construction is likely to commence within a timeframe deemed reasonable by the zoning board of appeals. The zoning board of appeals shall be under no obligation to grant any extension. Any determination by the zoning board of appeals on an administrative appeal or interpretation shall take immediate effect.

C)

Resubmittal. No request or appeal which the zoning board of appeals has denied wholly or in part may be resubmitted to or reheard by the zoning board of appeals for a period of one year following the effective date of the decision by the zoning board of appeals, except where the zoning board of appeals determines there is valid new evidence that was unavailable to the applicant at the time of the prior hearing or a substantial change in circumstances. Applications for a rehearing shall be in writing and shall be subject to the same rules and requirements as an original request.

(Ord. of 11-13-2023)