(a)

When a proposed amendment, supplement, modification or change is initiated by a petition of any party with a legal interest in the property to be affected, it must be accompanied by a fee. The amount of the fee shall be established by resolution of the city council, and it is to be used to defray the expense of publishing the required notices and other related expenditures.

(b)

All amendments, supplements, modifications and changes not arising in the planning commission must be referred thereto for a public hearing and a written recommendation prior to any action thereon by the city council.

(c)

The planning commission shall at one or more of its meetings study and evaluate the proposed amendment, supplement, modification or change. The planning commission shall make a tentative report and hold at least one public hearing with proper notice as required by state law before submitting its final report to the city council. A summary of the comments submitted at the public hearing shall be transmitted with the report of the planning commission to the city council.

(d)

Once the city council has received and accepted the planning commission's report on the proposed amendment, supplement, modification or change, it may hold additional public hearings if it considers it necessary, or act upon the request without further hearings.

(e)

Whenever the city council shall receive a protest against a proposed amendment, fully signed by the owners of twenty (20) percent or more of the frontage proposed to be altered, or by the owners of twenty (20) percent or more of the frontage immediately in the rear thereof, or by the owners of twenty (20) percent of the frontage directly opposite the frontage proposed to be altered, such amendment shall not be passed except by two-thirds vote of the city council.

(f)

The planning commission and city council have recognized that, in certain instances, it would be advantageous to both the city and property owners seeking rezoning if a 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 subsection to provide an election to property owners in connection with the submission of petitions seeking the amendment of this zoning ordinance for approval of a rezoning with conditions pursuant to the Michigan Zoning Enabling Act, P.A. 110 of 2006, as amended.

(1)

A property owner shall have the option of making an election under this subsection in conjunction with the submission of a petition seeking a rezoning. Such election may be made at the time the application for rezoning is filed, or at a subsequent point in the process of review of the proposed rezoning. The election shall be made by filing an application conforming with this subsection for approval of a conditional rezoning that would establish site specific use authorization if the petition for conditional rezoning is granted. such election shall be to seek a conditional rezoning under the Michigan Zoning Enabling Act, P.A. 110 of 2006, as amended, which would represent a legislative amendment of the zoning ordinance.

(2)

In order to be eligible for the proposal and review of a conditional rezoning, 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 (i.e., rezoning conditions that may be incorporated into a conditional rezoning agreement and which will be graphically set forth in a conditional rezoning plan) which are, in material respects, equally or more strict or limiting than the regulations that would apply to the property under the proposed new zoning district, such as, but not limited to, the items set forth below:

a.

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 conditional rezoning plan.

b.

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 without limitation, units per acre, maximum usable floor area, hours of operation, and the like.

c.

Preservation of natural resources and/or features.

d.

Facilities to address drainage/water quality.

e.

Facilities to address traffic issues.

f.

Preservation of open space.

g.

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

h.

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

i.

Permissible uses of the property.

j.

Preservation of historic structures or sites to preserve the history of the City of Fraser.

k.

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

l.

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

m.

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

n.

Provide usable and contiguous open space amounting to a defined percentage of the site, ideally forty (40) percent or more, using the concept of clustering.

o.

Provide additional landscaping beyond ordinance requirements.

p.

Reclaim, re-use, or redevelop land, particularly where previous use of land caused significant development difficulties or blight.

q.

Install streetscape on an arterial road, beyond ordinance requirements, compatible with city guidelines concerning trees, streetlights, and landscaping.

r.

Install drainage improvements beyond ordinance requirements, using best management practices.

s.

Provide public art, sculpture, or monuments or other landmarks to enhance the city or identify city boundaries.

t.

Offer other conditions deemed important to the development by the applicant.

Rezoning conditions shall not authorize uses or developments of greater intensity or density that are not permitted in the district proposed by the rezoning, or permit uses or development expressly or implicitly prohibited in the conditional rezoning agreement.

(3)

An application for conditional rezoning shall not be presented to the planning commission for consideration unless it contains all of the following information:

a.

A completed application signed by the applicant and the owner of the property which is the subject of the request (if different), accompanied by the application fee.

b.

Proof that the applicant has a legal interest in the property sufficient to submit the application (deed, land contract, option agreement, purchase agreement, etc.)

c.

The rezoning conditions proposed by the applicant.

d.

A proposed conditional rezoning plan, which will serve as a preliminary plan submitted in connection with the conditional rezoning request, and which shall not replace the site plan review, special land use approval review, plat review and approval, condominium plan review, or other development procedures applicable to the proposed development under the zoning ordinance or other applicable ordinances or regulations.

e.

A list of any special land use approvals required for the proposed development or use of the property, as city council has the authority to consider, approve, or deny any special land uses proposed under the conditional rezoning as part of its review and approval of the conditional rezoning agreement.

f.

A list of any variances or temporary uses needed for the proposed development or use of the property, as city council has the authority to consider, approve, or deny any variances or temporary uses needed for the development or use proposed under the conditional rezoning as part of its review and approval of the conditional rezoning agreement.

g.

A legal review fee deposit in an amount estimated by the city attorney to be sufficient to cover the cost of legal review of the conditional rezoning agreement by the city attorney. The applicant will be required to reimburse the city for the actual amount of attorney fees expended. If the deposit exceeds the actual legal fees expended, the surplus will be returned to the applicant. If the actual legal fees expended exceed the deposit, the applicant will be required to pay the deficiency to the city treasurer prior to the conditional rezoning being placed on a city council agenda for consideration.

(4)

The conditional rezoning process shall include the following:

a.

Prior to the time of making application for a conditional rezoning, the applicant shall schedule a pre-application submission meeting with the city manager, the city planner, the city engineer, the city building official, and the city attorney, or their designees, for a preliminary review of the application for conditional rezoning and so that the applicant has a thorough understanding of the process. The applicant shall pay a non-refundable fee, established in the city's approved fee schedule, for the city's costs and expenses incurred for this meeting at the time the applicant submits its request for the pre-application submission meeting.

b.

A property owner may submit an application for approval of a conditional rezoning at the time of making application for amendment of this zoning ordinance seeking a rezoning of property, or at a later time during the process of the city considering such rezoning, after first participating in the preapplication submission meeting required in the preceding subsection.

c.

The application, which may be amended during the process, shall include a conditional rezoning 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.

d.

The proposed conditional rezoning shall be noticed for public hearing before the planning commission as a map amendment to the zoning ordinance in accordance with this section and applicable provisions of the Michigan Zoning Enabling Act, P.A. 110 of 2006, as amended.

e.

The planning commission shall conduct a public hearing, and then deliberate and make a recommendation to the city council on the proposed conditional rezoning.

f.

Upon receipt of the recommendation of the planning commission, the applicant or its counsel shall prepare a draft of a conditional rezoning agreement in recordable form for review and approval by the city attorney. The conditional rezoning agreement shall include the rezoning conditions, the conditional rezoning plan, and other terms and conditions mutually acceptable to the applicant and the city.

g.

After the city attorney approves the draft of the conditional rezoning agreement, the conditional rezoning application, the conditional rezoning plan, the draft of the conditional rezoning agreement, and the planning commission's recommendation shall be submitted to the city council for consideration of the conditional rezoning and the conditional rezoning agreement and conditional rezoning plan.

h.

At the city council meeting to consider the conditional rezoning agreement and the related map amendment to the zoning ordinance, the city council shall have authority to take public comment and review, approve, or deny any special land use and any variance(s) or temporary uses needed for the proposed development or use of the property, and the city council's determination(s) may not be overridden or amended by any board, commission, or personnel of the city unless otherwise provided in this section.

i.

The applicant shall have the burden of demonstrating that the following requirements and standards are met by the conditional rezoning, conditional rezoning agreement, and conditional rezoning plan:

1.

The conditional rezoning, conditional rezoning agreement, and conditional rezoning plan will result in development of the property or establishment of a land use that (a) is beneficial to the applicant, the city, and the public, (b) will not be detrimental to neighboring properties or the public, (c) will enhance the area in a way that would be unlikely to be achieved or would not be assured in the absence of the use of conditional rezoning, and (d) is in the public interest, considering the benefits reasonably expected to accrue from the proposal as compared with foreseeable detriments associated with it.

2.

The discretionary standards set forth in this zoning ordinance for approval of a special land use have been met.

3.

The standards for any variance or temporary use set forth in this zoning ordinance have been met.

4.

The applicant may voluntarily propose and/or agree to additional conditions in order to ensure that the standards are met; however, the city may not unilaterally require or impose additional conditions as a condition of approval.

j.

If the city council approves the conditional rezoning, conditional rezoning agreement, and conditional rezoning plan, the zoning district classification of the rezoned property shall be changed to the zoning 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 plus a reference to "CR" (for example, the district classification for the property might be CN—Commercial Neighborhood with CR, Conditional Zoning, with a zoning map designation of CN/CR) and use of the property so classified and approved shall be restricted to the permission granted in the conditional rezoning agreement, and no other development or use shall be permitted.

k.

After the conditional rezoning has been approved, the use of the subject property shall comply with all regulations governing the 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, together with the more restrictive requirements set forth in the conditional rezoning agreement and the conditional rezoning plan. In the event of inconsistency between these requirements, the stricter requirements of the conditional rezoning agreement and conditional rezoning plan shall control.

(5)

The conditional rezoning agreement shall contain, at a minimum, the following terms:

a.

The conditional rezoning was proposed by the applicant to induce the city to grant the rezoning.

b.

The rezoning conditions and conditional rezoning agreement are authorized by, and in compliance with, all applicable state and federal laws and constitutions.

c.

The conditional rezoning agreement is valid and was entered into on a voluntary basis, and represents a permissible exercise of authority by the city.

d.

The property in question shall not be developed or used in a manner inconsistent with the conditional rezoning plan and conditional rezoning agreement, unless modified by mutual agreement of the property owner and the city, except that the property may still be developed or used in strict conformance with the zoning of the property as it existed immediately preceding the conditional rezoning approval.

e.

The property owner agrees to continuously operate and maintain the development or use in compliance with all of the terms and conditions of the conditional rezoning agreement and conditional rezoning plan, and failure to satisfy such terms and conditions shall constitute a separate violation of the zoning ordinance and a breach of the conditional rezoning agreement.

f.

The property owner agrees to comply with any terms and conditions imposed with respect to approval of any special land use, variance(s), or temporary use.

g.

The rezoning conditions and other terms and conditions of the conditional rezoning agreement and conditional rezoning plan shall not be altered or added to except in an amendment executed by the parties and recorded with the Macomb County Register of Deeds.

1.

Substantial amendments to the conditional rezoning agreement and conditional rezoning plan shall be proposed, reviewed, and approved as a new case in the same manner as the original conditional rezoning proposal.

2.

Minor changes within the scope authorized by the conditional rezoning agreement may be approved by the city planner.

h.

Unless extended by the city council for good cause, the conditional rezoning shall expire following a period of two (2) years from the effective date of the conditional rezoning, unless construction on the development of the property pursuant to the required permits or establishment of the approved use has commenced as evidenced by approvals issued by the city within such two-year period and proceeds diligently and in good faith as required by ordinance to completion, which time period may be extended by the city for good cause upon request of the applicant received prior to the expiration of the time period.

i.

If the property owner or applicant fails to commence construction on the development of the property or establish the approved use within the required time period (including any extensions granted by the city), then the zoning of the property shall revert to its former zoning classification. Rezoning of the property back to the former zoning classification of the property (i.e. reversion) shall be done by the city in accordance with the rezoning amendment procedures set forth in the Michigan Zoning Enabling Act, P.A. 110 of 2006, as amended, and the provisions of the zoning ordinance. Until such time that the reverted zoning classification of the property becomes effective and is recorded with the Macomb County Register of Deeds, no development shall be undertaken or permits for development issued.

j.

Where deemed appropriate by the city council in order to guarantee performance and to ensure that the city does not incur any costs associated with non-performance, the city may require that the applicant or property owner undertaking the development or establishing the use under the conditional rezoning provide a letter of credit or cash deposit in an amount specified in the city's approved fee schedule at the time development or establishment of the use begins.

k.

The conditional rezoning approval and conditional rezoning agreement shall be binding upon and inure to the benefit of the property owner and city, and their respective heirs, successors, assigns, and transferees.

l.

The map amendment to the zoning ordinance implementing the conditional rezoning shall be completed in compliance with the requirements of the Michigan Zoning Enabling Act, P.A. 110 of 2006, as amended. If the conditional rezoning is declared invalid by a court of competent jurisdiction, or becomes void for any reason, no development shall be undertaken or permits for development issued until a new zoning district classification of the property has been established, except for development that is in strict conformance with the zoning of the property prior to the conditional rezoning.

m.

Each of the requirements and conditions in the conditional rezoning 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 conditional rezoning, taking into consideration the changed zoning district classification and the specific development or land use authorized by the conditional rezoning.

n.

If the development is undertaken or the use established on the property subject to the conditional rezoning which does not comply with the terms and conditions of the conditional rezoning agreement and conditional rezoning plan, such development or use shall constitute a nuisance per se. In such instances, the city may issue a stop work order or cease and desist order relative to such development or use, and pursue any available lawful remedy. Until curative action is taken to bring the property into compliance with the conditional rezoning agreement, the city may withhold, or following notice, revoke permits and certificates, in addition to or in lieu of other lawful action to achieve compliance.

o.

The property owner or person operating the development or use established under the conditional rezoning shall be responsible for reimbursing the city for attorney fees incurred by the city in preparing or negotiating the conditional rezoning agreement, which sums may be directly retained from the deposit(s) paid by the owner or applicant in accordance with the requirements of the zoning ordinance, and for enforcing the terms of it in the event that the property owner or person operating the development or use fails to comply with its terms and conditions.

p.

The conditional rezoning shall be effective within seven (7) days after publication of a notice of adoption of the zoning map amendment to the zoning ordinance and recording of the conditional rezoning agreement with conditional rezoning plan attached with the Macomb County Register of Deeds, unless a different effective date is set forth in the conditional rezoning agreement. Any amendments shall be in writing, and shall be completed in the same manner as the original conditional rezoning and zoning map amendment.

(Ord. No. 279, art. 17, 12-12-96; Ord. No. 391, § 4, 10-11-18)

Editor's note— Conditional rezoning, MCL 125.3405