Hamtramck City Zoning Code
ADMINISTRATION
§ 155.020 POWERS AND DUTIES OF THE CODE GENERAL.
(A) General. This section establishes the duties and responsibilities for the zoning code official and other officials and agencies, with respect to the administration of this chapter. The zoning code official or his or her designee shall be referred to hereafter as "the code official."
(B) Appointment. The chief executive officer of the city shall appoint the code official whom shall be charged with the enforcement of this chapter.
(C) Deputies. The code official may appoint such number of technical officers and other employees as shall be authorized from time to time by the Common Council. The code official shall be permitted to deputize such employees as may be necessary to carry out the functions of this chapter.
(D) Enforcement. Unless otherwise provided, the code official shall apply and enforce the provisions of this chapter. An appeal of an application of this chapter by the code official shall be submitted to the Zoning Board of Appeals, which, unless otherwise provided, may interpret this chapter, and such interpretation shall be considered final.
(E) Administrative reviews and permits.
(1) Certificate of compliance. The code official shall receive all applications for certificates of compliance and coordinate and perform the necessary inspections.
(2) Review of zoning permits. The code official shall be authorized to undertake reviews, make recommendations, and grant approvals as set forth in this chapter. All applications for building and zoning permits and amendments thereto shall be submitted to the code official for review and approved before permit issuance. Each application shall include a set of plans and all data necessary to show that the requirements of this chapter are met.
(3) Site plan reviews. The code official shall receive all applications for site plan review and prepare submittals for review by the Common Council.
(4) Special land use permits. The code official shall receive all applications for special land uses as shall be permitted or approved as required by this chapter and prepare submittals for review by the Plan Commission.
(5) Variance applications. The code official shall receive all applications for use variances and dimensional variances as required by this chapter and prepare submittals for review by the Zoning Board of Appeals.
(F) Comprehensive Plan. The code official shall assist the Commission in the development of the Comprehensive Plan.
(G) Cooperation of other officials and officers. The code official shall be authorized to request, and shall receive so far as is required in the discharge of the duties described in this chapter, the assistance and cooperation of other officials and officers of the city.
(H) Liability. The code official, acting in good faith and without malice in the discharge of the duties described in this chapter, shall not be personally liable for any damage that may accrue to persons or property as a result of an act or by reason of an act or omission in the discharge of such duties. A suit brought against the code official or any employee because such act or omission performed by the code official or the employee in the enforcement of any provisions of such codes or other pertinent law or ordinances implemented through the enforcement of this code or enforced by the enforcing agency shall be defended by the city until final termination of such proceedings, and any judgment resulting therefrom shall be assumed by the city. This subchapter shall not be construed to relieve from or lessen the responsibility of any person owning, operating, or controlling any building or parcel of land for any damages to persons or property caused by defects, nor shall the enforcing agent or the city be held as assuming any such liability by reason of the reviews or permits issued under this chapter.
(Ord. 497, passed 2-3-2004; Am. Ord. 523, passed 6-13-2006; Am. Ord. 2011-7, passed 12-13-2011; Am. Ord. 2019-02, passed 10-8-2019; Am. Ord. 2020-28, passed 3-3-2020; Am. Res. 2021-46, passed 4-13-2021)
§ 155.021 PERMITS AND APPROVALS.
(A) General. All departments, officials, and employees who are charged with the duty or authority to issue permits or approvals shall not issue any permit or approval for uses or purposes when the permit or approval would be in conflict with this chapter. No permit shall be issued to any person who is in default to the city. By way of illustration, a person in default could owe the city income tax, property tax, water bill, or a business license fee. If a written payment plan has been accepted by the chief executive officer, the code official shall issue a conditional permit if all other provisions of this chapter are met. Any permit or approval, if issued in conflict with this chapter, shall be null and void.
(B) Permits.
(1) Conformance to zoning. No use, building, or structure, whether publicly or privately owned, shall be constructed or authorized until the location and extent thereof conform to the approved plan and the code official has issued the proper permits. Specifically, a zoning permit shall be obtained before the construction, physical development, or razing of a proposed new or expanded use, structure, or building; the restoration and structural improvement of any existing use or structure other than normal repairs and minor improvement; or a change of one use to any other use. When a building permit is required, zoning approval shall be an eligibility requirement or prerequisite for such permit.
(2) Expiration or cancellation. Each license, permit, or approval issued shall expire after 180 days if no work is undertaken or such use or activity is not established, unless a different time of issuance of the license or permit is allowed in this chapter, or unless an extension is granted by the Zoning Board of Appeals before expiration. Failure to comply fully with the terms of any permit, license, or approval shall be permitted to be grounds for cancellation or revocation. Action to cancel any license, permit, or approval shall be permitted to be taken on proper grounds by the code official. Cancellation of a permit or approval by the Commission or Board shall be permitted to be appealed in the same manner as its original action.
(3) Validity of licenses, permits, approvals, and variances. The code official shall require that the development or use in question before the Commission or Board proceed only under the terms of such license, permit, approval, or variance including any requirements or conditions established as a condition of issuance by the Commission or Board. Except as specifically provided for in this chapter and conditions of approval, the securing of one required review or approval shall not exempt the recipient from the necessity of securing any other required review or approval.
(4) Approval for and availability of essential services. All projects that require the additional use of new facilities or essential services, such as sewers, storm drains, fire hydrants, potable water, public streets, street lighting, and similar services, shall obtain such approval as required by the agency providing such services before project approval and permit issuance. Nonavailability of essential services shall be permitted to be grounds for denying permits for additional development until such services are available. The city is not obligated to extend or supply essential services if capacity is not available. If capacity is available, the extension of such services shall be by and at the cost of the developer. All service extensions shall be designed and installed in full conformance with the city's standards for such service, and shall be subject to review, permit, and inspection as required by other policies or ordinances of the city.
(C) Certificate of compliance required. A person shall not occupy a new structure, except an owner-occupied dwelling unit, or lot, or occupy an existing structure or lot until the code official has issued a certificate of compliance. If a change in ownership occurs in an established business, a certificate of compliance shall be required. Before a certificate of compliance is issued, the code official and other interested city officials and departments shall perform a thorough inspection intended to insure that both the structure and the use comply with all zoning requirements and any conditions previously imposed. After inspection and consultation with other interested city officials and departments, the code official shall:
(1) Issue the certificate of compliance if all requirements of this chapter are satisfied and all conditions, if any, have been met;
(2) Deny the certificate of compliance if all of the requirements of this chapter are not satisfied and all conditions, if any, have not been met, with such denial being in writing and clearly identifying the reasons for denial and imposing a time frame for compliance;
(3) Issue a temporary certificate of compliance for no more than 60 days, if in the opinion of the code official the reasons for possible denial are minor and can be addressed within a reasonable period of time; the temporary certificate of compliance shall have conditions imposed by the code official.
(D) Fees. A fee for services shall be charged. All fees shall be established by resolution of the Common Council during the adoption of the annual budget. Failure to apply for the appropriate zoning permit and paying the appropriate fee shall result in a municipal civil infraction and a doubling of the permit fee.
(Ord. 497, passed 2-3-2004; Am. Ord. 523, passed 6-13-2006; Am. Ord. 2011-7, passed 12-13-2011; Am. Ord. 2019-02, passed 10-8-2019; Am. Ord. 2020-28, passed 3-3-2020; Am. Res. 2021-46, passed 4-13-2021)
§ 155.022 PERFORMANCE GUARANTEE.
(A) Authority. To ensure compliance with this chapter and any conditions imposed under this chapter, in authorizing any zoning permit, special land use approval, or variance, the body or official charged with administering, as designated by this chapter, the respective request may require that a cash deposit, certified check, irrevocable bank letter of credit, or surety bond in an amount authorized by this chapter be deposited with the City Treasurer to insure faithful completion of the improvements. The performance guarantee shall be deposited when the permit is issued authorizing the activity or project. This section shall not be applicable to improvements for which a cash deposit, certified check, irrevocable bank letter of credit, or surety bond has been deposited under the Land Division Act, Act No. 288 of the Public Acts of 1967, as amended, being M.C.L.A. §§ 560.101 to 560.293.
(B) Amount of bond. Unless otherwise specified in this chapter, the Common Council shall by resolution during adoption of the annual budget establish a guideline for the amount of bonds that the Common Council deems adequate for the protection of the city and its inhabitants.
(C) Return of performance bond. Upon the satisfactory completion of specific requirements as attested to by the code official, the City Treasurer shall be authorized to return any improvement or performance bond without interest that may pertain to the specific improvement.
(D) Withholding and partial withholding of performance bond. When the project is not satisfactorily completed, the code official may direct the City Treasurer not to return all or part of any bond; but to apply the bond or part thereof to the project in question. If any action begin and fail to meet full completion based on the approve site plan, or if the project area is reduced in size and action is only partially completed, the code official shall determine the amount of the bond or bonds to be returned to the applicant, without interest, and the amount be applied to the improvements.
(Ord. 497, passed 2-3-2004; Am. Ord. 523, passed 6-13-2006; Am. Ord. 2011-7, passed 12-13-2011; Am. Ord. 2019-02, passed 10-8-2019; Am. Ord. 2020-28, passed 3-3-2020; Am. Res. 2021-46, passed 4-13-2021)
§ 155.023 PLAN COMMISSION.
(A) General. This section addresses the duties and responsibilities of the City Plan Commission, hereafter referred to as "the Commission", and other officers and agencies, with respect to the administration of this chapter.
(B) Establishment of the Commission. The City Plan Commission is hereby established under the Municipal Planning Act, Act No. 285 of the Public Acts of 1931, being M.C.L.A. §§ 125.31 to 125.45. The Commission shall consist of the Mayor of the city, and one member of the Common Council to be selected by the Common Council as members ex officio, and seven other persons who shall be appointed by the Mayor as provided in this chapter. All ex officio members, appointed under this chapter, shall have full voting rights.
(C) Terms of office.
(1) Appointment. The terms of the ex officio members shall correspond to their respective official tenures, except that the term of the administrative official selected by the Mayor shall terminate with the term of the Mayor. All Commissioners who are members of the Plan Commission established by Ordinance No. 194 upon the effective date of this chapter shall serve until their term expires. The appointing authority shall not make an appointment or reappointment until the term of the appointed member has expired. The term of each appointed member shall be three years or until his or her successor takes office. The terms of office of each appointed member shall thereafter expire on January 1 in the year of expiration.
(2) Removal from office. Upon written charges and after a public hearing, the Mayor may remove a member, other than the member selected by the Common Council, for inefficiency, neglect of duty, or malfeasance in office. The Common Council may for like cause remove the member selected by the Common Council upon written charges and after a public hearing.
(3) Vacancies. A vacancy on the Commission occurring otherwise than through the expiration of term shall be filled within 30 days for the unexpired term by the Mayor in the case of a member selected or appointed by the Mayor, and by the Common Council in the case of the member appointed by the Common Council.
(D) Membership requirements. An appointed member shall be a resident of the city for not less than 30 days before his or her appointment and shall maintain residency during his or her term; if an appointed member discontinues his or her residency within the city, the Mayor shall declare the position vacant and shall appoint another qualified person within thirty days. An appointed member shall not hold another municipal office except that one appointed member may be a member of the Zoning Board of Appeals or a member of a joint fire administrative board.
(E) Compensation. An appointed member of the Commission may be compensated at a rate to be determined by the Common Council during its adoption of the annual budget and may be reimbursed for pre-approved expenses related to performing his or her duties.
(F) Powers and duties of the Commission.
(1) Meetings. All meetings of the Commission shall be conducted under the Open Meetings Act, Act No. 267 of the Public Acts of 1976, being M.C.L.A. §§ 15.261 to 15.275. The Commission shall meet annually in the first quarter of the calendar year for the purpose of electing officers and adopting rules for transaction of business. The Chairman may call special meetings. The Mayor shall be empowered to set the date and time of the annual meeting.
(2) Quorum and votes required. The Commission shall not conduct business unless a majority of its members are present. Unless otherwise provided in this chapter, the concurring vote of a majority of its voting members shall be required to pass on any decision, approval, or determination that the Commission may make under this chapter. Any three members of the Commission shall have the power at any meeting to schedule a public hearing.
(3) Records to be public. The City Clerk shall keep a record of the Commission's resolutions, transactions, findings, and determinations, which record shall be a public record subject to the Freedom of Information Act, Act No. 442 of the Public Acts of 1976, being M.C.L.A. §§ 15.231 to 15.246.
(4) Chairman. The Commission shall elect its Chairman from amongst the appointed members and create and fill such other offices as the Commission may determine. The term of the Chairman shall be one year, with eligibility for reelection.
(5) Annual report. By January 31 of each year, the Commission shall make an annual report of the activities of the Commission of the previous calendar year and forward recommendations to the Common Council.
(6) Comprehensive plan, subdivision of land, and approval or disapproval of plats. The Commission shall be vested with all powers vested in a municipal planning commission under the Municipal Planning Act, Act No. 285 of the Public Acts of 1931, being M.C.L.A. §§ 125.31 to 125.45, commencing with §§ 125.36 et seq.
(7) Zoning ordinance. The Commission shall develop and recommend to the Common Council, under the guidelines of the comprehensive plan, a zoning ordinance and official zoning map establishing zoning districts within the city. Such an ordinance shall be made in regards to the character of each district and the most appropriate use of land within the city.
(8) Special land use permits. The Commission shall review all requests for a special land use in accordance with § 155.188. If required by the code official, maps, drawings, or other documentation in support of the request shall accompany the application. The granting of a special land use permit shall not exempt the applicant from compliance with other relevant provisions of related ordinances.
(9) Employees, contracts for services, and expenditures. The Commission may appoint such employees as the Commission may deem necessary for its work, whose appointment, promotion, demotion, and removal shall be subject to the same provisions of law that govern other corresponding civil employees of the city. The Commission may also contract with planners, engineers, architects, and other consultants for such services as the Commission may require. The expenditures of the Commission, exclusive of gifts, shall be within the amounts appropriated for the purpose by the Common Council, which shall provide the funds, equipment, and accommodations necessary for the Commission's work.
(10) Conflict of interest. No member of the Commission may participate in any decision, approval, or determination with regard to any matter of which he/she has a direct interest.
(G) Appeals and hearings. Any person with standing aggrieved by any decision of the Commission shall have the right to make such appeals as shall be permitted to be provided by this chapter or state law. Such appeals shall be based on the record.
(Ord. 497, passed 2-3-2004; Am. Ord. 523, passed 6-13-2006; Am. Ord. 2011-7, passed 12-13-2011; Am. Ord. 2019-02, passed 10-8-2019; Am. Ord. 2020-28, passed 3-3-2020; Am. Res. 2021-46, passed 4-13-2021)
§ 155.024 ZONING BOARD OF APPEALS.
(A) General. This section addresses the duties and responsibilities of the Zoning Board of Appeals, hereafter referred to as "the Board", and other officers and agencies, with respect to the administration of this chapter.
(B) Establishment of the Board. The Zoning Board of Appeals is hereby established under the City and Village Zoning Act, Act No. 207 of the Public Acts of 1921, being M.C.L.A. §§ 125.581 to 125.600. The Board shall consist of seven members, each to be appointed by the Common Council as provided for in this chapter, within ten days after the effective date of this chapter. The Common Council may also appoint not more than two alternate members for the same term as regular members of the Board. The alternate members may be called on a rotating basis as specified in this chapter to sit as regular members of the Board in the absence of a regular member or 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. A member shall disqualify himself from a vote in which he or she has a conflict of interest. The alternate member called shall serve in the case until a final decision is made. The alternate member has the same voting rights as a regular member of the Board.
(C) Terms of office.
(1) Appointment. The terms of office for the membership of the Board shall be three years, expiring on January 1 in the year of expiration. Appointments of the first members of this Board created under this chapter shall be for terms of one, two, and three years, respectively, so as nearly as possible to provide for the subsequent appointment of an equal number of members each year, except that three members shall be appointed to the one-year term. After the initial appointments, each member shall hold office for the full three-year term.
(2) Removal from office. The Common Council shall, upon written charges and after a public hearing, remove members of the Board for nonperformance of duty or misconduct in office.
(3) Vacancies. Within 30 days, the Common Council shall fill a vacancy on the Board occurring otherwise than through the expiration of term for the unexpired term.
(4) Membership requirements. An appointed member shall be a resident of the city for not less than thirty days before his or her appointment and shall maintain residency during his or her term; if an appointed member discontinues his or her residency within the city, the Common Council shall declare the position vacant and shall appoint another qualified person within thirty days. An appointed member shall not hold another municipal office except that one appointed member may be a member of the Plan Commission.
(5) Compensation. Appointed and alternate members of the Board may be compensated at a rate to be determined by the Common Council during its adoption of the annual budget and may be reimbursed for pre-approved expenses related to performing their duties.
(F) Powers and duties of the Board.
(1) Meetings. All meetings of the Board shall be conducted under the Open Meetings Act, Act No. 267 of the Public Acts of 1976, being M.C.L.A. §§ 15.261 to 15.275. The Board shall meet annually in the first quarter of the calendar year for the purpose of electing officers and establishing rules and procedures under this chapter and applicable state laws for transaction of business. All meetings of the Board shall be held at the call of the Chairman under their adopted procedures and at such other times as the Board shall determine or specify in its rules of procedure. The Mayor shall be empowered to set the date and time of the annual meeting. The public shall be afforded an opportunity to speak at any public hearing under the rules of procedure and by-laws of the Board.
(2) Quorum and votes required. The Board shall not conduct business unless a majority of its members are present. The concurring vote of a majority of the members of the Board is necessary to reverse an order, requirement, decision, or determination of and administrative official or body, or to decide in favor of the applicant a matter upon which the Board shall pass under an ordinance, or to effect a variation in an ordinance except that a concurring vote of two-thirds of the members of the Board is necessary to grant a variance from uses of land permitted in an ordinance.
(3) Records to be public. The City Clerk shall keep a record of its resolutions, transactions, findings, and determinations, which record shall be a public record subject to the Freedom of Information Act, Act No. 442 of the Public Acts of 1976, being M.C.L.A. §§ 15.231 to 15.246.
(4) Chairman. The Board shall elect its chairman from amongst the members and create and fill such other offices as the Board may determine. The term of the Chairman shall be one year, with eligibility for reelection.
(5) Board Secretary. The code official shall appoint a secretary to assist the Board. The secretary shall keep minutes of the Board meetings for public record and conduct all correspondence, including notification of decisions. The secretary shall also certify records. The secretary shall prepare and submit minutes of the Board meetings to the Chairman and to the Board.
(6) General powers. The Board shall hear and decide appeals from and review any order, requirements, decision, or determination made by the code official. The Board shall also hear and decide matters referred to the Board or upon which the Board shall pass under this chapter. For special land use decisions, an appeal may be taken to the Board.
(7) Interpretations. The Board may interpret this chapter and the map and all matters relating thereto when a question arises in the administration of this chapter as to the meaning and intent of any provision or part of this chapter. Any text interpretation shall be narrow and in a manner as to carry out the intent and purpose of this chapter. Interpretations shall not have the effect of amending this chapter. Map interpretations shall be based on the rules of this chapter and any relevant historical information.
(8) Screening and lighting controversies. If any controversy as to the adequacy of any proposed or existing screening or the creation of any nuisance or annoyance by artificial lighting occurs, the Zoning Board of Appeals shall have the right and is hereby given the authority to interpret and determine the screening and lighting provisions and the purpose herein sought to be accomplished.
(9) Extension of licenses, permits, or approvals. Upon application, the Board may grant extensions in the time limits of each license, permit, or approval issued in accordance with § 155.021.
(10) Appeals of administrative decisions. The Board may hear and decide appeals when the appellant alleges that there is error in any order, interpretation, requirement, permit, decision, or refusal made by the code official in enforcing any provision of this chapter.
(11) Modification and variance of ordinance requirements.
(a) Non-use variance.
1. The Board shall be permitted to approve or approve with conditions by a simple majority vote of the Board a request for a dimensional or non-use variance provided that the property owner demonstrates practical difficulty by showing all of the following:
a. Strict compliance with the area, setbacks, frontage, height, bulk, or density requirements of this chapter would unreasonably prevent the property owner from using property for some lawful permitted purpose or would render conformity unnecessarily burdensome in the particular case.
b. A variance shall do substantial justice to both the property owner and neighboring property owners in the district or that a lesser requirement would give substantial relief and be more consistent with justice to others.
c. The plight of the property owner is due to unique circumstances of the property.
d. The problem of the property owner is not self-created.
2. If the property owner demonstrates the above criteria, the Board may consider the following types of non-use variance requests:
a. All matters referred to the Board or upon which the Board shall hear and decide under this chapter.
b. Permit such modification of the height, placement, and area regulations as may be necessary to secure an appropriate improvement of a lot which is of such shape or so located with relation to surrounding development or physical characteristics that the lot cannot otherwise be appropriately improved without such modification.
c. Permit the modification of the automobile parking space or loading space requirements when, in the particular instance, such modifications shall not be inconsistent with the purpose and intent of such requirement.
d. Permit variances for items such as buffering, screening, fencing, or landscaping.
(b) Use variance. The Board shall be permitted to grant by a two-thirds vote of the Board a use variance of the literal provisions of this chapter to a property owner provided that the property owner demonstrates all of the following:
1. Showing of unnecessary hardship on the property owner if this chapter was strictly enforced. The landowner shall prove that the land cannot be put to a reasonable use or yield a reasonable return under its existing zoning classification.
2. The hardship shall be unique or peculiar to the particular parcel and cannot be the result of general neighborhood conditions.
3. There are exceptional or extraordinary circumstances or conditions applicable to the property involved or to the intended use of the property that do not apply generally to other properties or uses in the same zone.
4. The variance is necessary to the preservation and enjoyment of a substantial property right possessed by other property in the same zone and proximity.
5. The variance shall not result in the alteration of the essential character of the neighborhood by impairing an adequate supply of light and air to adjacent property, increasing traffic congestion in public streets, increasing the danger of fire, endangering the public safety, or unreasonably diminishing or impairing established property values within the surrounding area.
6. The variance is a minimum variance that shall make possible the reasonable use of the land, building, or structure.
7. The variance shall be in harmony with the general purpose and intent of this chapter and shall not be injurious to the neighborhood or otherwise detrimental to the public welfare.
(12) Time limitations on a variance. If the Board approves a variance, the variance shall remain in effect only so long as the facts and circumstances as presented to the Board and upon which the variance was granted continue to exist, and that the conditions attached to the approval are satisfied and maintained. If the variance is not exercised within 12 months from the date the variance is granted (unless the Board establishes a different time period as a condition), the variance shall lapse. If the variance has lapsed and the petitioner desires to proceed with the benefits of the variance, the petitioner shall reapply for the variance and demonstrate that all of the requirements for approval of a variance have been met, based upon the facts and circumstances in existence when the new request was submitted. The Board shall have the right to deny the variance if the facts and circumstances pertaining to the request have changed, if the petitioner is not willing to satisfy the conditions attached to the original approval, or if the petitioner has not demonstrated that all of the substantive requirements for the granting of a variance have been satisfied as of the time the new application for variance is filed.
(G) Appeals and hearings.
(1) Filing, time limit. An appeal under this chapter shall be commenced by a person filing notice of appeal or petition as described in the rules and procedures of the Board, within 35 days, and with the appropriate filing fee as annually determined by the Common Council upon adoption of the budget, with the code official. The notice of appeal shall specify the specific grounds upon which the appeal is based and shall be signed by the applicant and property owner. The appeal shall specify the requirement from which a variance is sought and the nature and extend of such variance. The appeal shall be accompanied by a fully completed application along with any other information required by the Board. The code official shall immediately send to the Board all the papers constituting the record upon which the action appealed from was taken. No appeal under this chapter shall be taken if such applicant is in default to the city and is not eligible to be issued a permit under this chapter.
(2) Notification of hearing. The Board shall fix a reasonable time for the hearing of the appeal and give notice of the appeal to the persons to whom real property within 300 feet of the premises in question is assessed, and to the occupants of single and two-family dwellings within 300 feet. The notice shall be delivered personally or by mail addressed to the respective owners and tenants at the address given in the last assessment roll. If a tenant's name is not known, the term "occupant" may be used. A person may appear in person or be represented by a duly authorized agent at the hearing.
(3) Effect of filing. An appeal under this chapter stays all proceedings in furtherance of the action appealed from unless the officer or body from whom the appeal is taken certifies to the Board, after the notice of appeal is filed, that by reason of facts stated in the certificate, a stay would in the opinion of the officer or body cause imminent peril to life or property. If such a certification is filed, the proceedings shall only be stayed by a restraining order. A restraining order may be granted by the Board or by the circuit court, on application, on notice to the officer or body from whom the appeal is taken and on due cause shown.
(4) Board to decide. The Board shall decide the appeal within 75 days. The Board may reverse or affirm, wholly or partly, or may modify the order, requirement, decision, or determination appealed from and shall make an order, requirement, decision, or determination as in the Board's opinion ought to be made in the premises, and to that end shall have all the powers of the officer or body from whom the appeal is taken, all subject to limitations identified in this chapter. If there are practical difficulties or unnecessary hardships in carrying out the strict letter of this chapter, the Board may in passing upon appeals grant a variance in any of its rules or provisions relating to the construction, or structural changes in, equipment, or alteration of buildings or structures, or the use of land, buildings, or structures, so that the spirit of this chapter shall be observed, public safety secured, and substantial justice done.
(5) Official record of hearing. The Board shall prepare an official record for each appeal and shall base its decision on this record. The official record shall include the relevant administrative record and administrative orders issued thereon relating to the appeal, the notice of the appeal, and such documents, exhibits, photographs, or written reports as may be submitted to the Board for its consideration, and the minutes of the hearing, findings of fact, and decisions and order of the Board. The record and decision of the Board shall comply with the constitution and the laws of the state, be based on proper procedure, be supported by competent material and substantial evidence on the record, and represent the reasonable exercise of discretion granted by law to the Board.
(6) Appeal to Circuit Court. The decision of the Board is final. However, a person having an interest affected by this chapter may appeal to the circuit court. If the court finds the record of the Board inadequate to make the review required under state law, or that additional material evidence exists that with good reason was not presented to the Board, the court shall order further proceedings before the Board on conditions that the court considers proper. The Board of appeals may modify its findings and decision as a result of the new proceedings, or may affirm the original decision. The supplementary decision shall be filed with the court.
(H) Limitations on the powers of the Board.
(1) Common Council decisions. Nothing contained herein shall empower the Board to override the decisions of the Common Council with respect to the approval or denial of any decision authorized to be made by the Common Council.
(2) Zoning Map. Nothing contained herein shall empower the Board to change the terms of this chapter, to effect changes in the Zoning Map, or to add to the uses permitted in any zoning district, except when specifically empowered to do so by this chapter.
(3) Variance conditions.
(a) In authorizing a variance or taking any other action within its jurisdiction, the Board may attach such conditions as may be deemed necessary in the furtherance of the purposes of this chapter, provided any conditions are in compliance with the standards contained herein. The conditions imposed by the Board may include conditions necessary to ensure that public services and facilities affected by a proposed land use or activity shall be capable of accommodating increased service and facility loads caused by the land use or activity, protect the natural environment, conserve natural resources and energy, ensure compatibility with adjacent uses of land, and to promote the use of land in a socially and economically desirable manner. Conditions imposed shall do all the following:
1. Be designed to protect natural resources, the health, safety, and welfare, as well as the social and economic well-being of those who shall use the land use or activity under consideration, residents and landowners immediately adjacent to the proposed land use or activity and the community as a whole;
2. Be related to the valid exercise of the police power and purposes which are affected by the proposed use or activity;
3. Be necessary to meet the intent and purpose of the zoning regulations, be related to the standards established in this chapter for the land use or activity under consideration and be necessary to ensure compliance with those standards.
(b) The conditions imposed with respect to the approval of a land use or activity shall be recorded in the record of the approval action and shall remain unchanged except upon the mutual consent of the approving authority and the property owner. The Board shall maintain a record of changes granted in conditions. Any changes in the conditions shall be filed with the Register of Deeds as provided herein.
(4) Basis of decisions. Every decision of the Board shall be based upon findings of fact, and every such finding shall be supported in the record and proceedings of the Board.
(Ord. 497, passed 2-3-2004; Am. Ord. 523, passed 6-13-2006; Am. Ord. 2011-7, passed 12-13-2011; Am. Ord. 2019-02, passed 10-8-2019; Am. Ord. 2020-28, passed 3-3-2020; Am. Res. 2021-46, passed 4-13-2021)