1. Pursuant to the Michigan Zoning Enabling Act, Act 110 of 2006, as amended, there shall be a Zoning Board of Appeals consisting of five members, each to be appointed by the mayor with the approval of council for overlapping terms of three years, running from January 1 of the year appointed. Vacancies shall be filled by appointment for the unexpired term. The Board shall elect its own chairperson and vice chairperson.
2. The mayor with the approval of the council shall appoint two alternate members for the same term as regular members. A member of the city council may serve as regular or alternate member of the zoning board of appeals. Alternate members shall serve in the case of absence of a regular member or the inability of a regular member to serve due to conflict of interest. The alternate member, having been appointed shall serve on the case until a final vote has been made. Alternate members shall have the same voting rights as regular members.
3. One member of the zoning board of appeals may be a member of the planning commission. An employee or contractor of the city council may not serve as a member of the zoning board of appeals. A member of the city council shall not serve as the chairperson of the zoning board of appeals.
4. A member of the zoning board of appeals who is also a member of the planning commission or the city council shall not participate in a public hearing on or vote on the same matter that the member voted on as a member of the planning commission or city council. The member may consider and vote on the other unrelated matters involving the same property.
5. Members of the board of appeals may be removed by the city council for misfeasance, malfeasance, or nonfeasance in office upon written charges and after public hearing.

(Code 1970, § 3.240; Ord. No. 301, § 12(3.240), 2-10-97; Ord. No. 366, § I, 4-28-03; Ord. No. 431, § II, 11-24-08)

Charter reference - Mayor shall appoint, with the advice and consent of council, the members of the boards and commissions, § 5.4.

The board shall perform all duties and have all the powers prescribed by the Michigan Zoning Enabling Act, Act 110 of 2006 (MCL 125.3101 et seq.), as amended. It shall adopt such rules of procedure, not inconsistent with the provisions of state law and local ordinances, as it may deem necessary to the proper performance of its duties and the proper exercise of its powers.

(Code 1970, § 3.241; Ord. No. 431, § III, 11-24-08)

The board may employ such clerical or other assistance as may be necessary, provided that it shall not at any time incur any expense beyond the amount of the appropriation made and available for that purpose.

(Code 1970, § 3.242)

Meetings of the board shall be held at the call of the chairperson and at such other times as the board may determine, and shall be at sufficiently frequent intervals, in the discretion of the board, for the efficient conduct of its business. All meetings shall be open to the public. A quorum shall consist of four members.

(Code 1970, § 3.243)

Appeals to the board in any matter over which it may have jurisdiction, may be taken by any party aggrieved by the decision or order appealed from, or by an officer, department, board or agency of the city affected by such decision or order. A notice of appeal, specifying the grounds thereof, shall be filed with the clerk of the board within 30 days after the date of the action appealed from. A copy of the notice of appeals shall promptly be served upon the officer from whom the appeal is taken, who shall forthwith transmit to the board all papers constituting the record upon which the action appealed from was taken. An appeal shall stay all proceedings in furtherance of the action in respect to which the decision or order appealed from was made unless the officer from whom the appeal is taken certifies to the board that by reason of the facts stated in the certificate a stay would, in his opinion, cause imminent peril to life or property. In such case, proceedings shall not be stayed except upon a restraining order granted by the board or by the circuit court on application of notice to the officer from whom the appeal is taken and on due cause shown.

(Code 1970, § 3.244)

Subject to the provisions of section 90-87, and in addition to other duties and powers specified herein, the board, after public hearing, shall have the power to decide applications for variances:

1. Where it is alleged by the application or the applicant that there is error or misinterpretation in any order, requirement, decision, grant or refusal made by the building inspector or other administrative officer of the city in the carrying out or enforcement of the provisions of this chapter.
2. Where it is alleged by the applicant that by reason of the exceptional narrowness, shallowness or shape of a specific piece of property on the effective date of the ordinance from which this chapter was derived, or by reason of exceptional topographic conditions or other extraordinary situation or condition of the land, building or structure, or of the use or development of property immediately adjoining the property in question, the literal enforcement of the requirements of the ordinance from which this chapter was derived would involve practical difficulties or would cause undue hardship, provided that the board shall not grant a variance on a lot of less than the requirements of its zone, even though such lot existed at the time of the passage of the ordinance from which this chapter was derived, if the owner or members of his immediate family owned adjacent land which could, without undue hardship, be included as part of the lot.
3. Where it is alleged by the applicant that there are practical difficulties or unnecessary hardships in the way of carrying out the strict letter of this chapter relating to the construction, structural changes in equipment, or alterations 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.
4. Where it is alleged that the condition or situation of the specific piece of property or the intended use of said property for which the variance is sought is not of so general or recurrent a nature as to make reasonably practical the formulation of a general regulation for such conditions or situation as part of this chapter.

(Code 1970, § 3.245)

The Zoning Board of Appeals shall have the authority to grant nonuse variances related to dimensional requirements of the Zoning Ordinance or to any other nonuse-related standard in the Ordinance where there are practical difficulties in the way of carrying out the strict letter of this Ordinance so that the spirit of the Ordinance shall be observed, public health and safety secured, and substantial justice done.

1. Standards: In determining whether practical difficulties exist, the Zoning Board of Appeals shall consider the following factors:
   1. That the variance will not permit the establishment within a zoning district of any use which is not allowed as a permitted or special land use within the district.
   2. That compliance with the strict letter of the Zoning Ordinance would unreasonably prevent the owner or occupant of the property from using the property for a permitted purpose or would render conformity with the Zoning Ordinance unnecessarily burdensome.
   3. That a grant of the variance applied for would do substantial justice to the applicant as well as to other property owners in the surrounding area or, in the alternative, that a lesser relaxation than that applied for would give substantial relief to the owner or occupant of the property involved and be more consistent with justice to other property owners.
   4. That the hardship asserted by the applicant by way of justification for a variance is due to unique circumstances of the property.
   5. That the hardship asserted by way of justification for the variance is not self-created.
   6. That, in granting a variance, the Zoning Board of Appeals is ensuring that the spirit of the Zoning Ordinance is observed, public safety secured, and substantial justice done.
2. Conditions: The Zoning Board of Appeals may attach conditions or limitations upon a variance, where such are necessary to insure that public services and facilities affected by a requested variance and the associated land use or activity will be capable of accommodating increased service and facility loads caused by the variance and associated land use or activity, and to protect the natural environment and conserve natural resources and energy, and to insure compatibility with adjacent uses of land, and to promote the use of land in a socially and economically desirable manner. Prior to attaching a condition or limitation to a variance, the Zoning Board of Appeals shall also specifically determine the following:
   1. That the condition or limitation is designed to protect natural resources, the health, safety and welfare and the social and economic well-being of those who will use the land use or activity associated with the variance under consideration, residents, and land owners immediately adjacent to the land use or activity, and the community as a whole; and,
   2. That the condition or limitation is related to the valid exercise of the police power, and purposes which are affected by the proposed variance; and,
   3. That the condition or limitation is necessary to meet the intent and purpose of the zoning ordinance, is related to the standards established in the ordinance for the variance under consideration and associated land use or activity and is necessary to ensure compliance with those standards.

Any such conditions and limitations may impose greater or more restrictions and requirements than are included in this Ordinance generally and may include the provision of reasonable financial security to guarantee performance. Violation of any such conditions or limitations shall be deemed a violation of this Ordinance.

(Code 1970, § 3.246)

An application for a land use variance to permit a use not otherwise permitted in that zoning district may be considered by the board but only according to the following procedures:

1. The applicant shall first seek to rezone the property to that zoning district that permits the desired use. If the rezoning request is denied by the council, the applicant may then file an application for a use variance from the board.
2. Such application shall be made to the city clerk/treasurer and an application fee paid in accordance with the fee schedule established by the council.
3. The city clerk/treasurer shall forward the application materials to the planning commission for consideration at its next regularly scheduled meeting. The commission shall review the request with attention to the recommendation of the master plan of the city for the property in question. The commission shall then make a recommendation to the board.
4. The variance request shall then be considered by the board in accordance with the hearing procedures set forth in this chapter.
5. In order to approve a use variance request, the board shall determine that an unnecessary hardship exists and that the variance request meets all of the following conditions:
   1. That the property could not be used (be put to a reasonable use) for the purposes permitted in that zone.
   2. That the plight is due to unique circumstances peculiar to the property and not to general neighborhood conditions.
   3. That the use would not alter the essential character of the area.
   4. That the problem is not self created. Further, the board must ensure that the spirit of this chapter is observed, public safety secured and substantial justice done.
6. In granting a use variance, the board may prescribe reasonable conditions and safeguards necessary to meet the spirit and intent of this chapter.

(Code 1970, § 3.247)

Upon the filing of any appeal, or other application in any matter of proceedings over which the board shall have jurisdiction by law or ordinance, the board shall hold a hearing on such appeal or application. Notice of the hearing shall be as required in section 90-47.

For a request seeking an interpretation of the zoning ordinance or an appeal of an administrative decision, a notice of a public hearing shall be published in a newspaper of general circulation within the city and shall be sent to the person seeking the interpretation or appeal not less than 15 days before the public hearing.

In addition to the newspaper notice required by the above paragraph, if the request for an interpretation or appeal of an administrative decision involves a specific parcel, written notice stating the nature of the interpretation request and notice of the public hearing on the interpretation request shall also be sent by first-class mail or personal delivery to all persons to whom real property is assessed within 300 feet of the boundary of the property in question and to the occupants of all structures within 300 feet of the boundary of the property in question. If a tenant's name is not known, the term "occupant" may be used.

(Code 1970, § 3.249; Ord. No. 301, § 12(3.249), 2-10-97; Ord. No. 321, 8-23-99; Ord. No. 407, § III, 8-28-06; Ord. No. 431, § IV, 11-24-08)

Upon the filing of any appeal or application to the board by any person other than an officer, department, board or agency of the city, the appellant or applicant shall pay a fee as set by resolution of the city council to defray the cost of publishing notice of the appeal or application and the board's decision thereon, of hearing and recording the matter. The cost of taking the testimony stenographically and transcribing the same shall be borne and paid for by the appellant or applicant, and the board may require such deposit to be made for such purpose as shall be reasonable in the circumstances.

(Code 1970, § 3.251)

1. Each variance granted under the provisions of this chapter shall become void unless the construction, occupancy or other actions authorized by such variance have commenced within one year of the granting of such variance.
2. Upon written application filed with the city clerk/treasurer prior to the termination of the one-year time period, the board may authorize a single extension of the time limit for an additional period of not more than one year upon the finding of the board that the original circumstances creating the need for the extension were largely beyond the control of the applicant.
3. No application for a variance that has been denied wholly or in part by the board shall be resubmitted within one year from the date of the original filing of an application for the variance, except on grounds of new evidence or proof of changed conditions relating to the reasons for the denial of the original appeal found by the board to be valid.

(Code 1970, § 3.252; Ord. No. 301, § 12(3.252), 2-10-97)

The final disposition of any matter of the board shall require the concurring vote of four of its members.

(Code 1970, § 3.253)

Minutes shall be kept of the board's proceedings showing the vote of each member upon every question, or if absent or failing to vote, indicating that fact. Records of the board's official actions shall be filed in the office of the city clerk/treasurer and shall be a public record.

(Code 1970, § 3.254; Ord. No. 301, § 12(3.254), 2-10-97)

The decision of the board of appeals shall be final. Any party aggrieved by any such decision may appeal to the circuit court for Barry County, as provided under PA 110 of 2006 as amended. The records of the zoning board of appeals shall be made available for the court's review. Such appeal shall be filed within 30 days after the zoning board of appeals certifies its decision in writing signed by the chairperson, or 21 days after the zoning board of appeals approves the minutes of the decision.

(Ord. No. 431, § V, 11-24-08)