There is hereby established in and for the City a Zoning Board of Appeals, which shall perform its duties and exercise its powers as provided in Michigan Public Act 110 of 2006, as amended (MCLA 125.3601), in such a way that the objectives of this Zoning Code shall be observed, public safety secured and substantial justice done.

(Res. 98-529A. Passed 12-21-98; Res. 08-363A. Passed 11-17-08, Eff. 12-3-08.)

   (a)   The Zoning Board of Appeals shall consist of five (5) members appointed by majority vote of City Council.

   (b)   When the terms of the individual members of the Board expire, with not more than three (3) terms expiring in any one year, the City Council shall appoint a successor for a three (3)-year term from the date of expiration of the original member's term.

   (c)   All members shall be registered voters of the City and shall be citizens of the United States, provided that no employee of or contractor for the City may serve simultaneously as a member of the Board.

   (d)   One (1) regular member shall be appointed from the membership of the Planning Commission, and one (1) regular member may be a member of the Council, but shall not serve as chairperson. The Board and the Commission shall, at all times, have one (1) member in common.

   (e)   After the initial appointment, each member shall hold office for a period of three (3) years or until his or her successor is appointed, except for members serving because of their membership on the Planning Commission or Council, and then the term shall be limited to the time they are members of those bodies. The Council may appoint a member to the ZBA for a term of less than three (3) years to provide for staggered terms. The Council shall appoint a successor within one (1) month after the term of the preceding member has expired. Vacancies for unexpired terms shall be filled for the remainder of the term.

   (f)   Members may be removed by the Council for misfeasance, malfeasance, or nonfeasance in office upon written charges and after a public hearing. A member shall disqualify himself or herself from a vote in which they have a conflict of interest Failure to disqualify oneself from a vote in which there is a conflict of interest constitutes malfeasance in office.

   (g)   The Council may appoint not more than two (2) alternate members for the same term as regular members of the Board. An alternate member may be called to serve in the place of a regular member for the purpose of reaching a decision on a case in which the regular member has abstained for reasons of a conflict of interest. The alternate member having been appointed shall serve in the case until a final decision has been made. The alternate member shall have the same voting rights as a regular member of the Board.

(Res. 98-529A. Passed 12-21-98; Res. 08-24A. Passed 1-28-08; Res. 08-363A. Passed 11-17-08, Eff. 12-3-08.)

The Chairperson, Vice Chairperson and Secretary of the Zoning Board of Appeals shall be elected annually by the members of the Board at the first meeting held in each calendar year. The City Attorney or his or her representative shall act as legal counsel for the Board and, subject to prior approval of the Mayor and Council, shall be present at meetings of the Board upon request.

(Res. 98-529A. Passed 12-21-98.)

   (a)   All meetings of the Zoning Board of Appeals shall be held at the call of the Chairperson or the Vice Chairperson in the absence of the Chairperson, or upon the written request of any two (2) members of the Board.

   (b)   The Board shall keep minutes of its proceedings, showing the vote of each member on each question or, if absent or failing to vote, indicating such fact, and shall keep records of its findings, proceedings at hearings and other official actions, all of which shall be immediately filed in the office of the City Clerk and shall be a public record.

   (c)   The Board may subpoena and require the production of books, papers, files and other evidence pertinent to the matters before it.

   (d)   The business which the Board may perform shall be conducted at a public meeting of the Board held in compliance with Act 267 of the Public Acts of 1976, as amended (MCLA 15.261 et seq.). Public notice of the time, date and place of the meeting shall be given in the manner required by Act 267 of the Public Acts of 1976, as amended.

   (e)   A writing prepared, owned, used, in the possession of or retained by the Board in the performance of an official function shall be made available to the public in compliance with Act 442 of the Public Acts of 1976, as amended (MCLA 15.231 et seq.).

(Res. 98-529A. Passed 12-21-98.)

   (a)   An appeal may be taken to the Zoning Board of Appeals by any person, officer, department, board or bureau affected by a decision of the Building Official concerning this Zoning Code. Such appeal shall be taken within sixty (60) days from the decision by filing with the Building Official and with the Board a notice of appeal specifying the grounds thereof. The Building Official shall forthwith transmit to the Board all of the papers constituting the record upon which the action appealed from was taken.

   (b)   An appeal shall stay all proceedings in furtherance of the action appealed from unless the Building Official certifies to the Board, after the notice of appeal has been filed with him or her, that by reason of facts stated in the certificate a stay would, in his or her opinion, cause imminent peril to life or property, in which case the proceedings shall not be stayed.

   (c)   The Zoning Board of Appeals shall hold a public hearing and the Building Department shall provide written notice of the hearing of an appeal, variance, or interpretation, as set forth in Section 1262.07(F) of this chapter.

   Fees for hearings before the Board shall be adopted by resolution of the Mayor and Council. Such fees shall be paid to the Building Department at the time notice of the appeal is filed.

(Res. 98-529A. Passed 12-21-98; Res. 08-363A. Passed 11-17-08, Eff. 12-3-08.)

   (a)   As set forth in Section 603(1) of Public Act 110 of 2006, as amended, and herein, the Zoning Board of Appeals shall have the authority to hear and decide questions that arise in the administration of the Zoning Ordinance, including interpretation of the Zoning Map and to hear and decide appeals from and review any administrative order, requirement decision, or determination made by an administrative official, Planning Commission or City Council. The Zoning Board of Appeals shall hear and decide upon matters referred to it as required in this chapter. Also, the Zoning Board of Appeals may adopt rules to govern its procedures sitting as a zoning board of appeals pursuant to Public Act 110 of 2006, as amended.

   (b)   The Zoning Board of Appeals shall not have the authority to alter or change the zoning district classification of any property, nor make any change in the text of this chapter. The Zoning Board of Appeal's shall not have the authority to hear and decide upon an appeal regarding a special land use or a planned development. Further, the Zoning Board of Appeals shall not grant any "non-use" or dimensional variance to any property located in a planned development zoning district, unless specifically authorized by the applicable recorded planned development agreement.

   (c)   The Zoning Board of Appeals shall have the authority to hear and decide upon mapping disputes and establish the boundary location in accordance with Section 1266.02(b) where disputes arise as to the location of the floodplain boundary or the limits of the floodway. The decision of the Board shall be based upon the most current floodplain studies issued by the Office of Federal Insurance and Hazard Mitigation. In cases where the Office of Federal Insurance and Hazard Mitigation information is not available, the Board shall reference the best available floodplain information.

(Res. 98-529A. Passed 12-21-98; Res. 08-363A. Passed 11-17-08, Eff. 12-3-08.)

The ZBA shall have authority to hear and decide appeals where it is alleged that there is an error in an order, requirement, permit, decision, or refusal made by an official, board or commission in carrying out or enforcing any provisions of this chapter. The applicant shall request such appeal within sixty (60) days of the date of the order, refusal, requirement, or determination being appealed.

In hearing and deciding appeals under this subsection, ZBA review shall be based upon the record of the administrative decision being appealed, and the ZBA shall not consider new information, which had not been presented to the administrative official, council or commission from whom the appeal is taken. The ZBA shall not substitute its judgment for that of the administrative official, council or commission being appealed, and the appeal shall be limited to determining, based upon the record, whether the administrative official, council or commission breached a duty or discretion in carrying out this chapter.

(Res. 98-529A. Passed 12-21-98; Res. 08-363A. Passed 11-17-08, Eff. 12-3-08.)

The Zoning Board of Appeals shall interpret this Zoning Code in such a way as to carry out the intent and purpose of the Master Plan, as shown upon the Zoning Map fixing the use districts accompanying and made part of this Zoning Code, where the street layout actually on the ground varies from the street layout as shown on the Map. In the case of any question as to the location of any boundary line between zoning districts, the Board shall interpret the Zoning Map after receiving a recommendation from the Planning Commission.

(Res. 98-529A. Passed 12-21-98; Res. 08-363A. Passed 11-17-08, Eff. 12-3-08.)

   Such authority shall be exercised in accordance with the following standards:

      (1)   The ZBA may grant a requested "non-use" variance only upon a finding that practical difficulties exist. A finding of practical difficulties shall require demonstration by the applicant of all of the following:

         A.   Practical Difficulties. Strict compliance with restrictions governing area, setback, frontage, height, bulk, density or other non-use matters, will unreasonably prevent the owner from using the property for a permitted purpose or will render ordinance conformity unnecessarily burdensome.

         B.   Substantial Justice. The variance will do substantial justice to the applicant as well as other property owners.

         C.   Unique circumstances. The need for the variance is due to unique circumstances peculiar to the land or structures involved that are not applicable to other land or structures in the same district.

         D.   Preservation of property rights. The variance is necessary for the preservation and enjoyment of a substantial property right also possessed by other property owners in the same zoning district.

         E.   Public safety and welfare. The requested variance or appeal can be granted in such fashion that the spirit of this chapter will be observed and public safety and welfare secured.

         F.   Not self-created. The problem and resulting need for the variance has not been self-created by the applicant or the applicant's predecessors.

         G.   More than mere inconvenience. The alleged hardship and practical difficulties that will result from a failure to grant the variance include substantially more than mere inconvenience, or an inability to attain a higher financial return.

         H.   Additional considerations. The ZBA shall consider all of the following when reviewing a variance to ensure that the proposed variance is the minimum necessary to meet the requirements of the applicant under the chapter and may impose condition upon any variance granted based upon its findings under this subsection:

            1.   The granting of a lesser variance will not provide reasonable relief and substantial justice to the applicant.

            2.   The granting of a variance will not increase the hazard of fire or otherwise endanger public safety.

            3.   The granting of a variance will not unreasonably diminish or impair the value of surrounding properties.

            4.   The granting of a variance will not alter the essential character of the neighborhood or surrounding properties.

            5.   The granting of a variance will not impair the adequate supply of light and air to any adjacent property.

         I.   A lesser variance than requested will not give substantial relief to the applicant and/or be consistent with justice to other property owners.

      (1)   The current Zoning Ordinance prohibits the property owner from securing any reasonable economic return or making any reasonable use of the property. Under this standard, the ZBA shall find that the property (land, structures and other improvements) is not suitable for uses permitted in the zoning district.

      (2)   The landowner's plight is due to unique circumstances peculiar to the property and not to general neighborhood conditions. Circumstances common to the larger neighborhood may reflect the unreasonableness of the zoning itself, which should be addressed through a rezoning or other legislative action.

      (3)   The use variance, if granted, would not alter the essential character of the neighborhood. This standard requires consideration of whether the intent and purpose of the chapter and zoning district will be preserved and the essential character of the area will be maintained.

      (4)   The hardship is not the result of the applicant's actions. Under this standard, the ZBA shall determine that the hardship that led to the use variance request was not self-created by the applicant. Purchase of a property with a pre-existing hardship does not constitute a self-created hardship. Financial hardships that would prevent reasonable use of the property shall be considered, but shall not be the only determining factor in granting a use variance.

   (c)   In all variance proceedings, it shall be the responsibility of the applicant to provide information, plans, testimony and/or evidence from which the ZBA may make the required findings. Administrative officials and other persons may, but shall not be required to, provide information, testimony and/or evidence on a variance request. The fact that a variance would increase the value of property or allow an owner to increase profits is not sufficient grounds for granting the variance.

(Res. 98-529A. Passed 12-21-98; Res. 08-363A. Passed 11-17-08, Eff. 12-3-08.)

   (a)   Three (3) members of the Zoning Board of Appeals shall constitute a quorum for the conducting of business. The concurring vote of three (3) members shall be necessary to reverse or modify any order, requirement, decision or determination of the Building Superintendent, to decide any matter upon which the Board is required to pass by law or to effect any variation in the terms of this Zoning Code, provided that a majority vote of the members in attendance may adjourn any meeting to another date.

   (b)   The power or authority to alter or change this Zoning Code or the Zoning Map is reserved to the City Council in the manner provided by law.

(Res. 98-529A. Passed 12-21-98; Res. 08-363A. Passed 11-17-08, Eff. 12-3-08.)

      (1)   Be 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 under consideration, residents and landowners immediately adjacent to the proposed land use or activity, and the community as 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 Ordinance, be related to the standards established in the ordinance, be related to the standards established in the ordinance for the land use or activity under consideration, and be necessary to insure compliance with those standards.

      (4)   Conditions imposed with respect to the approval of a variance shall be recorded as part of the ZBA minutes, and shall remain unchanged except upon the mutual consent of the ZBA and the landowner following notice and hearing as required in a new case.

      (5)   The Board may require performance bonds to ensure compliance with any requirements deemed necessary for approving any variance (see Section 1262.10).

   (b)   In exercising the powers described in this chapter, the Board may reverse or affirm, wholly or partly, or modify, the order, requirement, decision or determination appealed from and may make such order, requirement, decision or determination as ought to be made, and to that end shall have all the powers of the Building Superintendent from whom the appeal is taken.

(Res. 98-529A. Passed 12-21-98; Res. 08-363A. Passed 11-17-08, Eff. 12-3-08.)

No order of the Zoning Board of Appeals permitting the erection or alteration of a building, an open air land use or a parking lot shall be valid for longer than twelve (12) months unless such use is established within this twelve (12) month period or a permit for such erection or alteration is obtained within this twelve (12) month period and such erection or alteration is commenced and proceeds to completion in accordance with the terms of the permit. However, where such permitted use is dependent upon the erection or alteration of a building, such order shall continue in force and effect if a building permit for the erection or alteration is obtained within the above cited twelve (12) month period and such erection or alteration is started and proceeds to completion in accordance with such permit. The period of approval may be extended by the Board for up to twelve (12) months if the decision was in conjunction with a site plan for which approval has been extended by the Planning Commission or the Building Official.

(Res. 98-529A. Passed 12-21-98; Res. 08-363A. Passed 11-17-08, Eff. 12-3-08.)

   (a)   The decision of the Zoning Board of Appeals shall be final. However, a person having an interest aggrieved by this Zoning Code may appeal such decision to the Circuit Court. Upon appeal, the Court shall review the record and decision of the Board to ensure that the decision:

      (1)   Complies with the Constitution and laws of the State;

      (2)   Is based upon proper procedure;

      (3)   Is supported by competent, material and substantial evidence on the record; and

      (4)   Represents the reasonable exercise of discretion granted by law to the Board.

   (b)   If the Court finds that the record of the Board is inadequate to make the review required by this section, or that there is additional evidence which is material and with good reason was not presented to the Board, the Court shall order further proceedings before the Board on conditions which the Court considers proper. The Board may modify its findings and decision as a result of the new proceedings or may affirm its original decision. The supplementary record and decisions shall be filed with the Court.

   (c)   As a result of the review required by this section, the Court may affirm, reverse or modify the decision of the Board.

(Res. 98-529A. Passed 12-21-98; Res. 08-363A. Passed 11-17-08, Eff. 12-3-08.)

      (1)   Applicant's name, address, and telephone number.

      (2)   Scale, north point and dates of submission and revisions.

      (4)   Existing lot lines, building lines, structures, parking areas, driveways, and other improvements on the site and within fifty (50) feet of the site.

      (5)   Proposed lot lines and lot dimensions, and general layout of proposed structures, parking areas, driveways, and other improvements on the site.

      (6)   Dimensions, centerlines, and right-of-way widths of all abutting streets and alleys.

      (7)   Location of existing drainage courses, floodplains, lakes and streams, and woodlots.

      (8)   All existing and proposed easements.

      (9)   Location of sanitary sewer or septic systems, existing and proposed.

      (10)   Location and size of watermains, well sites, and building service, existing and proposed.

      (11)   Any additional information required by the Zoning Board of Appeals to make the determination requested herein.

   Where an application requests a variance sought in conjunction with a regular site plan review, a site plan prepared according to Section 1296.01 shall satisfy the requirements of this section.

   The Zoning Board of Appeals has the authority to require a land survey prepared by a registered land surveyor or registered engineer when the ZBA determines it to be necessary to insure accuracy of the plan.

   The ZBA shall have no obligation to consider and/or grant a request for relief unless and until a conforming and complete application has been filed; including relevant plans, studies and other information.

(Res. 08-363A. Effective 12-3-08.)

(Res. 08-363A. Passed 11-17-08, Eff. 12-3-08.)