Mason City Zoning Code
ARTICLE XI
ZONING BOARD OF APPEALS
Sec. 94-361. Creation and membership.
The zoning board of appeals is hereby established in accordance with Public Act No. 207 of 1921 (MCL 125.581 et seq.). In the performance of assigned duties and the exercise of assigned powers, the zoning board of appeals shall function such that the objectives of this chapter may be equitably achieved.
(1) Members. The zoning board of appeals shall consist of seven members each appointed by the city council for a term of three years, except that the term of a member serving because of their being a member of the city council shall be limited to the time they are a member of the council. One regular or alternate member may be a member of the city council but shall not serve as chairperson of the zoning board of appeals. The remaining members shall be selected from the electors of the city. The members selected shall be representative of the population distribution and of the various interests present in the city.
(2) Alternate members. The city council may appoint not more than two alternate members for the zoning board of appeals each appointed for a term of three years. An alternate member shall be called on a rotating basis to sit as a regular member of the zoning board of appeals in the absence of a regular member. An alternate member may also be called to serve in the place of a regular member for the purpose of reaching a decision on a particular case in which the regular member has abstained for reasons of conflict of interest. Once having been called to serve, an alternate member shall serve as a regular member in the consideration of that particular case until a final decision has been made.
(3) Removal. A member of the zoning board of appeals may be removed by the city council for misfeasance, malfeasance, or nonfeasance in office upon written charges and after public hearing. A member shall disqualify himself or herself from a vote in which the member has a conflict of interest. Failure of a member to disqualify himself or herself from a vote in which the member has a conflict of interest constitutes malfeasance in office.
(4) Participation by dual members. 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 such member voted on as a member of the planning commission or city council. However, such member may consider and vote on other unrelated matters involving the same property.
(Ord. No. 152, 5-1-2006; Ord. No. 157, 11-6-2006; Ord No. 176, 5-4-2009)
Sec. 94-362. Organization and procedure.
(a) Meetings. Four members of the zoning board of appeals shall comprise a quorum for the purpose of conducting a meeting. Meetings shall be held at the call of the chairman or the zoning official in writing delivered to the addresses of each member of the board. All meetings shall be open to the public. The city manager or a designee shall act as secretary of the board.
(b) Records. Minutes of all meetings shall be recorded and made available in accordance with the Michigan Open Meetings Act (MCL 15.261 et seq.) and shall contain the grounds of every determination made by the zoning board of appeals including all evidence and data considered, all findings of fact and conclusions drawn, the votes of the members and the final disposition of each case. Such minutes shall be filed in the office of the city clerk and shall be available to the public. The record of proceedings for the zoning board of appeals shall contain the following information when applicable:
(1) The application for an appeal, variance, or interpretation.
(2) Any reports, plans, surveys or photos.
(3) Notice of public hearing delivered to affected parties and published in a newspaper.
(4) Affidavit of publication of notice of public hearing.
(5) Letter from the zoning official granting or denying the application or referring it to the zoning board of appeals and all other relevant records related to the case.
(6) Record of testimony heard and evidence presented.
(7) A copy of the zoning articles and sections in question.
(8) Briefs, correspondence or other communications made to the zoning board of appeals.
(9) Statement of facts found by the zoning board of appeals, of its own knowledge, regarding the request including any information gained from personal inspection.
(10) Decision of the zoning board of appeals as specifically related to the findings of fact.
(11) A copy of any other correspondence to the appellant regarding the request.
(c) Counsel. The city attorney shall provide legal counsel to the zoning board of appeals when requested. Special legal counsel may be retained for the zoning board of appeals for any purpose deemed necessary provided that such appointment or retainer shall be approved in advance by the city council.
(d) Decisions. The zoning board of appeals shall return a decision on a case within a reasonable time after the hearing on an application or appeal unless a reasonable extension of time is deemed necessary by a majority of the members present. Any decision of the zoning board of appeals shall not become final until the expiration of five days from the date of the decision unless the zoning board of appeals shall find the immediate effect of the decision is necessary for the preservation of property or personal rights and shall so certify on the record.
(e) Deferment by applicant. When considering an appeal pursuant to subsection 94-363(a), or a variance pursuant to subsection 94-363(b), the zoning board of appeals shall defer all proceedings upon the request of the applicant when less than six members of the zoning board of appeals are present for consideration of and voting on said appeal or variance. The right of deferment shall be considered waived by the applicant if deferment is not requested immediately upon the opening of the hearing on the matter. When deferment is requested as required, the zoning board of appeals shall, at that time, determine the date of a future regular or special meeting for the continuation of the hearing and consideration of the matter. Notice previously given for the original hearing date shall constitute notice of the future hearing date with no further notice required.
(Ord. No. 152, 5-1-2006; Ord. 222, § 61, 12-3-2018)
Sec. 94-363. Duties and powers.
(a) Appeals. Upon direct application, the zoning board of appeals shall hear and decide appeals from and review any order, requirement, decision, or determination made by the zoning official under the requirements of this chapter and under the requirements of chapter 58 of this code in accordance with section 94-364 of this chapter.
(1) Zoning. Upon direct application, the zoning board of appeals shall have original jurisdiction to grant a variance from such dimensional requirements as lot area and width regulations, building height and bulk regulations, yard width and depth regulations, and off-street parking and loading space requirements.
(2) Signs. Upon direct application, the zoning board of appeals shall have original jurisdiction to grant a variance from the requirements of chapter 58 of this code.
(c) Interpretation. The zoning board of appeals shall have the power to:
(1) Interpret the provisions of this chapter so as to carry out the intent and purpose of this chapter.
(2) Determine the precise location of the boundary lines between zoning districts.
(Ord. No. 152, 5-1-2006; Ord. No. 241, 3-6-2023)
Sec. 94-364. Appeals.
(a) Letter of appeal. Except as otherwise provided by rule of the board of appeals, a letter of appeal shall be filed with the zoning official within ten days after the action causing the complaint. The appeal shall state the order or interpretation appealed from, specify the grounds for the appeal and specify the basis for standing to appeal.
(1) Standing to appeal. An appeal may be taken by a person aggrieved or by an officer, department, board, or bureau of the city.
(2) Record of action. Upon receipt of a letter of appeal, the zoning official shall immediately transmit to the secretary of the zoning board of appeals the letter of appeal and all documents constituting the record of the action upon which the appeal is based.
(3) Fee. A fee as established by resolution of the city council shall be paid before an appeal shall be considered filed.
(4) Acceptance. The secretary of the zoning board of appeals shall determine, pursuant to this chapter, if a letter of appeal is accepted as being filed in proper form, including the required data and fee. If the letter of appeal is not accepted as being in proper form, the letter of appeal and fee shall be returned by first class mail or hand delivery to the appellant within seven days of filing with the zoning official along with a written explanation of the insufficiency of the letter of appeal.
(b) Public hearing.
(1) When a letter of appeal has been accepted by the secretary of the zoning board of appeals, a public hearing shall be scheduled at the next regularly scheduled meeting or, at the discretion of the secretary, at a special meeting of the zoning board of appeals. Unless otherwise provided by rule of the board of appeals, the scheduled date of the hearing shall be no more than 45 days from acceptance of the appeal.
(c) Action on appeal. The zoning board of appeals may affirm, reverse wholly or partly, or modify the order, requirement, decision, or determination appealed. When action is taken to modify said order or interpretation, the board shall, to that end, have all of the powers of the zoning official.
(d) Majority vote. The concurring vote of a majority of the members appointed to and serving on the zoning board of appeals shall be necessary to reverse any order, decision, or determination of the zoning official.
(e) Stay of proceedings. An appeal accepted pursuant to subsection 94-364(a) stays all proceedings relative to the order, requirement, decision, or determination appealed unless the zoning official certifies to the zoning board of appeals that a stay would cause imminent peril to life or property. Said certificate of imminent peril shall state by reasons of fact why proceedings shall not be stayed. Upon certification by the zoning official, proceedings shall not be stayed except by a restraining order issued by the board or by the circuit court.
(Ord. No. 152, 5-1-2006; Ord. No. 241, 3-6-2023)
Sec. 94-365. Variances.
(a) Variance application and fee. An application for variance shall be filed with the zoning official along with a fee as established by resolution of the city council. The application shall specifically state the requirement(s) of this chapter or chapter 58 from which the variance is requested. The zoning official shall immediately forward the application for variance to the secretary of the zoning board of appeals. The secretary of the zoning board of appeals shall determine, pursuant to this chapter, if the application is accepted as being filed in proper form, including the required data and fee. If the application is not accepted as being in proper form, the application and fee shall be returned to the appellant within seven days of filing with the zoning official along with a written explanation of the insufficiency of the letter of appeal.
(b) Public hearing.
(1) When an application for variance has been accepted by the secretary of the zoning board of appeals, a public hearing shall be scheduled at the next regularly scheduled meeting or, at the discretion of the secretary, at a special meeting of the zoning board of appeals. The scheduled date of the hearing shall be no more than 45 days from acceptance of the application for variance.
(c) Basic conditions, zoning variance from requirements of this chapter. A variance may be granted only when the variance application and other factual evidence demonstrate all of the following:
(1) The variance must be granted in order to avoid practical difficulties not created by the applicant that would result from strict application of the letter of this chapter.
(2) A variance will not permit the establishment within a zoning district of any use not permitted within the district.
(3) A variance will not cause a substantial adverse effect to property or improvements in the zoning district and the immediately surrounding neighborhood.
(4) A variance will not be contrary to the public interest and will insure that the spirit and intent of this chapter will be observed, public safety secured, and substantial justice done.
(5) There is no lesser variance than that applied for which would give substantial relief to the applicant.
(d) Basic conditions, sign variance from requirements of chapter 58. A variance may be granted only when the variance application and other factual evidence demonstrate all of the following:
(1) That the alleged practical difficulties are exceptional and peculiar to the property of the person requesting the variance and result from conditions which do not exist generally throughout the city.
(2) That the alleged practical difficulties which will result from a failure to grant the variance include substantially more than mere inconvenience or mere inability to attain a higher financial return.
(3) That allowing the variance will result in substantial justice being done, considering the public benefits intended to be secured by this chapter, the individual difficulties that will be suffered by a failure of the board to grant a variance, and the rights of others whose property would be affected by the allowance of the variance.
(e) Additional conditions.
(1) The zoning board of appeals may specify reasonable conditions on the approval of a variance which will substantially secure the objectives of the regulations to which the variance applies, be related to the standards established in the chapter for the land use or activity under consideration, and be necessary to ensure compliance with those standards. The conditions may include those necessary to ensure the public services and facilities affected by a proposed land use or activity will be capable of accommodating increased service and facility loads caused by user activity, to protect the natural environment and conserve natural resources and energy, to ensure compatibility with adjacent uses of land, and to promote the use of land in a socially and economically desirable manner. The breach of any condition shall invalidate the variance.
(2) The zoning board of appeals may require that a performance guarantee be provided as a condition of approval in granting any variance as allowed in this article. The performance guarantee shall be provided in accordance with section 94-100 of this chapter.
(f) Majority vote. The concurring vote of a majority of the members appointed to and serving on the zoning board of appeals shall be necessary to grant a variance.
(Ord. No. 152, 5-1-2006; Ord. No. 241, 3-6-2023)