Michiana City Zoning Code
ARTICLE VII
Zoning Board of Appeals
§ 360-50 Purpose.
The purpose of this article is to establish a Zoning Board of Appeals (ZBA) pursuant to Public Act 110 of 2006,[1] including its responsibilities, procedures and standards of review, to ensure that the objectives of this chapter are fully and equitably achieved.
[1]
Editor's Note: See the Zoning Enabling Act, MCLA § 125.3601 et seq.
§ 360-51 Creation and membership.
The Zoning Board of Appeals shall consist solely of the members of the Village Council, and they shall sit as the Zoning Board of Appeals members for their respective entire terms of office as members of the Village Council.
§ 360-52 Organization.
A.
Rules of procedure and officers. The ZBA may adopt rules of procedure for the conduct of its meetings and the implementation of its duties. The ZBA shall annually elect from its members a chairperson, vice chairperson and secretary.
B.
Meetings and quorum. Meetings of the ZBA shall be held at the call of the Chairperson and at such other times as the ZBA in its rules of procedure may specify. A majority of the total regular membership of the ZBA shall comprise a quorum. The ZBA shall not conduct official business unless a quorum is present. All meetings shall be open to the public and conducted pursuant to the requirements of the Open Meetings Act.[1]
[1]
Editor's Note: See MCLA § 15.261 et seq.
C.
Oaths and witnesses. The Chairperson or, in his or her absence, the Acting Chairperson, may administer oaths and compel the attendance of witnesses.
D.
Records. The ZBA shall maintain a record of its proceedings, which shall be filed in the office of the Village Clerk, and shall be a public record according to the Freedom of Information Act. All minutes shall state the grounds for each determination, including findings of fact and conclusions.
§ 360-53 Jurisdiction.
The ZBA shall act upon questions as they arise in the administration of this chapter and take other actions as specified in this chapter. The ZBA shall perform its duties and exercise its powers as provided in Public Act 110 of 2006. The ZBA shall not have the power to alter or change the zoning district classification of any property, nor make any change in the terms or intent of this chapter, but shall have the power to act on those matters so specified in this chapter including ordinance interpretations, variances and the review of any order, requirements, decision or determination made by an administrative official or body charged with the enforcement of this chapter.
§ 360-54 Appeals for administrative reviews.
A.
Authority. The ZBA shall hear and decide appeals where it is alleged by the appellant that there is an error in any order, requirement, permit, decision or refusal made by the Zoning Administrator or by any other body or official in administering or enforcing the provisions of this chapter. Within this capacity, the ZBA may reverse or affirm, wholly or partly, or may modify the order, requirement, decision or determination of such body or official. The ZBA shall have all the powers of the body or official from whom the appeal is taken. However, in no case shall the ZBA hear an appeal of a special land use decision.
B.
Standards. The ZBA shall reverse or otherwise modify the decision of such body or official from whom the appeal is taken only if it finds that the action or decision appealed:
(1)
Was arbitrary or capricious; or
(2)
Was based upon an erroneous finding of a material fact; or
(3)
Constituted an abuse of discretion; or
(4)
Was based upon erroneous interpretation of the Zoning Ordinance or zoning law; or
(5)
Did not follow required procedures.
C.
Application requirements. A written application for an appeal for administrative review shall be completed and filed with the Zoning Administrator on forms established for that purpose within 21 days after the date of the meeting during which the meeting minutes addressing the decision being appealed was approved. Application for an administrative review shall specify, at a minimum, the name, address and phone number of the applicant; the decision being appealed; and the basis for the appeal. See § 360-13 regarding application fees.
D.
Record of facts; transmission of record. Upon receipt of an application, the officer or body from whom the appeal is taken shall transmit to the ZBA all papers constituting the record upon which the action appealed from was taken. In hearing and deciding appeals under this subsection, the ZBA's 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 or body from whom the appeal is taken.
§ 360-55 Interpretations.
A.
Authority. The ZBA shall hear and decide upon requests to:
(1)
Interpret the provisions of this chapter when it is alleged that certain provisions are not clear or that they could have more than one meaning. In deciding upon such request, the ZBA shall ensure that its interpretation is consistent with the intent and purpose of the chapter, the article in which the language in question is contained, and all other relevant provisions in the chapter.
(2)
Determine the precise location of the boundary lines between zoning districts. (See Article IV.)
(3)
Classify a use which is not specifically mentioned as a part of the use regulations of any zoning district so that it conforms to a comparable permitted or prohibited use, in accordance with the purpose and intent of each district. Where there is no comparable permitted or prohibited use, the ZBA shall so declare, the effect being that use is not permitted in the Village until or unless the text of the chapter is amended to permit it.
B.
Consultation. Prior to deciding a request for an interpretation, the ZBA may confer with Village staff and consultants to determine the basic purpose of the provision subject to interpretation and any consequences which may result from differing decisions. Such consultations, when in the presence of a quorum of the ZBA, shall comply with the Open Meetings Act.
C.
Application requirements. A written application for an interpretation shall be completed and filed with the Village Clerk on forms established for that purpose. Application for an interpretation shall specify, at a minimum, the name, address and phone number of the applicant; the standard, regulation or provision requiring an interpretation; and a plot plan, site plan or similar drawing illustrating the application or relevance of such interpretation. See § 360-13 regarding application fees.
§ 360-56 Variances.
A.
Authority. The ZBA shall have the power to authorize specific variances from specific site development requirements contained in this chapter, such as lot area and width requirements, building height and bulk requirements, setback requirements, yard width and depth requirements, off-street parking and loading space requirements, and sign requirements, and from use of land requirements.
B.
Standards.
(1)
Required findings for nonuse variance (dimensional variance). The ZBA shall have the power to authorize variances from specific site development requirements, provided that all of the standards listed below are met and the record of proceedings of the ZBA contains evidence supporting each conclusion:
(a)
That there are practical difficulties that prevent carrying out the strict letter of this chapter due to unique circumstances, such as narrowness, shallowness, shape or topography of the property involved, or to the intended use of the property, that do not generally apply to other property or uses in the same district, and shall not be recurrent in nature. These difficulties shall not be deemed economic but shall be evaluated in terms of the use of a particular parcel of land.
(b)
That the practical difficulty or special condition or circumstance does not result from actions of the applicant.
(c)
That the variance will relate only to property described in the variance application.
(d)
That the variance will be in harmony with the general purpose and intent of this chapter and will not cause a substantial adverse effect upon surrounding property, property values and the use and enjoyment of property in the neighborhood or district.
(e)
That strict compliance with site development standards, such as lot area, setbacks, frontage, height and parking spaces would unreasonably prevent the owner from using the property for a permitted purpose or would render conformity unnecessarily burdensome.
(f)
That the variance requested is the minimum amount necessary to overcome the inequality inherent in the particular property or mitigate the practical difficulties.
(2)
Required findings for use variance. The ZBA shall have the power to authorize variances from requirements of this chapter pertaining to permitted uses of land, provided that all the required findings listed below are met and the record of proceedings of the ZBA contains evidence supporting each conclusion.
(a)
Applicant's property cannot be used for the purposes permitted in the zoning district.
(b)
Applicant's plight is due to unique circumstances peculiar to the property and not to general neighborhood or surrounding conditions.
(c)
Applicant's proposed use would not negatively impact or alter the essential character of the area.
(d)
Applicant's plight has not been self-created.
C.
Application requirements. Application for a variance shall specify, at a minimum, the name, address and phone number of the applicant; the legal description for the lot subject to the variance; a specification of the chapter's standards for which a variance is sought and the specific variance being requested; and a plot plan, site plan or similar drawing that adequately illustrates the proposed improvements to the lot for which the variance is requested. 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, including any information the applicant may chose to submit to demonstrate conformance with the standards of Subsection B above.
§ 360-57 Procedures.
A.
Application. Written application to the ZBA shall be completed and filed with the Village Clerk on forms established for that purpose.
B.
Stay; record of facts; transmission of record. An appeal for an administrative review filed under § 360-54 stays all proceedings in furtherance of the action appealed from unless the officer or body from whom the appeal is taken certifies to the ZBA, 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 of Appeals 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. Upon receipt of an application for an administrative appeal, the officer or body from whom the appeal is taken shall transmit to the ZBA all papers constituting the record upon which the action appealed from was taken.
C.
Hearing. Upon receipt of an application, the Chairperson of the ZBA shall fix a reasonable time and date for a hearing, taking into account adequate time for members of the ZBA to review the application prior to such hearing. Notice of the hearing shall comply with § 360-16. See § 360-12 regarding timely action. At the hearing, any party may appear in person or by agent or attorney.
D.
Decision. The Zoning Board of Appeals shall have up to 60 days to review a variance request before making a recommendation to the Village Council. The ZBA shall render a decision in the form of a motion or resolution containing a full record of the findings and determination of the ZBA. The concurring vote of a majority of the members of the ZBA shall be necessary to grant a nonuse or dimensional variance; to make an interpretation of the chapter; to reverse, affirm or modify an order, requirement, decision or determination of an administrative official or body; or to decide in favor of the applicant on any matter upon which they are required to pass under or to effect any variation in this chapter, except that a minimum 2/3 vote of the ZBA membership is necessary to grant a use variance. The ZBA shall state the grounds for each decision, and such grounds shall be placed in the record.
(1)
Interpretations. A decision providing an interpretation may be accompanied by a recommendation to the Planning Commission for consideration of an amendment of the Zoning Ordinance.
(2)
Administrative appeals. In hearing and deciding administrative appeals, the ZBA's 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 or body from whom the appeal is taken.
(3)
Variances.
(a)
In granting any variance, the ZBA may prescribe appropriate conditions and safeguards in conformity with this chapter. Violations of such conditions and safeguards, when made a part of the terms under which the variance is granted, shall be deemed a violation of this chapter. See § 360-25 regarding conditional approvals.
(b)
A variance shall become null and void unless the construction authorized by such variance has been commenced within six months after the granting of the variance; and the occupancy or use of the land, structure and/or building for which the variance was granted has taken place within one year after the granting of the variance. The ZBA may extend this time limit upon its finding that no substantial changes have occurred to ordinance regulations, abutting properties or other conditions that undermine the basis for the original issuance of the variance.
(c)
No application for a variance which has been acted upon shall be resubmitted for a period of one year from the date of the last denial, except on the grounds of newly-discovered evidence or proof of changed conditions having bearing on the basis for the original action, in the discretion of the ZBA.
§ 360-58 Review by Circuit Court.
The decision of the ZBA shall be final. However, any party aggrieved by an order, determination or decision of the ZBA may obtain a review thereof both on the facts and the law in the Circuit Court. The filing of an appeal to the Circuit Court shall be filed within 30 days after the ZBA certifies its decision in writing or approves the minutes of its decision. The Circuit Court shall review the record and decision of the ZBA to ensure that the decision:
A.
Complies with the Constitution and laws of the state.
B.
Is based upon proper procedure.
C.
Is supported by competent, material and substantial evidence on the record.
D.
Represents the reasonable exercise of discretion granted by law to the ZBA.