A.

The Zoning Board of Appeals for the City of Muskegon Heights (ZBA) shall consist of three, five, or seven members (with the specific number of members set by the city council) appointed by the mayor with the approval of the city council, who shall serve terms of three years, except for the liaison members who are also on the planning commission or city council, who shall serve only as long as they are members of those bodies. Membership shall be representative of the population distribution and of the various interests present in the city.

B.

One member of the planning commission shall be a member of the ZBA, while a member of the city council may be a member of the ZBA, and the remaining members selected and appointed by the mayor (with city council approval) from the electors of the city. A city council member may not be chairperson of the ZBA.

C.

Meetings shall be held at the call of the chairperson, and at other times as the ZBA in its rules of procedure may specify. The chairperson, or in his/her absence, the acting chairman, may administer oaths and compel the attendance of witnesses.

D.

All meetings of the ZBA shall be open to the public. The ZBA shall maintain a record of its proceedings, which shall be filed in the office of the city clerk, and shall be a public record.

E.

Alternates.

1.

The mayor (with the approval of the city council) may appoint up to two alternate members for the same term as regular members of the ZBA.

2.

An alternate member may be called to sit as a regular member of the ZBA to serve in place of a regular member for the purpose of reaching a decision in a case where the regular member has abstained for reasons of conflict of interest or is absent.

3.

The alternate members of the ZBA may be called to sit as regular members of the ZBA, if a regular member is absent from one or more meetings of the ZBA. An alternate member may also be called to serve in the place of a regular member for reasons of conflict of interest.

4.

The alternate member having been called to serve on a case shall serve on that case until a final decision has been made. The alternate member shall have the same voting rights as a regular member of the ZBA.

5.

The records maintained by the ZBA shall reflect the attendance and participation of an alternate member.

(Ord. No. 19-635, 9-23-19)

A.

Vacancies. If a vacancy occurs in the membership of the ZBA, the mayor with the approval of the city council shall appoint another person to the ZBA for the balance of the unexpired term. Upon expiration of the term of a member of the ZBA, a successor shall be appointed not more than one month after the term of the preceding member has expired.

B.

Removal. A member of the ZBA may be removed by the city 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 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 known conflict of interest constitutes malfeasance in office. Whenever a member of the ZBA has a conflict of interest with respect to a matter presented to the ZBA, the member shall state on the record the nature of the conflict of interest, and the member shall not participate in the ZBA's discussion, consideration, deliberation, or decision of the matter.

(Ord. No. 19-635, 9-23-19)

The ZBA may adopt rules and regulations for the conduct of its meetings. The ZBA shall elect from its membership a chairperson, vice-chairperson, secretary and other officers as deemed necessary. The ZBA shall not conduct business unless a majority of all of its members are present. The presence of a majority of its members shall constitute a quorum.

The regular place and time of meetings of the ZBA may be established by the ZBA in its rules and regulations. Except as otherwise specified in the rules and regulations of the ZBA, the procedure in meetings of the ZBA shall be governed by Robert's Rules of Order.

Minutes of proceedings shall be kept for all ZBA meetings. These minutes shall list the members absent and present and shall show the action taken by the ZBA, as well as the vote of each member upon each matter presented to the ZBA.

(Ord. No. 19-635, 9-23-19)

A member of the ZBA shall not participate or vote with respect to a matter in which the member has a conflict of interest. Failure of a member to refrain from participating or voting in a matter in which the member has a known conflict of interest shall constitute misconduct in office. A conflict of interest exists whenever a member of the ZBA owns land within the city which is significantly affected by a matter presented to the ZBA, or a member has a direct financial interest in the matter presented to the ZBA. A conflict of interest may exist in other circumstances as well.

The members of the ZBA should strive to avoid even the appearance of impropriety. Whenever a member of the ZBA has a conflict of interest or appears to have a conflict of interest with respect to a matter presented to the ZBA, the member shall state on the record the nature of the conflict of interest, or the circumstances which exist which could be perceived to be a conflict of interest. If the member has a conflict of interest, the member shall not participate in the ZBA's consideration of the matter. If circumstances exist which could be perceived to be a conflict of interest, the member, after disclosure of these circumstances, may continue to participate in the ZBA's consideration of the matter if the member can be fair, objective and impartial, subject to the vote of the other members of the ZBA.

Nondisclosure of a known conflict of interest shall constitute misconduct in office, and nondisclosure of circumstances which exist which could be perceived to be a conflict of interest may also constitute misconduct in office.

If a member of the ZBA fails to disclose any circumstances which could be perceived to be a conflict of interest and the ZBA later becomes aware of such circumstances, or if a member of the ZBA participates in the consideration of a matter in which the member has a known conflict of interest, the ZBA may, upon the vote of a majority of the regular members of the ZBA (other than the member who has failed to make the disclosure or who participated in the consideration of a matter in which the member had a conflict of interest), the ZBA may make a recommendation to the city council that the member be removed from the ZBA for misconduct in office. If the ZBA makes such a recommendation to the city council, the city council shall hold a public hearing to consider the recommendation.

(Ord. No. 19-635, 9-23-19)

The zoning board of appeals shall have the power to hear and decide, in accordance with the provisions of this ordinance, appeals involving interpretations of this ordinance made by the zoning administrator, and may make decisions on any other questions on which the ZBA is authorized to pass. In exercising all of its powers, the ZBA shall apply the standards of this section.

A.

Text interpretations. The ZBA may hear and decide upon appeals for the interpretation of the provisions of this ordinance after the zoning administrator has rendered an interpretation. In deciding text interpretations, the ZBA shall be governed by the following such rules.

1.

Text interpretations shall be narrow and address only the situation to be interpreted, be based on a thorough reading of this ordinance and not have the effect of amending this ordinance.

2.

Interpretations shall give weight to practical interpretations by the zoning administrator if applied consistently over a long period of time.

3.

Records shall be kept of all interpretations.

4.

Where the intent of this ordinance is unclear and the facts cannot be read to support only one interpretation, the benefit of the doubt shall go to the property owner.

5.

Nothing contained in this section shall be construed to give or grant to the ZBA the power or authority to alter or change the language of this ordinance.

B.

Map interpretations. When there is any question as to the location of any boundary line between districts, upon an appeal involving an interpretation of the zoning map from a decision of the zoning administrator, the ZBA shall establish the boundary based upon the map and all available information relating thereto and shall establish the boundaries to carry out the intent and purposes of this ordinance and the master plan.

C.

[Appeal.] Any appeal shall be filed in writing with the city within 14 days of the date when the zoning administrator makes his/her interpretation.

(Ord. No. 19-635, 9-23-19)

A.

Upon application, the ZBA shall hear and decide appeals from and review any order, requirements, decision or determination made by the zoning administrator or other official or body charged with the administration of this ordinance. Any person aggrieved may make an appeal to the ZBA. The grounds of every appeal shall be stated in writing as part of the application.

B.

An application for appeal shall be filed with the city within 14 days after the date of the decision that is the basis of the appeal. The appealing party shall file the notice of appeal with the city on the form required by the city and pay the required fee or fees with the zoning administrator. The notice shall specify the nature and grounds of the appeal and the application fee or fees shall be submitted to the city in an amount or amounts as established by the city council from time to time.

C.

The zoning administrator shall transmit to the ZBA all the papers constituting the record upon which the action being appealed was taken.

D.

An appeal stays all proceedings from furthering the action being appealed unless the zoning administrator certifies to the ZBA that a stay would, in their opinion, cause imminent peril to life or property, in which case proceedings shall not be stayed other than by a restraining order which may be granted by the ZBA or by the Circuit Court.

E.

The ZBA shall fix a reasonable time for the hearing of the appeal, and give due notice to the applicant and all property owners and occupants within 300 feet of the subject property via a letter sent first class mail not less than 15 days before the public hearing the time and place of the hearing. Any party may appear in person or by agent. A public hearing notice shall also be published in a newspaper of general circulation not less than 15 days before the public hearing. See also, section 17.10.

F.

Following the public hearing, the ZBA shall decide the matter within a reasonable time. The ZBA may reverse or affirm, wholly or partly, or may modify the order requirement, decision or determination, and to that end, shall have all the powers of the zoning administrator and may issue or direct the issuance of a permit.

(Ord. No. 19-635, 9-23-19)

A.

Non-use (dimensional) variances. The ZBA may authorize upon written application in specific cases variances from the terms of this ordinance where, owing to special conditions related to the applicant's property, a literal enforcement of the provisions of this ordinance would result in a practical difficulty to the applicant. A variance from the terms of this ordinance shall not be granted by the ZBA unless and until a written application for a variance is submitted and the ZBA finds that all of the following standards are met:

1.

That there are exceptional or extraordinary circumstances or conditions applying to the property in question that do not apply generally to other properties in the same zoning district. Exceptional or extraordinary circumstances or conditions include:

a.

Exceptional narrowness, shallowness or shape of a specific property on the effective date of this chapter;

b.

By reason of exceptional topographic conditions or other extraordinary situation on the land, building or structure;

c.

By reason of the use or development of the property immediately adjoining the property in question, whereby the literal enforcement of the requirements of this ordinance would involve practical difficulties; or

d.

Any other physical situation on the land, building or structure deemed by the ZBA to be extraordinary.

2.

That the condition or situation of the specific piece of 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 situations.

3.

That the variance is necessary for the preservation and enjoyment of a substantial property right similar to that possessed by other properties in the same zoning district and in the vicinity. The possibility of increased financial return shall not of itself be deemed sufficient to warrant a variance.

4.

The variance will not be significantly detrimental to adjacent property and the surrounding neighborhood.

5.

The variance will not impair the intent and purpose of this ordinance.

6.

That the immediate practical difficulty causing the need for the variance request was not created by any affirmative action of the applicant or the applicant's predecessors in title.

7.

That the reasons set forth in the application justifies the granting of the variance and that the variance is the minimum variance necessary.

B.

Use variances. Subject to other provisions of this ordinance, the ZBA shall have the jurisdiction to decide applications for use variances. The ZBA shall not grant a use variance unless it finds that an unnecessary hardship will occur unless the variance is granted. Additionally, the ZBA shall not grant a use variance unless it also finds that all of the following standards below are met:

1.

The variance request, if granted, will be the minimum variance (i.e., the least variation or change from the particular requirement of the ordinance involved) that will make possible the reasonable use of the land, structure, or building involved.

2.

The granting of the variance will not be injurious or detrimental to neighboring properties or residents.

3.

The variance will not be detrimental to the public welfare or change the essential character of the neighborhood.

4.

The variance will not impair the intent or purpose of this ordinance.

5.

The problem or condition for which the variance is requested is not a self-created problem by the applicant or property owner (or their predecessors in title) as to the property involved.

6.

The condition or situation involved is not of so general or recurrent a nature that it would be more reasonable or practical for the city to amend the provision of the ordinance involved rather than to grant a variance for the condition or situation.

7.

There are exceptional, unique, or extraordinary physical conditions or circumstances which directly relate to the property itself (including the land or a structure or building thereon) rather than the individual situation or desire of the applicant or property owner. In other words, the problem or exception or extraordinary circumstances or conditions must be inherent in the land, structure, or building involved.

8.

The variance must be necessary for the preservation and enjoyment of a substantial property right which is similar to that possessed by other properties in the same zoning district and vicinity. (NOTE—A possible increased financial return shall not, of itself, be deemed sufficient to warrant a variance.)

9.

As specified above, the ZBA must also find that unnecessary hardship will occur if a use variance is not granted.

No use variance shall be granted unless at least two-thirds of all members of the ZBA vote in favor of such use variance. Furthermore, before the members of the ZBA may vote on a given use variance request, the matter shall be referred to the planning commission. The planning commission shall be asked for its recommendation regarding the proposed use variance request. The ZBA may take final action regarding such a use variance request once the planning commission has forwarded its recommendation on the particular use variance request to the ZBA or 45 days has elapsed since the referral to the planning commission, whichever occurs first.

(Ord. No. 19-635, 9-23-19)

A.

Applications for variances shall be submitted to the zoning administrator who will review the application for completeness and validity, then transmit it to the zoning board of appeals is complete. Applications not meeting the requirements shall be returned to the applicant for completion.

B.

A valid application for a variance to the ZBA shall consist of all of the following:

1.

Ten copies of a site plan drawn to scale, which is sufficient to describe the nature of the request.

2.

A completed application form as provided by the city.

3.

Payment of the application fee or fees, in accordance with a fee schedule, as determined by the city council from time to time.

4.

An escrow deposit where applicable.

5.

A legal description and/or parcel number of the entire property that is the subject of the request.

6.

A statement with regard to compliance with the standards of as applicable.

7.

Other materials as may be required by the ZBA or the city.

C.

A public hearing shall be held and noticed pursuant to section 17.10.

(Ord. No. 19-635, 9-23-19)

A.

The concurring vote of a majority of the members of the ZBA shall be necessary to reverse any order, requirement, decision, or determination of any administrative official or body or to decide in favor of the appellant on any matter. The ZBA shall render its decision upon any appeal or application submitted to it within a reasonable time after the hearing thereon. However, no use variance shall be granted unless at least two-thirds of all of the members of the ZBA vote in favor thereof.

B.

The ZBA may require a performance guarantee or guarantees and/or impose reasonable conditions in conjunction with the approval of an appeal, variance, or any other decision that it is required to make. Conditions shall be imposed in a manner in accordance with the Zoning Act and be related to the standards by which the decision is reached.

C.

All decisions of the ZBA shall become final at the entry of an order, or at the adoption of the minutes, unless the ZBA shall find, and so certify on the record, that it is necessary to cause the order to have immediate effect, in order to preserve property or personal rights.

D.

For each decision of the ZBA, a record shall be prepared including at a minimum, the following items:

1.

Description of the applicant's request.

2.

The ZBA's motion and vote.

3.

A summary or transcription of all competent material and evidence presented at hearing.

4.

Any conditions attached to an affirmative decision.

E.

The decision of the ZBA shall be final. However, a party aggrieved by the decision of the ZBA may appeal to the circuit court. Upon appeal, the circuit court shall review the record in accordance with the requirements of the Zoning Act. The court may affirm, reverse, or modify the decision of the ZBA, or may remand the decision to the ZBA for further hearings or action.

F.

Period of validity. No variance granted by the ZBA shall be valid for a period longer than 12 months, from the date of its issuance if not used. However the applicant may, upon written request, seek up to one 12-month extension of the variance from the ZBA. The ZBA may grant an extension provided that the original circumstances authorizing the variance have not changed and that the circumstances creating the need for the extension were reasonably beyond the control of the applicant.

(Ord. No. 19-635, 9-23-19)

The zoning board of appeals may require a performance guarantee or guarantees to ensure compliance with any conditions associated with the granting of a variance.

(Ord. No. 19-635, 9-23-19)

No variance request (or similar request) that has been decided by the ZBA shall be submitted for reconsideration within a one-year period from the date of the original application unless the ZBA finds that at least one of the following conditions exists:

A.

That the conditions involving all of the reasons for the original denial have been significantly altered; or

B.

That new conditions or circumstances exist which change the nature of the original request.

(Ord. No. 19-635, 9-23-19)

The ZBA is without jurisdiction to hear any appeals or matters involving any of the following:

A.

A planned unit development (PUD).

B.

A special land use.

C.

Site plan decisions.

Notwithstanding the fact that the ZBA generally has no jurisdiction with regard to the above-mentioned matters, the ZBA shall have jurisdiction to entertain variance requests related to subsections A, B, and/or C above, if the city body which makes the final decision regarding the matter (for example, the city council with regard to a PUD or the planning commission with regard to a special land use) expressly grants written permission to the landowner or applicant involved to apply to the ZBA for a variance of one or more of the underlying requirements of the zoning ordinance. For example, but not by way of limitation, the planning commission could approve a particular special land use request contingent upon the ZBA granting a variance for an otherwise applicable requirement within the ordinance which would normally prohibit the applicant or landowner from taking advantage of a special land use approval absent a variance.

(Ord. No. 19-635, 9-23-19)

In the event that the ZBA grants a variance, the individual or successor in interest as to the property involved shall not use the property in question such that it would exceed the rights given by the zoning ordinance or the variance or fail to follow any conditions placed thereon by the ZBA. In the event that the use of the property exceeds those rights given by the zoning ordinance or the variance, or the property owner fails to follow the conditions placed upon the variance, the variance shall immediately terminate. Alternately, in such case, the ZBA shall also have the authority to terminate a variance after reasonable notice and hearing.

(Ord. No. 19-635, 9-23-19)

The ZBA shall not give advisory, informal, or hypothetical opinions or decisions.

(Ord. No. 19-635, 9-23-19)