New Haven City Zoning Code
ARTICLE XXIII
Zoning Board of Appeals
§ 515-187 Creation and membership.
[Amended 5-19-2021 by Ord. No. 385]
A.
A Zoning Board of Appeals (ZBA) is hereby created to carry out the responsibilities and exercise the authority provided in this chapter and in Act 110 of the Public Acts of 2006, as amended. The ZBA shall carry out its duties so that the objectives and spirit of this chapter shall be observed, public safety secured, and substantial justice done.
B.
The Village Council shall serve as the ZBA pursuant to MCL § 125.3601(2). The term of a ZBA member shall be limited to the time he or she is a member of the Village Council pursuant to MCL § 125.3601(10).
C.
A vacancy on the Zoning Board of Appeals shall be filled for the remainder of the unexpired term in the same manner as the original appointment pursuant to MCL § 125.3601(11).
D.
The Village Council may appoint two alternate members for the same term as regular members of the ZBA. An alternate member may be called to serve as a regular member of the ZBA in the absence of a regular member if a regular member will be unable to attend one or more meetings of the ZBA. 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 case in which the regular member has abstained for reasons of 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 ZBA.
E.
A member of the ZBA may be removed by the legislative body 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.
F.
The compensation, if any, paid to ZBA members for discharge of their duties shall be established by the Village Council. A failure of action on the part of the Village Council in any year shall be effective action to reestablish the same compensation from the prior year. The compensation shall be in the form of a reasonable per diem and reimbursement for expenses actually incurred in the discharging of duties pursuant to MCL § 125.3601(8).
G.
A member of the ZBA who is also a member of the Village 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 Village Council pursuant to MCL § 125.3601(13). However, the member may consider and vote on other unrelated matters involving the same property.
§ 515-188 Officers.
[Amended 5-19-2021 by Ord. No. 385]
A.
The Village President shall serve as the ZBA Chairperson. The ZBA shall annually elect a Vice Chairperson and a Secretary, each to serve for one year. Such election shall be held at the first regular meeting of the ZBA following January 1 in each calendar year or at the first regular meeting of the ZBA following departure of an existing officer from the ZBA.
B.
The Chairperson shall preside at all meetings of the ZBA. In the absence of the Chairperson, the Vice Chairperson shall preside. The presiding officer, subject to these rules, shall decide all points of order or procedure generally following Robert's Rules of Order. The Chairperson or, in his or her absence, the Acting Chairperson may administer oaths.
§ 515-189 Authority of Zoning Board of Appeals.
A.
In general. The ZBA shall have authority to act on those matters where this chapter provides for administrative review, appeal or interpretation and shall have authority to authorize a variance as defined in this chapter and the law of the State of Michigan. The ZBA shall not have the authority to alter or change zoning district classifications of any property nor to make any change in the text of this chapter.
B.
Administrative review. 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. 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 has not been presented to the administrative official, board or commission from whom the appeal is taken. The ZBA shall not substitute its judgment for that of the administrative official, board or commission being appealed, and the appeal shall be limited to determining, based upon the record, whether the administrative official, board or commission breached a duty or discretion in this chapter.
C.
Interpretation. The ZBA shall have authority to hear and decided requests for interpretation of the Zoning Ordinance, including the Zoning Map. The ZBA shall make such decision so that the spirit and intent of this chapter shall be observed. Text interpretations shall be limited to the issues presented and shall be based upon a reading of the ordinance as a whole, and shall not have the effect of amending the ordinance. Map interpretations shall be made based upon rules in the ordinance and any relevant historical information. In carrying out its authority to interpret the ordinance, the ZBA shall consider reasonable and/or practical interpretations which have been consistently applied in the administration of the ordinance. Prior to deciding a request for an interpretation, the ZBA may confer with staff and/or consultants to determine the basic purpose of the provision subject to interpretation and any consequences which may result from differing decisions. A decision providing an interpretation may be accompanied by a recommendation for consideration of an amendment of the ordinance.
D.
Variances. The ZBA shall have authority in specific cases to authorize one or more variances from the strict letter and terms of this chapter by varying or modifying any of its rules or provisions so that the spirit of this chapter is observed, public safety secured, and substantial justice done. 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)
Strict compliance with restrictions governing area, setback, frontage, height, bulk, density, off-street parking or other non-use matters will unreasonably prevent the owner from using the property for a permitted purpose or will render chapter conformity unnecessarily burdensome.
(b)
The variance will do substantial justice to the applicant, as well as to other property owners.
(c)
A lesser variance than requested will not give substantial relief to the applicant and/or be consistent with justice to other property owners.
(d)
The need for the variance is due to unique circumstances peculiar to the property and not generally applicable in the area or to other properties in the same zoning district.
(e)
The problem and resulting need for the variance has not been self-created by the applicant.
(2)
In all variance proceedings, it shall be the responsibility of the applicant to provide information, plans, testimony and 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 evidence on a variance request. The fact that a Village representative does not appear and/or present information, testimony and/or evidence on a particular variance request shall not be considered or construed as being a waiver of the right to make such a presentation at a later date or an acknowledgment that the information, testimony and/or evidence does not exist and shall not be evidence, in and of itself, that a variance should be granted.
(3)
The following are specified as appropriate considerations by the ZBA in hearing and deciding variance requests, provided that this list shall in no respect constitute a limitation upon the considerations which may be made by the ZBA:
(a)
Other lands, structures, buildings, lots and uses in the same district and in the general vicinity of the property in question.
(b)
Whether granting the variance will confer special privileges on the applicant that have been denied by the chapter and/or ZBA in other cases.
(c)
Whether the requested variance is the minimum necessary to authorize reasonable use of the property in relation to the surrounding area.
(d)
Reasonable and available alternatives, which, although not requested by the applicant, would minimize or eliminate the need for variance relief.
(e)
The provisions of this chapter from which a variance is requested, including the purpose and intent of such provisions within the context of the chapter as a whole.
(f)
The imposition of appropriate and authorized conditions.
(g)
The existence of nonconforming structures, uses of land, or the combination of structures and uses shall not be used as a basis or rational for granting a variance.
E.
Conditions.
(1)
The ZBA may impose reasonable conditions in connection with an affirmative decision on an appeal, interpretation or variance request. The conditions may include requirements necessary to ensure adequacy of public services and facilities affected by a proposed use or 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. Conditions imposed shall meet the following requirements:
(a)
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 a whole.
(b)
Be related to the valid exercise of the police power and purposes which are affected by the proposed use or activity.
(c)
Be necessary to meet the intent and purpose of the Zoning Ordinance, be related to the standards established in the ordinance for the land use or activity under consideration, and be necessary to ensure compliance with those standards.
(2)
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 for a new case or application. Moreover, to ensure adequate notice of a decision and any conditions, the ZBA may require as a condition to the effectiveness of relief granted that the property owner record with County Register of Deeds, in a form acceptable to the ZBA, an affidavit detailing the relief granted and conditions imposed.
§ 515-190 Applications and notices; effect of appeal.
A.
All applications to the ZBA shall be filed with the Village Clerk, on forms provided by the Village, and shall be accompanied by the applicable fee established by resolution of the Village Council. Applications shall include all plans, studies and other information and data to be relied upon by the applicant.
B.
The plan which shall accompany all variance requests shall be based on a mortgage survey or land survey prepared by a registered land surveyor. The plan shall be to scale and shall include all property lines and dimensions, setbacks and all existing and proposed structures. The Zoning Board of Appeals has the authority to require a land survey prepared by a registered land surveyor when the ZBA determines it to be necessary to ensure accuracy of the plan.
C.
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.
D.
As a condition to invoking the jurisdiction of the ZBA, an appeal under § 515-189B shall be taken by the applicant within 30 days of the date of the order, refusal, requirement or determination from which the appeal is being taken. In a case involving an appeal from an action of an administrative official, the administrative official, upon notice from the ZBA, shall transmit to the ZBA copies of all papers constituting the record upon which the action was taken.
E.
Applications to the ZBA shall be made with full knowledge and written consent of all owners of the property in question. This requirement shall include the consent of a land contract seller to the relief sought by a land contract purchaser.
F.
The Village Clerk, or designate, shall provide public notice of a ZBA public hearing in accordance with the public hearing publication and notification procedures required for a rezoning or special land use approval request. Other persons may be notified, at the discretion of the ZBA. Where the case does not relate to a specific site, notification shall be made in the newspaper only.
G.
An appeal shall have the effect of staying all proceedings in furtherance of the action being appealed unless the officer or entity from whom the appeal is taken certifies to the ZBA that, by reason of facts stated in such certification, a stay would in his or her opinion cause imminent peril to life or property, in which case proceedings shall not be stayed unless specifically determined by the ZBA or by a court of competent jurisdiction.
§ 515-191 Meetings and records.
A.
The ZBA shall conduct regular meetings as scheduled each year or at the call of the Chairperson. The Chairperson shall set the time and date for meetings, not to exceed 45 days from the date of application of a specific case. The ZBA shall also conduct such special meetings as shall be called by the Chairperson and/or by a majority of the ZBA members. All meetings of the ZBA shall be conducted in accordance with Act 267 of the Public Acts of 1976, as amended, the Open Meetings Act.
B.
Applicants shall appear at the hearing, either personally or by designated representative, whose identity and authority shall be confirmed by the applicant in writing. Nothing in this subsection shall relieve the applicant from providing competent testimony or evidence in support of the relief requested, including responses to questions or requests by the ZBA regarding the applicant's position on a relevant issue and/or possible conditions on a favorable decision. The ZBA may conduct the required hearing and reach a decision on all applications without the applicant being present if the applicant does not request a continuance in writing prior to the hearing.
C.
The ZBA shall make no decision except in a specific case and after the required hearing.
D.
Three members of the ZBA shall constitute a quorum, without which the ZBA shall not conduct business. The concurring vote of a majority of the membership of the ZBA shall be necessary to reverse any order, requirement, decision or determination of an administrative official, board or commission made in the administration of this chapter or to decide in favor of an applicant on any matter upon which the ZBA is required to pass under this chapter or to grant a variance from the terms of this chapter.
E.
The Secretary of the ZBA shall prepare minutes of the ZBA proceedings, showing the findings, decisions, conditions, if any, and votes of each member in each case, including a member's absence or failure to vote. The minutes shall be within the ultimate authority and shall be the responsibility of the Secretary of the ZBA and shall be subject to approval of the ZBA. To the extent that a written decision in a case is requested or required, the minutes, along with the plan submitted, shall serve as the written decision, even if the minutes are awaiting final ZBA approval.
F.
The official records of the ZBA proceedings shall be filed in the Village Clerk's office and shall be public records.
§ 515-192 Disposition; duration of approval; appeal.
A.
The ZBA may reverse, affirm, vary or modify any order, requirement, decision or determination presented in a case within the ZBA's jurisdiction and, to that end, shall have all of the powers of the officer, board or commission from whom the appeal is taken, subject to the ZBA's scope of review, as specified in this chapter and by law. The ZBA may remand a case for further proceedings and decisions, with or without instructions.
B.
A decision by the ZBA shall be considered final as of the meeting at which the decision has been made, and the date of such meeting shall be deemed to be the date of notice of the decision to the applicant. To the extent that decisions are requested or required to be in writing, the minutes of the ZBA meeting and decision, as prepared by the Secretary, shall constitute the written decision.
C.
Any decision of the ZBA favorable to the applicant shall remain valid only as long as the information and data relating to such decisions are found to be correct and the conditions upon which the decision was based are maintained.
D.
The relief granted by the ZBA shall be valid for a period not longer than one year, unless otherwise specified by the ZBA, and within such period of effectiveness actual on-site improvement of property in accordance with the approved plan and the relief granted under a valid building permit must be commenced or the grant of relief shall be deemed void. Relief granted by the ZBA shall not constitute approval of the use or activity where any other zoning compliance, building permit, or other review or permit is required.
E.
Appeals of a ZBA decision shall be taken in the manner provided by law.