It is the intent of this Chapter to ensure that the objectives of this Ordinance are fully and equitably achieved, that a means be provided for competent interpretation of this Ordinance, that adequate but controlled flexibility be accomplished in the strict application of its provisions, and that the spirit of this Ordinance be observed, public safety secured, and substantial justice done.

A.

The Zoning Board of Appeals shall consist of five (5) members appointed by the City Council, consisting of the following members;

1.

Mayor.

2.

Planning Commission Chairperson.

3.

TIFA Chairperson.

4.

PSD Chairperson.

5.

Newaygo Economic Development Office Representative.

Each member shall hold office for the extent of term of their respective office. If there is a conflict with a member listed above, another member shall be selected from the respective board.

B.

Alternates.

1.

The Council may appoint not more than two (2) alternate members for a term of (3) years.

2.

An alternate member may be called to sit as a regular member of the Board in the absence of a regular member or 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.

3.

Once called, the alternate member shall act in place of the regular member on the Board until a final decision is made on the application for which the alternate member was called.

4.

When serving as a member, an alternate member shall have the same voting rights as a regular member of the Board.

A.

The Zoning Board of Appeals may adopt rules and/or procedures for the conduct of its meetings and the performance of its powers and duties. The procedures shall be in accord with the provisions of this Ordinance and applicable State law. The Board chairperson, vice chairperson, and secretary shall be the Mayor, a Board member appointed by the Board and the City Clerk, respectively.

B.

Meetings of the Zoning Board of Appeals shall be held at the call of the Chairperson and at such other times as the Board may specify in its rules of procedure. The applicable provisions of Public Act 267 of 1976, as amended, MCLA 15.261 et seq. (Open Meetings Act) shall apply.

C.

A majority of the total membership of the Board, three (3) members, shall comprise a quorum.

D.

Minutes shall be kept of each meeting and the Zoning Board of Appeals shall record into the minutes all findings, conditions, facts, and other relevant factors, including the vote of each member upon each case. All minutes shall be filed in the office of the City Clerk. The City Clerk, or the Clerk's agent, shall act as recording secretary to the Zoning Board of Appeals, including recording the minutes, publishing legal notices, and providing notices to property owners and others required by law.

E.

Applications shall not be accepted by the Zoning Administrator unless all of the following information is submitted:

1.

A completed application form (provided by the City).

2.

An accurate, scaled site plan with enough information to clearly indicate the nature of the issue being considered. The Zoning Administrator shall determine the completeness and adequacy of submitted plans.

3.

An application fee, as determined by the City Council from time-to-time, together with a zoning escrow amount if applicable.

4.

A written explanation from the applicant indicating compliance with the applicable review standards of Section 23.04, or other applicable provisions of this Ordinance.

F.

The City Clerk shall fix a reasonable time and date for a public hearing after receipt of an application as required by this Chapter.

1.

The Clerk shall give notice of the appeal or the matter involved to the applicant and the persons to whom real property within 300 feet of the premises in question is assessed, and to the occupants of single and two-family dwellings within 300 feet. The notice shall be delivered personally or by mail addressed to the respective owners and tenants at the address given in the last assessment roll. If a tenant's name is not known, the term "occupant" may be used. A notice shall also be placed in a newspaper of general circulation in the City not less than 15 days before the public hearing. The notice shall describe the nature of the request, list the name of the applicant or appealing party, indicate the subject property involved, state when and where the request will be considered, and indicate when and where written comments will be received concerning the appeal or request.

2.

The Board may adjourn any meeting held in order to allow the obtaining of additional information, or for other reasons it deems appropriate.

A.

The Zoning Board of Appeals shall hear only those matters that it is authorized to hear by the Zoning Act and this Ordinance and shall render its decision based upon the criteria contained in this Ordinance. The Zoning Board of Appeals shall not hear appeals for Special Land Use and Planned Unit Developments. The Zoning Board of Appeals shall hear the following applications in accordance with the indicated procedures and standards.

B.

Administrative Appeals: Any appeal from a ruling of the Zoning Administrator (whether it involves an interpretation, the need for a variance, or similar matter) shall be made within (30) days from the date of the decision of the Zoning Administrator. Such appeal shall be made in writing and shall be filed with the Zoning Administrator, and shall be on a form approved by the City.

C.

Interpretations: The Zoning Board of Appeals shall have the power to make an Interpretation of the provisions of this Ordinance when it is alleged that certain provisions are not clear or that they could have more than one (1) meaning. In deciding upon the request, the Board shall ensure that its interpretation is consistent with the intent and purpose of this Ordinance and the Chapter in which the language in question is contained.

D.

Variances:

1.

The Zoning Board of Appeals, after public hearing (see Section 23.03.F), shall have the power to grant requests for variances from the provisions of this Ordinance where it is proved by the applicant that there are practical difficulties or unnecessary hardships in the way of carrying out the strict letter of the Ordinance relating to uses or the construction, equipment, or alteration of buildings or structures.

2.

Non-use (Dimensional) Variance: (These variances address height, setback, and area requirements. They are often granted for parcels that have a unique characteristic, such as an irregular shape or a natural circumstance [e.g. steep hill, wetland, water, rock, etc.] which prevent property owners from building within established dimensional requirements.) A non-use variance may be allowed by the Zoning Board of Appeals only in cases where there is reasonable evidence of practical difficulty related to the property in question in the official record of the hearing and the Board also finds that all of the following standards are met:

a.

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:

(1)

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

(2)

Exceptional topographic conditions or other extraordinary situation on the land, building or structure; or

(3)

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

(4)

There is a physical handicap affecting the owners of the property or any member of the family of an owner who resides on the property which impairs the ability of the disabled person to utilize or access the property.

(5)

Any other physical situation on the land, building or structure deemed by the Zoning Board of Appeals to be extraordinary.

b.

The condition or situation of the specific parcel 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.

c.

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.

d.

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

e.

The immediate practical difficulty causing the need for the variance request was not created by any affirmative action of the applicant (i.e. the difficulty was not created by the applicant or the applicant's predecessor).

f.

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

g.

The variance, if granted, would be the minimum variance to afford relief and would be the least modification of the applicable provisions of this Ordinance.

3.

Use Variances: (This type of variance permits a use of land not otherwise permitted in that zoning district on that parcel. A use variance effectively rezones the parcel without prior approval of the planning commission and legislative body. They are considered inappropriate except in one instance, when the property cannot be reasonably used as zoned and other attempts to obtain local approval [e.g., via a rezoning] have been denied.) A use variance may be allowed by the Zoning Board of Appeals only in cases where there is reasonable evidence of unnecessary hardship related to the property in question in the official record of the hearing and that the Board also finds all of the following standards are met:

a.

The building, structure, or land cannot be reasonably used for a use allowed in the zone district in which it is located.

b.

The condition or situation of the specific parcel of property or the intended use of such property for which the variance is sought is unique to that property and not commonly present in the general vicinity or in the zone district. Unique conditions or situations include:

(1)

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

(2)

Exceptional topographic conditions or other extraordinary situation on the land, building or structure;

(3)

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

(4)

Any other physical situation on the land, building or structure deemed by the Zoning Board of Appeals to be extraordinary.

c.

The proposed use will not alter the essential character of the neighborhood or the intent of the Master Plan.

d.

The immediate unnecessary hardship causing the need for the request was not created by any affirmative action of the applicant (i.e., the hardship was not caused by the applicant or the applicant's predecessor).

e.

The variance, if granted, would be the minimum variance to afford relief and would be the least modification of the applicable provisions of this Ordinance.

4.

Prior to the decision of the Zoning Board of Appeals on a request for a Use Variance, the Board may request that the Planning Commission, upon presentation by the applicant, consider the application and forward a report to the Zoning Board of Appeals. The report shall be limited to the Planning Commission's review of the effect of the proposal on the existing or intended character of the neighborhood (Section 23.04, D, 3, c) and the ability of the property owner to use the property for a use already permitted under the existing zoning classification (Section 23.04, D, 3, a).

A.

The final disposition of any matter of the Zoning Board of Appeals shall require a ⅔ vote (at least four (4) votes) of the entire membership.

B.

Any decision of the Zoning Board of Appeals rendered under the provision of this Ordinance shall be final. However, a person having an interest affected by the zoning ordinance may appeal to the Circuit Court.

C.

Every variance granted under the provisions of this Ordinance shall become null and void unless the construction authorized by such variance has been substantially commenced within six (6) months after the date of the final decision.

1.

An applicant may request up to one (1) six (6) month extension of said variance from the Zoning Board of Appeals, if applied for in writing prior to the expiration of the variance approval.

2.

The Zoning Board of Appeals 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 beyond the reasonable control of the applicant.

D.

No application for a variance which has been denied wholly or in part (substantially similar to a variance earlier denied) by the Zoning Board of Appeals shall be resubmitted for a period of one (1) year from the date of the denial, except on the grounds of newly discovered evidence or proof of changed conditions found, upon inspection by the Zoning Administrator, to be valid.

A.

The Zoning Board of Appeals may impose specific conditions with an affirmative decision. The breach of any condition shall be a violation of this Ordinance.

B.

Performance Guarantee: The Zoning Board of Appeals may require submission of a performance guarantee in accordance with the provisions of Section 24.10 to ensure compliance with any conditions or requirements imposed with any decision of the Board.

C.

Certification of Compliance: The Zoning Administrator shall certify whether all conditions and other requirements of a decision reached by the Board have been fulfilled, as a precondition to the issuance of any permit required for development, construction, occupancy or use within the area governed by the decision.