There is hereby established a Zoning Board of Appeals (herein referred to as the "ZBA"), which shall perform its duties and exercise its power as provided for in this Ordinance and the Michigan Zoning Enabling Act, PA 110 of 2006, as amended, in such a way that the objectives of this Ordinance shall be served, public health, safety and welfare protected and substantial justice done.

The Zoning Board of Appeals shall consist of five (5) members appointed by the Mayor and confirmed by City Council. One (1) member of such board shall be a member of the Planning Commission, and the commissioner's term on the board shall be co-terminus with the member's term on the Planning Commission. An elected officer of the City shall not serve on the Zoning Board of Appeals.

The term of each member shall be three (3) years. A successor shall be appointed not more than one (1) month after the term of the preceding member has expired. All vacancies for unexpired terms hall be filled for the remainder of the term. The expiration dates of terms for the zoning board of appeals shall be such that at least one (1) member's term expires each year. With approval of council, the mayor may appoint at least two (2) alternate members, who shall serve for three (3) years.

A.

Rules of Procedure. The Zoning Board of Appeals shall adopt rules and/or procedures for the conduct of its meetings and the performance of its powers and duties. The procedures shall be in accordance with the provisions of this Ordinance and applicable state law.

B.

Meeting Dates. Meetings of the Zoning Board of Appeals shall be held at the call of the Chairperson.

C.

Quorum. A majority of the total membership of the Board (four (4) members) shall comprise a quorum.

D.

Minutes. 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 appeal case. All meetings and records shall be open to the public. 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.

Additional Information. The Board may adjourn any meeting held in order to allow the obtaining of additional information, or to provide further notice as it deems necessary.

A.

Applications. Applications shall not be accepted unless all of the following information is submitted:

1.

A completed application form and fee;

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 of such plans;

3.

A written explanation from the applicant indicating why the application meets the applicable review standards of this Ordinance.

B.

Public Notice. Upon receipt of an application as required by this Ordinance, the Chairperson of the Zoning Board of Appeals shall fix a reasonable time and date for a public hearing. Once a time and date is set for the hearing, notice shall be given consistent with the requirements of Section 11.09.

The Zoning Board of Appeals shall not have the power to make any changes to the Zoning Ordinance, but does have power to act on those matters where this Ordinance provides for an administrative review, interpretation, and to authorize a variance as defined in this Section and the laws of the State of Michigan. The powers of the Zoning Board of Appeals include:

A.

Appeals of Administrative Decisions. To 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 any other administrative official in carrying out or enforcing any provisions of this Ordinance.

B.

Interpretations. The Zoning Board of Appeals may interpret the provisions of this Ordinance to carry out the intent and purposes of the Zoning Ordinance where the meaning of the provisions is uncertain.

C.

Variances. A variance from the specific requirements of this Ordinance may be granted by the Zoning Board of Appeals in accordance with the requirements and procedures of this Ordinance.

A.

Applicability.

1.

The ZBA shall hear and decide appeals where it is alleged there is error in any order, requirement, decision or determination made by the person or body charged with administration or enforcement of the Zoning Ordinance.

2.

The Zoning Board of Appeals may hear an appeal of a Planning Commission decision on a Special Land Use request.

B.

Procedure.

1.

Such appeals may be taken to the ZBA by the person, firm or corporation aggrieved, or by an officer, department, board or bureau of the City affected by the order, requirement, decision or determination, provided that a notice of appeal application is filed with the City within twenty-one (21) days of the decision.

2.

An appeal shall stay all administrative or enforcement proceedings associated with the appeal, unless the City Building Official certifies to the ZBA that, by reason of facts stated in the certificate, a stay in the opinion of the City Building Official would cause imminent peril to life or property.

C.

ZBA Decision.

1.

The ZBA shall reverse an administrative decision only after finding that the order, requirement, decision or determination was arbitrary or capricious, based upon an erroneous finding of a material fact, constituted an abuse of discretion, or based upon an erroneous interpretation of the Zoning Ordinance.

The ZBA shall have the power to hear and decide requests for interpretations of Zoning Ordinance provisions in such a way as to preserve and promote the character of the Zone District in question and carry out the intent and purpose of this Ordinance, the Master Plan or any sub-area plans. This shall not include use determinations as provided for in this Ordinance, except upon appeal of a determination that has been made.

The ZBA shall have authority in specific cases to authorize one (1) or more dimensional or non-use variances from the strict letter and terms of this Ordinance by varying or modifying rules or provisions so that the spirit of this Ordinance is observed, public safety secured, and substantial justice done. A dimensional or non-use variance allows a deviation from the dimensional (i.e., height, bulk, setback) requirements of the Ordinance or other provisions not related to the permitted use of a property in a particular Zone District.

A.

Non-use Variances. The ZBA may grant a requested "non-use" variance only upon a finding that practical difficulties exist. To demonstrate practical difficulty, the ZBA must find the applicant has demonstrated each of the following standards has been met. To deny a non-use variance, the ZBA must find that just one (1) of the following standards has failed to be met.

1.

Strict compliance with restrictions governing area, setback, frontage, height, bulk, density or other non-use matters, will unreasonably prevent the owner from using the property for a permitted purpose or will render ordinance conformity unnecessarily burdensome.

2.

The variance will do substantial justice to the applicant, as well as to other property owners.

3.

The variance requested is the minimum variance needed to provide substantial relief to the applicant and/or be consistent with justice to other property owners.

4.

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 Zone District, and cannot be solely economic in nature.

5.

The problem and resulting need for the variance has been created by strict compliance with the Zoning Ordinance, not by the applicant or the applicant's predecessors.

B.

Use Variances. The ZBA may grant a variance from the permitted use of land in a particular Zone District only upon finding that an unnecessary hardship exists. To demonstrate unnecessary hardship, the ZBA must find that the applicant has demonstrated each of the following standards has been met. To deny a use variance, the ZBA must find that just one (1) of the following standards has failed to be met.

1.

The condition, location, or situation is unique to that property and Zone District.

2.

The need for the variance was not created by an action or inaction by the applicant or the applicant's predecessor in title.

3.

The land, building, or structure cannot be reasonably used for uses currently permitted within the existing Zone District.

4.

That the variance would not alter the essential character of surrounding properties and the proposed Zone District is consistent with these surrounding properties.

5.

The variance, if granted, is consistent with the purpose and intent of the North Muskegon Master Plan.

C.

Conditions of Approval.

1.

The Zoning Board of Appeals may impose reasonable conditions in conjunction with approval of an appeal, variance, or any other decision which they are required to make.

2.

Conditions shall be imposed in a manner in accordance with the Michigan Zoning Enabling Act and related to the standards by which the decision is reached.

D.

Resubmission. No variance request which has been decided by the Zoning Board of Appeals shall be submitted for reconsideration within a one (1) year period from the date of the original application unless the Board finds that at least one (1) of the following conditions exist:

1.

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

2.

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

The decision of the Zoning Board of Appeals shall be final. However, a person having an interest affected by the decision of the Zoning Board of Appeals may appeal to the Circuit Court. Upon appeal, the Circuit Court shall review the record in accordance with the requirements of the City and Village Zoning Act. The court may affirm, reverse, or modify the decision of the Zoning Board of Appeals, or may remand the decision to the Zoning Board of Appeals for further hearings or action.