a.

Within the districts established by this division, or amendments that may later be adopted, there exist lots, structures and uses of land which were lawful before this division was enacted or amended, but which would be prohibited, regulated, restricted or otherwise unlawful under the provisions of this division or future amendments.

b.

It is the intent of this division to permit these non-conformities to continue until they are removed, but not encourage their continuation. Such non-conforming uses and structures are declared by this division to be incompatible with permitted uses in the districts involved. It is further the intent of this division that non-conformities shall not be enlarged upon, expanded or extended, nor be used as grounds for adding other structures or uses prohibited elsewhere in the same district.

c.

Non-conforming uses are considered to present a greater public burden than non-conforming lots and structures, therefore the intent of this chapter is to gradually eliminate non-conforming uses or decrease their non-conforming status, but to permit certain non-conforming uses to continue under certain conditions.

d.

Non-conforming lots and structures are typically those established prior to the current zoning standards. The city intends to allow continued use of these lots and structures in certain cases. Accordingly, this Division establishes regulations that govern the completion, restoration, reconstruction and expansion of non-conforming structures which do not increase the non-conforming situation.

e.

To avoid undue hardship, nothing in this division shall be deemed to require a change in the plans, construction or designated use of any structure on which actual construction was lawfully begun prior to the effective date of adoption or amendment of this division, and upon which actual building construction has been diligently carried on. Actual construction is hereby defined to include the placing of construction materials in permanent position and fastened in a permanent manner except that where demolition or removal of an existing structure has been substantially begun in preparation for rebuilding, such demolition or removal shall be deemed to be actual construction, provided that work shall be diligently carried on until completion of the structure involved.

(Ord. No. O-22-719, § 11, 3-7-22; Ord. No. O-23-728, § 11, 3-8-23)

a.

Use of nonconforming lots. Any lot of record existing at the effective date of the ordinance codified in this chapter that now fails to meet the requirements for area or width, or both, that are generally applicable in the district shall be considered a nonconforming lot. A principal building and customary accessory buildings for a permitted use may be erected on any nonconforming lot of record, provided all other standards of this title are met, including setbacks, minimum floor area, maximum height and access requirements.

b.

Variance to area and dimensional requirements. If the use of a nonconforming lot requires a variation in minimum floor area or dimensional (minimum setback and maximum height) standards, then the use shall be permitted only if a variance is granted by the zoning board of appeals.

(Ord. No. O-22-719, § 11, 3-7-22)

Where, at the effective date of this article or amendment thereto, lawful use of land exists that is made no longer permissible under the provisions of this article as enacted or amended, such use may be continued so long as it remains otherwise lawful, subject to the following limitations:

a.

No such non-conforming use shall be enlarged or increased, nor extended to occupy a greater area of land than was occupied at the effective date of adoption or amendment of this article.

b.

No such non-conforming use shall be moved in whole or in part to any other portion of the lot or parcel occupied by such use at the effective date of adoption or amendment of this article.

c.

A non-conforming use shall be determined to be abandoned if one or more of the following conditions exist, and which shall be deemed to constitute an intent on the part of the property owner to abandon the non-conforming use:

1.

Utilities, such as water, gas and electricity to the property, have been disconnected.

2.

The property, buildings, or grounds have fallen into disrepair and/or are declared a public nuisance (see chapter 18, article V: dangerous buildings and article VI: property maintenance code).

3.

Signs or other indications of the existence of the non-conforming use have been removed.

4.

Removal of equipment or fixtures which are necessary for the operation of the non-conforming use.

5.

Other actions, which in the opinion of the city manager or designated zoning official, constitute an intention on the part of the property owner or lessee to abandon the non-conforming use.

d.

Those alleged non-conforming uses which cannot be proved to have been legally existing prior to the effective date of this section shall be declared illegal and shall be discontinued following the effective date of this section.

(Ord. No. O-22-719, § 11, 3-7-22)

Where at the time of passage of this ordinance lawful uses of land exist which would not be permitted by the regulations imposed by this ordinance, and where such use involves no individual structure with a replacement cost exceeding $1,000.00, the use may be continued so long as it remains otherwise lawful, provided:

a.

No such nonconforming use shall be enlarged or increased, nor extended to occupy a greater area of land than was occupied at the effective date of adoption or amendment of this ordinance.

b.

No such nonconforming use shall be moved in whole or in part to any portion of the lot or parcel other than that occupied by such use at the effective date of adoption or amendment of the ordinance.

c.

If any such nonconforming use of land ceases for any reason for a period of more than one year, any subsequent use of such land shall conform to the regulations specified by this ordinance for the district in which such land is located.

d.

No additional structure not conforming to the requirements of this ordinance shall be erected in connection with such nonconforming use of land.

Where, at the effective date of this ordinance section or amendment thereto, a lawful structure exists that could not be built under the provisions of this section by reason of restrictions on area, lot coverage, height, yards, or other characteristics of the structure or its location on the lot, such structure may be continued so long as it remains otherwise lawful, subject to the following limitations:

a.

No such structure may be enlarged or altered in a way which increases its nonconformity within the provisions of this chapter.

b.

Any additions or modifications to such structure should bring the structure into greater conformity with the architectural and site standards applicable to the addition or modification.

c.

Any addition greater than 40 percent of the gross floor area of the principal building shall require the entire addition to fully meet the setback and build to standards.

d.

Any addition less than 40 percent of the gross floor area of the principal building is required to meet the architectural and site standards but may be granted flexibility by the planning commission with bringing the building into greater conformity with the setback and build to standards.

e.

For standards c and d above, where any existing side or rear part of the structure is non-conforming with the setback standards, the addition may be built to the same structure line. In no way shall the addition extend closer to the lot line than any existing, non-conforming part of the structure.

f.

Should such structure be destroyed by any means to an extent greater than 50 percent of the square footage of the floor area of the structure, it shall not be reconstructed except in conformity with the provisions of this chapter.

g.

Should such structure be moved for any reason for any distance whatever, it shall thereafter conform to the regulations for the zoning district in which it is located after it is moved.

h.

Should such structure be altered or modified so as to eliminate, remove or lessen any or all of its non-conforming characteristics, then such non-conforming characteristics shall not be later reestablished or increased.

i.

Existing carports, designed and integral to the residential structure, which may encroach into required setbacks, may be repaired or reconstructed with the same footprint, height, and design. Existing carports that do not meet current setback standards may be enlarged and/or enclosed on all four sides if the criteria established in section 605 below is met.

(Ord. No. O-22-719, § 11, 3-7-22; Ord. No. O-23-728, § 11, 3-8-23)

A non-conforming residential building may be expanded into a side or rear yard in a manner that does not comply with the setback standards with approval from the zoning administrator. The zoning administrator shall utilize the following standards:

a.

The expansion does not extend closer to the lot line than any existing, non-conforming part of the structure.

b.

The addition does not extend beyond the predominant existing building line along the same block.

c.

The addition retains compliance with all other setback, lot coverage, and height requirements.

d.

The addition will meet all minimum building code requirements.

e.

The resultant addition, in terms of dimensions and design, would be compatible with the established character of the neighborhood.

f.

The design of the addition must be compatible with the existing structure and not detract from the appearance of the site.

g.

The expansion of a residential building with a non-conforming yard, not meeting the requirements above, shall be prohibited unless a variance is granted by the zoning board of appeals (ZBA).

(Ord. No. O-22-719, § 11, 3-7-22; Ord. No. O-25-739 meeting, § 16, 5-19-25)

Where, at the effective date of this ordinance or amendment thereto, lawful use of a structure, or of a structure and land in combination, exists that is made no longer permissible under the provisions of this chapter as enacted or amended, such use may be continued as long as it remains otherwise lawful, subject to the following limitations:

a.

No existing structure devoted to a use not permitted by this chapter in the zoning district in which it is located shall be enlarged, extended, constructed, reconstructed, moved or structurally altered except in changing the use of the structure to a use permitted in the zoning district in which it is located.

b.

Any non-conforming use may be extended throughout any parts of a structure which were arranged or designed for such use, and which existed at the time of adoption or amendment of this ordinance, but no such use shall be extended to occupy any land outside such structure.

c.

If no structural alterations are made, any non-conforming use of a structure, or structure and premises, may be changed to another non-conforming use provided that the ZBA, either by general rule or by making findings in the specific case, shall find that the proposed use is equally appropriate or more appropriate in the district than the existing non-conforming use; in permitting such change, the ZBA may require appropriate conditions and safeguards in accord with the purpose and intent of this ordinance.

d.

Any structure, or structure and land in combination, in or on which a non-conforming use is superseded by a permitted use, shall thereafter conform to the regulations for the district in which such structure is located, and the non-conforming use may not thereafter be resumed.

e.

When a non-conforming use of a structure, or structure and premises in combination, is discontinued or ceases for six consecutive months or for 18 months during any three-year period, the structure, or structure and premises in combination, shall not thereafter be used, except in conformance with the regulations of the zoning district in which it is located; structures occupied by seasonal uses shall be excepted from this provision. These provisions may be waived, as determined by the city manager, upon substantiation that there is intent to continue the nonconformity.

f.

Where non-conforming use status applies to a structure and premises in combination, removal or destruction of the structure shall eliminate the non-conforming status of the land.

(Ord. No. O-22-719, § 11, 3-7-22)

a.

The intent of this section is to permit improvements and minor modifications to sites containing uses and building(s) which do not meet all of the various site improvement related regulations of this zoning ordinance, including provisions such as landscaping, signage, building materials and architecture, paving and other non-safety site related items. The purpose is to allow gradual compliance with these and other site related requirements, for the entire site, for sites that predate the ordinance requirements.

b.

Site improvements or expansions on nonconforming sites may be permitted by the planning commission during special land use, conditional land use, site plan review, without a complete upgrade of all site elements under the following conditions. The city may require a performance guarantee to ensure that all improvements permitted under this section will be made in accordance with the approved plan.

[1.]

There are reasonable site improvements proposed to the overall site in relation to the scale and construction cost of the proposed building improvements or expansion.

[2.]

Safety-related site issues, or those regulated by state and federal laws, are met.

[3.]

Driveways that do not conform with the access management requirements of this ordinance shall be eliminated to the extent practical, provided that the minimum reasonable access shall be maintained, as determined by the standards of article IV, division 2, access management and driveway standards, and as approved by the planning commission.

[4.]

Landscaping shall be required to conform to the requirements of article IV, division 3, landscape standards and tree replacement; exceptions will be permitted only where the existing site conditions prevent full compliance.

[5.]

All signs must conform with article IV, division 4, signs. Existing pole signs shall be replaced with monument signs. Some size allowances may be granted where site conditions warrant such consideration.

[6.]

All lighting, including pole and building mounted, must conform with article IV, division 5, lighting standards.

[7.]

The improvements or minor expansions shall not increase any existing nonconformity with the site requirements.

[8.]

A site plan shall be submitted and reviewed in accordance with article V, division 1, site plan review.

a.

On any structure devoted in whole or in part to any non-conforming use, work may be done in any period of 12 consecutive months on ordinary repairs, or on repair or replacement of nonbearing walls, fixtures, wiring or plumbing, to an extent not exceeding 50 percent of the estimated value of the structure, as determined by the most recent assessment of the SEV of the structure for purposes of taxation, provided that the cubic content of the structures as it existed at the time of enactment or amendment of this chapter shall not be increased.

b.

Nothing in this division shall be deemed to prevent the strengthening or restoring to a safe condition of any structure or part thereof declared to be unsafe by an official charged with protecting the public safety, upon order of such official.

A change of tenancy, ownership or management of any existing non-conforming uses of land, structures and premises shall not alter the non-conforming status of a non-conforming building, structure, use, or lot, provided there is no change in the nature or character of such non-conforming uses.

Except where herein otherwise stated, the provisions of this section shall be administered by the department of municipal services, division of building inspector. The division of building inspector shall have the power to:

a.

Make inspections of buildings and premises necessary to carry out the duties of administration and enforcement of this ordinance.

b.

Issue and serve appearance tickets on any person with respect to any violation of this ordinance where there is reasonable cause to believe that the person has committed such an offense.

c.

Issue a certificate of compliance when the requirements of this ordinance have been met.

d.

Perform such other functions necessary and proper to enforce and administer the provisions of this ordinance.

(Ord. No. O-22-719, § 12, 3-7-22; Ord. No. O-22-727, § 1, 12-5-22)

a.

Creation. The planning commission previously established shall continue in existence as the commission specified in section 4 of P.A. 207 of 1921, as amended, and shall perform the zoning and planning duties as provided in the statute and this ordinance.

b.

Composition. The city planning commission shall consist of nine members, six of whom shall be representative, insofar as possible, of different professions or occupations, and shall be appointed by the mayor subject to approval by the council. Three members shall be ex officio members, namely: the mayor, an administrative officer of the city selected by the mayor, and one councilperson selected by the council.

c.

Qualifications of members. No member of the city planning commission, other than an ex officio member, shall hold any other office or position with the city, except that one such appointed member may be a member of the zoning board of appeals. Every member shall have the qualifications of electors of the city.

d.

Terms. All members of the city planning commission shall serve for a term of three years, and until their successors are appointed and qualified, except that the terms of ex officio members shall correspond to their respective official tenures, and the term of the administrative officer appointed as an ex officio member shall terminate with the term of the mayor who appointed them.

e.

Removal. Inefficiency, neglect of duty or malfeasance in office shall be deemed cause for removal of any member from the city planning commission.

f.

Organization. The city planning commission shall elect its chairperson from among the appointed members and create and fill such other of its offices as it may determine. The term of chairperson shall be one year with eligibility for reelection.

g.

Meetings. The city planning commission shall schedule at least one regular meeting each month. However, the city planning commission may adopt rules setting forth procedures pursuant to which a regular scheduled meeting, with appropriate notices, may be rescheduled by the chairperson or other designated official due to lack of availability of a quorum, or canceled if it appears that no suitable date is available in that month when a quorum can be assembled. All meetings of the commission shall be conducted in compliance with Act 267 of 1976, as amended, The Open Meetings Act.

h.

Rules; records. The city planning commission shall adopt rules for transaction of business and shall keep a record of its resolutions and recommendations, which record shall be a public record.

i.

Quorum. Five members of the city planning commission shall constitute a quorum for the transaction of business.

j.

Required votes for action. The affirmative votes of five members of the city planning commission shall be required for the passage of any resolution or motion; provided, however, that the affirmative votes of six members of the city planning commission shall be required for the adoption, amendment, extension or addition to a master plan for the city.

k.

Form of recommendations. All recommendations to the city council by the city planning commission shall be by resolution duly adopted by it.

l.

Powers and duties. The planning commission shall have those powers and duties as provided in P.A. 207 of 1921 as amended, and this ordinance, including:

1.

Prepare and maintain a master plan for the physical development of the city;

2.

Review and make recommendations to the city council regarding adoption of zoning ordinances and subsequent amendments thereto;

3.

Review and approve special land uses in accordance with article V, division 4, special land uses of this ordinance;

4.

Review and approve site plans in accordance with article V, division 1, site plan review;

5.

Review and make recommendation to the city council regarding preliminary plat review of subdivisions proposed under P.A. 288 of 1967 as amended;

6.

Prepare and maintain a six year capital improvements program;

7.

Review and make recommendations to city council regarding proposed public works projects, including the removal, location, widening, narrowing, vacating, abandonment, change of use, or extension of streets, alleys, grounds, open spaces, building, public utilities and terminals;

8.

Conduct public hearings as required by law regarding matters before the commission for review, recommendations or approval; and

9.

The city planning commission shall perform any and all acts as required by state law.

m.

Failure to act. Failure of the city planning commission to act or make recommendations within a reasonable time or within the time limited by the city council on any matter referred to it by the city council or by this chapter, shall not constitute a bar to action thereon by the city council.

n.

Public hearings. The city planning commission may, in its discretion, hold public hearings on matters under consideration by it.

o.

Procedures.

1.

Applicants shall appear at hearing(s) regarding their case, either personally or by designated representatives who are authorized by the applicant in writing to act on their behalf for purposes of the application. The planning commission may conduct the required hearing and reach a decision on all applications without the applicant being present unless the applicant, for good cause, requests a continuance in writing prior to the hearing.

2.

The planning commission shall make no decision except in a specific case and after requiring a public hearing, if applicable.

3.

The secretary of the planning commission shall prepare and maintain minutes of all planning commission proceedings. The minutes shall be the final authority on proceedings and shall be the responsibility of the secretary of the planning commission. The commission shall approve all minutes prior to their designation and use as the official record of proceedings. Where a written record is required or requested, the approved minutes, along with any plans or other information submitted with the application shall constitute the written decision.

4.

The official records of the planning commission shall be maintained by the city clerk.

5.

The planning commission may adopt by-laws for the conduct of its meetings and hearings.

p.

Funds. Funds may be allocated to the city planning commission to defray its expenses in the discretion of the city council.

q.

Appeals from decisions of the planning commission. Appeals from decisions of the planning commission shall be taken in the manner provided by law.

(Ord. No. O-22-719, § 12, 3-7-22)

To ensure compliance with the provisions of this ordinance and any conditions imposed thereunder, the department of municipal services may require a financial guarantee of sufficient sum to assure the installation of those features or components of the approved activity or construction which are considered necessary to protect the health, safety and welfare of the public and of users or inhabitants of the proposed development and in accordance with Section 505 of the Michigan Zoning Enabling Act, Public Act 110 of 2006, as amended. Such features or components, hereafter referred to as "improvements," may include, but shall not be limited to, roadways, curbs, landscaping, fences, walls, screens, lighting, drainage facilities, sidewalks, driveways, parking areas, utilities, and similar items.

a.

Performance guarantees shall be processed in the following manner:

1.

Prior to the issuance of a certificate of occupancy, the applicant shall submit an itemized estimate of the cost of the uncompleted required improvements, which shall then be reviewed by the department of municipal services. The amount of the performance guarantee shall be no greater than 100 percent of the cost of installing the uncompleted improvements.

2.

The required performance guarantee may be in the form of a cash deposit, certified check, performance bond, or irrevocable bank letter of credit acceptable to the city. If the applicant posts a letter of credit, the credit shall require only that the city present the creditor with a sight draft and an affidavit signed by an authorized representative of the city attesting to the city's right to draw funds under the letter of credit. If the applicant posts a cash escrow, the escrow instructions shall provide that the escrow agent shall have a legal duty to deliver the funds to the city whenever an authorized representative of the city presents an affidavit to the agent attesting to the city's right to receive funds whether or not the applicant protests that right. If the applicant posts a performance bond and the improvements are not complete by the time a certificate of occupancy is requested in the case of a building project, or by the time a building permit is requested on a lot in a new subdivision or condominium, then the performance bond shall be replaced by a bank letter of credit or cash escrow prior to the issuance of said certificate of occupancy or building permit.

3.

Upon receipt of the required performance guarantee, the department of municipal services, division of building inspector may issue a temporary certificate of occupancy for the subject development or activity, provided it is in compliance with all other applicable provisions of this ordinance.

4.

When all of the required improvements have been completed, the applicant shall send written notice to the department of municipal services, division of building inspector of completion of such improvements. Thereupon, the department of municipal services, division of building inspector shall inspect all of the improvements and shall recommend to the planning commission either approval or rejection of the improvements with a statement of the reasons for any rejections.

5.

The planning commission shall then either approve or reject the improvements. The planning commission shall notify the applicant in writing of the action within 30 days after receipt of the notice from the obligor of the completion of the improvements.

6.

The department of municipal services, division of building inspector, upon completion of all required improvements, shall issue a certificate of compliance and forward it to the building official.

7.

Upon receipt of the certificate of compliance and request of the applicant, the department of municipal services, division of building inspector shall rebate the performance guarantee, if applicable, upon determination that the improvements for which the rebate has been requested have been satisfactorily completed.

8.

Performance guarantees shall not be returned until all debts or obligations to the city are resolved.

9.

A record of authorized performance guarantees shall be maintained by the department of municipal services, division of building inspector.

(Ord. No. O-22-719, § 12, 3-7-22; Ord. No. O-22-727, § 1, 12-5-22)

a. Unless otherwise required, notices for all public hearings shall be prepared in accordance with state law and local ordinance, as applicable.

A.

It shall be unlawful to commence or conduct any of the following until the administrative official has issued a zoning compliance permit and a building permit has been issued for such work or change:

1.

The excavation, construction, reconstruction, repair, moving, or alteration of:

(a)

Any building or structure for which a building permit is required by the building code, or

(b)

Any parking lot, sign (see definition), tower, bridge, or any structure having a cost or value of more than $500.00.

2.

A change in the use or occupancy of any building or land to a type of use or occupancy which is not expressly permitted by the district's regulations specified in this ordinance.

B.

The zoning compliance permit shall include a certificate by the department of municipal services that plans, specifications, and description of such use(s) and structure(s) do in all respects conform to the provisions of this ordinance.

C.

The application shall be made in writing to the department of municipal services on forms provided for that purpose. A record of all such applications shall be kept on file by the department of municipal services. When the department of municipal services receives an application for a zoning compliance permit which requires special land use approval, or other approval, the department of municipal services shall so inform the applicant.

(Ord. No. O-22-719, § 12, 3-7-22; Ord. No. O-22-727, § 1, 12-5-22)

Editor's note— Ord. No. O-22-719, § 12, adopted March 7, 2022, added a new § 624, as set out above and later amended, and in so doing renumbered the existing §§ 624, 625 as 625, 626.

Whenever by the provisions of this chapter the performance of any act is required, or the performance of any act is prohibited, or whatever regulation, dimension or limitation is imposed on the use of, or upon any land, or on the erection or alteration or the use or change of use of a structure or the uses within such structure, a failure to comply with such provisions of this chapter shall constitute a violation of this chapter. Every day on which a violation exists shall constitute a separate violation and a separate offense.

(Ord. No. O-22-719, § 12, 3-7-22)

Note— Formerly § 624, see editor's note for § 624.

Any person who violates this chapter shall be responsible for a civil infraction violation, subject to the fines and penalties set forth in this Code.

(Ord. No. O-22-719, § 12, 3-7-22)

Note— Formerly § 625, see editor's note for § 624.

a.

A zoning board of appeals (ZBA), hereinafter in this article sometimes referred to as the "board," is hereby established pursuant to the Michigan Zoning Enabling Act (Public Act 110 of 2006), as amended.

b.

The terms of the statute shall prevail, except as modified by the terms of this Code and the city Charter which are not in direct conflict thereto.

a.

The ZBA shall consist of seven members appointed by majority vote of the members of the city council. Each member shall be appointed to hold office for a three-year term. A vacancy on the zoning board of appeals shall be filled by city council for the remainder of the unexpired term in the same manner as the original appointment.

b.

One member of the zoning board of appeals shall be chosen and appointed from the city planning commission, and the term of any member of the zoning board of appeals appointed to fulfill such requirement shall terminate immediately upon the termination of his or her membership on the city planning commission.

c.

Four members shall constitute a quorum.

a.

Members of the board shall be residents of the city for a minimum of two years, city council will appoint members of the board.

b.

An employee or contractor of the city may not serve as a member of the ZBA.

a.

The ZBA is hereby authorized and empowered to establish its own rules of procedure and to elect its own officers subject to the provision that it shall, at its organizational meeting, elect a chairperson, a vice-chairperson and a secretary. In establishing rules of procedure and election of officers, a majority of those in attendance and constituting a quorum shall be required.

b.

Prior to the ZBA deciding in a specific case, the ZBA shall conduct a public hearing. Written notice of the hearing shall be in accordance with section 623, public hearings.

c.

A concurring vote of a majority of the members of the ZBA shall be necessary to reverse an order, requirement, decision, or determination of an administrative official or body, or to decide in favor of the applicant, a matter upon which the board is required to pass under this chapter or other chapters of this Code, except that a concurring vote of two-thirds of the members of the ZBA shall be necessary to grant a variance from uses of land permitted in this ordinance.

a.

Administrative appeals. To hear and decide appeals from any order, requirement, decision, or determination made by an administrative official charged with the enforcement of the zoning ordinance. An appeal may be taken by any person aggrieved by an officer, department, board, or bureau of the city. There shall be no appeal to the zoning board of appeals from a decision of the planning commission or city council approving or disapproving a special land use.

An appeal under this section shall be made within 20 days of the action by the officer or body which is the subject of the appeal. The zoning board of appeals shall provide a notice of appeal as specified in section 636. Any appeal shall be in writing on a standard form available from the city and accompanied with a payment of a fee in accordance with the schedule of fees adopted by the city council. The officer or body from whom the appeal is taken shall transmit to the zoning board of appeals all the papers constituting the record upon which the appealed action was taken.

b.

Interpretation. To hear and decide requests for interpretation of the zoning ordinance and official zoning map. The board shall observe the spirit and intent of the ordinance in all decisions regarding interpretation. Text interpretations shall be limited to the issue presented and shall not have the effect of amending the ordinance. Map interpretations shall be made based upon any relevant historical records. In deciding all interpretations, the board shall consider all reasonable and practical interpretations which have been consistently applied in the administration of the ordinance. The board may consult with staff and other appropriate persons or organizations prior to rendering its interpretation. A decision providing an interpretation may be accompanied by a recommendation for amendment of the zoning ordinance to address the interpretive issue.

c.

Variances. To authorize upon application in specific cases such variance from the terms of the zoning ordinance as will not be contrary to the public interest where, owing to special conditions, a literal enforcement of the provisions of this ordinance would result in a practical difficulty or unnecessary hardship. The application for a variance shall not be construed as an appeal from a decision made by or an alleged error of the administrative official. A variance from the terms of this ordinance shall not be granted by the zoning board of appeals unless and until:

1.

A written application for a variance is submitted demonstrating:

a)

That special conditions and circumstances exist which are peculiar to the land, structure, or building involved and which are not generally applicable to other lands, structures, or buildings in the same district;

b)

That literal interpretation of the provisions of this ordinance would deprive the applicant of rights commonly enjoyed by other properties in the same district under the terms of this ordinance;

c)

That the special conditions and circumstances do not result from the actions of the applicant;

d)

That the request relates only to the property that is under the control of the applicant, e.g. ownership, option to purchase, long term lease; and

e)

That the application states the owner's full name and address and is signed by the owner if the owner is not the applicant.

2.

The zoning board of appeals shall make findings that: the requirements of paragraph 1, above have been met by the applicant for a variance; the reasons set forth in the application justify the granting of the variance; the variance is the minimum variance that will make possible the reasonable use of the land, building, or structure; the granting of the variance will be in harmony with the general purpose and intent of this ordinance and will not be injurious to the neighborhood or otherwise detrimental to the public welfare.

3.

In granting any variance, the zoning board of appeals may impose reasonable conditions and safeguards which shall be in writing. Violations of such conditions and safeguards, when made a part of the terms under which a variance is granted, shall be deemed a violation of this ordinance. A variance from the terms of this ordinance shall not be granted by the zoning board of appeals unless the conditions in section 635 are met.

ZBA shall prescribe appropriate conditions and safeguards to carry out the requirements of this subsection and shall not grant any variance unless it shall have made a finding of fact based upon the evidence as presented to it in each specific case as specified below:

1.

Dimensional variance. The ZBA may grant a dimensional variance only upon a finding that practical difficulties exist. A dimensional variance is a variance from any dimensional standard or requirement of this ordinance, such as, but not limited to, a deviation from density, height, bulk, setback, or parking, landscaping and sign standards and requirements. A finding of practical difficulties shall require demonstration by the applicant of all the following:

a)

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

b)

A lesser variance than that requested will not give substantial relief to the applicant and/or be consistent with justice to other property owners.

c)

The need for the variance is due to unique circumstances or conditions peculiar to the property and not generally applicable in the area or to other properties in the same zoning district such as exceptional narrowness, shallowness, shape, topography or area.

d)

The problem and resulting need for the variance has not been self-created by the applicant and/or the applicant's predecessor may or may not be considered depending upon whether the practical difficulty would have existed regardless of the action.

e)

The variance will not alter the essential character of the area. In determining whether the effect the variance will have on the character of the area, the established type and pattern of land uses in the area and the natural characteristics of the site and surrounding area will be considered.

f)

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

2.

Use variance. The ZBA may grant a use variance only upon a finding that an unnecessary hardship exists. A use variance is a variance that permits a use that is otherwise not provided for in a zoning district. A finding of an unnecessary hardship shall require demonstration by the applicant of all the following:

a)

The property cannot be reasonably used for any purpose permitted in the zoning district without the variance.

b)

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. The applicant must prove that there are certain features or conditions of the land that are not generally applicable throughout the zone and that these features make it unreasonable to develop the property without some adjustment.

c)

The problem and resulting need for the variance has not been self-created by the applicant and/or the applicant's predecessors.

d)

The variance will not alter the essential character of the area. In determining whether the effect the variance will have on the character of the area, the established type and pattern of land uses in the area and the natural characteristics of the site and surrounding area will be considered.

An appeal stays all proceedings in furtherance of the action appealed from unless the officer or body from whom the appeal is taken certifies to the zoning board of appeals after the notice of appeal is filed, that by reason of fact stated in the certificate, a stay would, in the opinion of the officer or body, cause imminent peril to life or property, in which case the proceedings shall not be stayed other than by a restraining order which may be granted by the zoning board of appeals or by the circuit court.

A decision of the zoning board of appeals shall be considered final as of the meeting at which the decision was made, and shall be subject to appeal as provided by law.

a.

All applications to the zoning board of appeals shall be filed on forms provided by the city for that purpose.

b.

Applications shall be accompanied by the required fee as established by resolution of the city council.

c.

Applications shall include all plans, studies and data which are to be considered in the board's deliberations.

d.

The plan which shall accompany the application for any variance request shall be based upon a mortgage survey or land survey prepared by a registered land surveyor or professional engineer. The plan shall be to scale and shall include all property lines, dimensions, setbacks, existing, and proposed structures. The board has the authority to require submittal of a land survey where the board finds it necessary to ensure accuracy of the plan.

e.

The zoning board of appeals shall have no obligation to consider any application unless and until a complete application packet has been submitted.

f.

Application to the zoning board of appeals shall be made with the full knowledge and written consent of all the owners of the property in question (including written consent of any land contract seller).

g.

The zoning board of appeals shall fix a reasonable time for the hearing of the appeal and give notice thereof to the persons to whom real property within 300 feet of the premises in question is assessed, and to the occupants of one and two-family dwellings within 300 feet. The notice may be delivered personally or by mail, addressed to the respective owners and tenants at the address given in the last assessment roll. If the tenant's name is not known, the term "occupant" may be used. An affidavit of mailing or delivery of notices of the hearing shall be filed in the case file.

a.

The zoning board of appeals shall hold regular meetings as scheduled each year. The board shall also conduct such special meetings as shall be called by the chair.

b.

All meetings of the board shall be conducted in compliance with Act 267 of 1976 as amended, The Open Meetings Act.

c.

Applicants shall appear at the hearing(s), either personally or by designated representatives who are authorized by the applicant in writing to act on their behalf for purposes of the application. The board may conduct the required hearing and reach a decision on all applications without the applicant being present unless the applicant, for good cause, requests a continuance in writing prior to the hearing.

d.

The zoning board of appeals shall make no decision except in a specific case and after required hearing.

e.

A simple majority of the members of the zoning board of appeals appointed and serving shall constitute a quorum, without which the board shall not conduct business. The concurring vote of a simple majority of the members of the zoning board of appeals shall be required to pass a motion regarding any matter brought before the board except that the concurring vote of two-thirds of the members of the zoning board of appeals shall be necessary to grant a variance from uses of land permitted in the zoning ordinance.

f.

The administrative official shall prepare and maintain minutes of all zoning board of appeals proceedings. The minutes shall be the final authority on proceedings and shall be the responsibility of the secretary of the zoning board of appeals. The board shall approve all minutes prior to their designation and use as the official record of proceedings. Where a written record is required or requested, the approved minutes, along with any plans or other information submitted with the application shall constitute the written decision.

g.

The official records of the zoning board of appeals shall be maintained by the city clerk and/or the administrative official.

h.

The zoning board of appeals may adopt rules of procedure for the conduct of its meetings and hearings.

a.

The city council may, from time to time, amend, modify, supplement or revise the zoning district boundaries shown on the official zoning map (rezoning) or the provisions of this ordinance. An amendment to the zoning district boundaries contained on the official zoning map (rezoning) may be initiated by the city council, the planning commission, or by the owner or owners of property which is the subject of the proposed amendment. Amendments to the text of this ordinance may be initiated by the city council, the planning commission, or by petition of one or more residents or property owners of the city. All proposed amendments to the official zoning map or the provisions of this ordinance shall be referred to the planning commission for public hearing and recommendation to the city council, prior to consideration thereof by the city council.

b.

The planning commission may amend the future land use designations shown on the city master plan. An amendment may be initiated by the planning commission or by petition of one or more residents or property owners of the city.

a.

An amendment to the official zoning map, this ordinance or the master plan, except those initiated by the city council or planning commission, shall be initiated by submission of a completed application on a form supplied by the city, including an application fee, which shall be established from time to time by resolution of the city council.

b.

In the case of an amendment to the official zoning map (rezoning), the following information shall accompany the application:

1.

A legal description and street address of the subject property, together with a map identifying the subject property in relation to surrounding properties.

2.

The name, signature and address of the owner of the subject property, a statement of the applicant's interest in the subject property if not the owner in fee simple title, or proof of consent from the property owner.

3.

The existing and proposed zoning district designation of the subject property.

4.

A site analysis site plan illustrating existing conditions on the site and adjacent properties; such as woodlands, wetlands, soil conditions, steep sloped, drainage patterns, views, existing buildings, any sight distance limitations and relationship to other developed sites and access points in the vicinity.

5.

A conceptual plan demonstrating that the site could be developed with representative uses permitted in the requested zoning district meeting requirements for setbacks, wetland buffers access spacing, any requested service drives and other site design factors.

6.

A written description of how the requested rezoning meets section 653, criteria for amendment of the official zoning map (rezoning).

c.

In the case of an amendment to the master plan or this ordinance, other than an amendment to the official zoning map, a general description of the purpose and intent of the proposed amendment shall accompany the application form.

a.

Upon initiation of a rezoning, zoning ordinance text amendment or master plan amendment, a public hearing on the proposed amendment shall be scheduled before the planning commission in accordance with article VI, division 2, section 623, public hearings.

b.

Following the public hearing, the planning commission shall identify and evaluate all factors relevant to the petition and shall report its findings and recommendation to the city council, except in the case of a master plan amendment. In the case of an amendment to the official zoning map (rezoning), the planning commission shall consider the criteria contained in section 653, criteria for amendment of the official zoning map (rezoning), below, in making its finding and recommendation.

c.

Following receipt of the findings and recommendation of the planning commission, the city council shall consider the proposed amendment. In the case of an amendment to the text of this ordinance, the city council may modify or revise the proposed amendment as recommended by the planning commission, prior to enactment. In the case of an amendment to the official zoning map (rezoning), the city council shall approve or deny the amendment, which may be based on consideration of the criteria contained in section 653, criteria for amendment of the official zoning map (rezoning), below.

d.

No petition for rezoning, zoning ordinance text amendment or master plan amendment that has been denied by the city council or planning commission (master plan amendment) shall be resubmitted for a period of one year from the date of denial except on the grounds of new evidence or proof of changed conditions relating to all of the reasons noted for the denial found to be valid by the planning commission.

In considering any petition for an amendment to the official zoning map (rezoning), the planning commission shall, and the city council may, consider the following criteria in making its findings, recommendations, and decision:

a.

Consistency with the goals, policies and future land use map of the city master plan, including any subarea or corridor studies. If conditions have changed since the city master plan was adopted, the consistency with recent development trends in the area.

b.

Compatibility of the site's physical, geological, hydrological and other environmental features with the potential uses allowed in the proposed zoning district.

c.

The compatibility of all the potential uses allowed in the proposed zoning district with surrounding uses and zoning in terms of land suitability, impacts on the environment, density, nature of use, traffic impacts, aesthetics, infrastructure, and potential influence on property values.

d.

The capacity of city infrastructure and services sufficient to accommodate the uses permitted in the requested district without compromising the "health, safety and welfare" of the city.

e.

The apparent demand for the types of uses permitted in the requested zoning district in the city in relation to the amount of land in the city currently zoned to accommodate the demand.

f.

Where a rezoning is reasonable given the above criteria, a determination shall be made that the requested zoning district is more appropriate than another district or amending the list of permitted or special land uses within a district.

Any amendment for the purpose of conforming to a decree of a court of competent jurisdiction shall be adopted by the city council and published, without necessity of a public hearing or referral thereof to any other commission or agency.

a.

Conditional rezoning. An applicant for a rezoning may voluntarily offer a conditional rezoning along with an application for rezoning before or following the public hearing for a proposed rezoning. An election to submit a conditional rezoning shall be pursuant to the Michigan Zoning Enabling Act (Public Act 110 of 2006), as amended, and this section.

b.

A conditional rezoning shall be a written agreement executed by the applicant and the city, shall be in recordable form and shall be recorded with the county register of deeds after execution.

c.

A conditional rezoning may include limitations on the uses permitted on the property in question, specify lower or varying density or less intensity of development and use, or may impose more restrictive measures on the location, size, height, or other measure for buildings, structures, improvements, setbacks, landscaping, buffers, design, architecture and other features than would otherwise be provided in this ordinance.

d.

A conditional rezoning may not authorize uses or developments of greater intensity or density, or which are not permitted in a proposed zoning district; nor may a conditional rezoning permit variation from height, area, setback or similar dimensional requirements that are less restrictive than a proposed zoning district.

e.

A conditional rezoning shall include conditions that bear a reasonable and rational relationship and/or benefit to the property in question. A conditional rezoning may include conditions related to the use and development of the property that are necessary to:

1.

Serve the intended use of the property such as improvements, extension, widening, or realignment of streets, utilities, or other infrastructure serving the site.

2.

Minimize the impact of the development on surrounding properties and the city overall.

3.

Preserve natural features and open space beyond what is normally required.

f.

Content of agreement. In addition to any limitations on use or development of the property or preservation of property features or improvements as described above, a conditional rezoning shall also include the following:

1.

An acknowledgement that the conditional rezoning was proposed voluntarily by the applicant.

2.

An agreement and understanding that the property shall not be developed or used in any manner that is not consistent with a conditional rezoning.

3.

An agreement and understanding that the approval of a rezoning and a conditional rezoning shall be binding upon and inure to the benefit of the property owner and the city, and their respective heirs, successors, assigns, receivers or transferees.

4.

An agreement and understanding that, if a rezoning with a conditional rezoning becomes void for any reason including, but not limited to, reasons identified in this section, then no further development shall take place and no permits shall be issued unless and until a new zoning district classification for the property has been established.

5.

An agreement and understanding that no part of a conditional rezoning shall permit any activity, use, or condition that would otherwise violate any requirement or standard that is otherwise applicable in the new zoning district.

6.

A legal description of the land to which the agreement pertains.

7.

Any other provisions as are agreed upon by the parties.

g.

Process. A conditional rezoning shall be reviewed concurrently with a petition for rezoning following the process in section 652, rezoning, zoning ordinance, and master plan amendment procedure and the following:

1.

A conditional rezoning may be submitted prior to or following the planning commission public hearing. If the agreement is submitted following the planning commission public hearing, it must be reviewed by planning commission and a second public hearing shall be held prior to the planning commission making its recommendation on the rezoning and conditional rezoning to the city council. A conditional rezoning shall be reviewed by the city attorney to determine that it conforms with the requirements of this section, this ordinance, and the Michigan Zoning Enabling Act (Public Act 110 of 2006), as amended, and that the conditional rezoning is in a form acceptable for recording with the county register of deeds.

2.

Following a public hearing for a proposed zoning amendment, the planning commission shall make a recommendation to the city council based upon the criteria listed in section 653, criteria for amendment of the official zoning map (rezoning). In addition, following a public hearing to consider a conditional rezoning, the planning commission shall consider and address in written findings whether a proposed conditional rezoning:

a)

Is consistent with the intent of this article.

b)

Bears a reasonable and rational connection and/or benefit to the property being proposed for rezoning.

c)

Is necessary to ensure that the property develops in such a way that protects the surrounding neighborhood.

d)

Leads to a better development than would have been likely if the property had been rezoned without a conditional rezoning, or if the property were left to develop under the existing zoning classification.

e)

Is clearly in the public interest.

h.

If a conditional rezoning has been offered by the applicant and recommended for approval by the planning commission, the city council may approve a conditional rezoning as a condition to the rezoning if it meets all requirements of subsection 2 above. The conditional rezoning shall be incorporated by attachment or otherwise as an inseparable part of the ordinance adopted by the city council to accomplish the requested rezoning.

i.

If a rezoning and conditional rezoning are approved, the zoning classification of the rezoned property shall consist of the district to which the property has been rezoned, plus a reference to the conditional rezoning. The zoning map shall specify the new district, plus a small letter "a" to indicate that the property is subject to a conditional rezoning (i.e. "B-1, a"). The city clerk shall maintain a listing of all properties subject to zoning agreements and shall provide copies of the agreements upon request.

j.

An approved conditional rezoning shall be recorded with the county register of deeds.

k.

Any uses proposed as part of a conditional rezoning that would otherwise require approval of a special land use or site plan approval shall be subject to the applicable review and approval requirements of article V, division 4, special land uses and article V, division 1, site plan review.

l.

All other requirements of this ordinance or any other city ordinances shall apply to the property to which a conditional rezoning applies.

m.

Expiration.

1.

Unless extended by the city council for good cause, a rezoning and conditional rezoning shall expire two years after adoption of the rezoning and conditional rezoning, unless substantial construction on the approved development of the property pursuant to building and other required permits issued by the city commences within the two-year period and proceeds diligently to completion.

2.

In the event that substantial construction on the approved development has not commenced within the aforementioned two years, or if construction and development does not proceed diligently to completion thereafter, a conditional rezoning and rezoning shall be void and of no effect.

3.

Should a conditional rezoning become void, all development on the subject property shall cease, and no further development shall be permitted. Until action satisfactory to the city is taken to bring the property into compliance with this ordinance, the city may withhold or, following notice to the applicant and being given an opportunity to be heard, revoke permits and certificates, in addition to or in lieu of any other lawful action to achieve compliance.

4.

Notwithstanding the above, if the property owner applies in writing for an extension of a rezoning and a conditional rezoning at least 30 days prior to the expiration date, the city council may, in its sole discretion, grant an extension of up to one year. Future extensions may be granted, although the number of previous extensions granted to a particular rezoning and conditional rezoning shall be considered by the city council.

n.

Reversion of zoning. If a rezoning and conditional rezoning become void as outlined above, then the zoning classification of the property shall revert to its previous zoning classification. The reversion process shall be initiated by the city council by requesting that the planning commission proceed with consideration of rezoning of the land to its former zoning classification. The procedure for considering and making this reversionary rezoning shall be the same as applies to all other rezoning requests, including the notice and hearing as required by the Michigan Zoning Enabling Act (Public Act 110 of 2006), and this ordinance. No building or other permit shall be issued or valid during the process described in this subsection.

o.

Continuation. Provided that all development and/or use of the property in question is in compliance with a conditional rezoning, a use or development authorized there under may continue indefinitely, provided that all terms of a conditional rezoning continue to be adhered to.

p.

Amendment.

1.

During an initial two-year period, or during any extension granted by the city as permitted above, the city shall not add to or alter a conditional rezoning, even with the landowner's consent.

2.

A conditional rezoning may be amended after the expiration of an initial two-year period and any extensions, in the same manner as was prescribed for the original rezoning and conditional rezoning.

q.

Violation of agreement. Failure to comply with a conditional rezoning at any time after approval will constitute a breach of the agreement and a violation of this ordinance and further use of the property may be subject to legal remedies available to the city. Any violation of a conditional rezoning that is not cured within 30 days after written notice of the violation is given shall permit the city council, in its sole discretion, to declare a conditional rezoning void and of no effect.

r.

Subsequent rezoning of land. Nothing in a conditional rezoning, nor any statement or other provision, shall prohibit the city from later rezoning all or any portion of the property that is the subject of a conditional rezoning to another zoning classification. Any rezoning shall be conducted in compliance with this ordinance and the Michigan Zoning Enabling Act (Public Act 110 of 2006).

s.

Failure to offer conditions. The city shall not require an owner to offer conditions as a requirement for rezoning. The lack of an offer of conditions shall not affect the owner's rights under this ordinance.