The Zoning Board of Appeals (hereinafter referred to as "ZBA") is created pursuant to the Michigan Zoning Enabling Act, Michigan Public Act 110 of 2006 as amended. In the City of Orchard Lake Village the City Council acts as the ZBA, pursuant to Section 601(2) of Public Act 110. The City Council is authorized to appoint a ZBA consisting of not less than five (5) members, each to be appointed for a term of three (3) years, in accordance with Section 601 of Public Act 110. The qualification of members and operation of the ZBA shall be in accordance with Public Act 110.

The Mayor shall serve as the Chairperson and the Mayor Pro Tem shall serve as the Vice Chairperson of the ZBA. The City Attorney or his/her representative shall act as legal counsel for the ZBA and shall be present at meetings of the ZBA.

A.

Meetings of the ZBA shall be held in accordance with an adopted schedule or at the call of the chairperson, or by the Vice Chairperson in the absence of the Chairperson, or upon written request of two (2) members of the board.

B.

Hearing and meetings of the ZBA shall be public, at meetings conducted in compliance with the Open Meetings Act, Public Act 267 of 1976, as amended. Public notice of the time, date and place of the meeting shall be given in the manner required by Act 267.

C.

The ZBA shall state the grounds of each determination, and shall maintain a record of its proceedings, including the vote of members on each question, which record shall be filed in the office of the City Clerk. Such records shall be available to the public in accordance with the Freedom of Information Act, Public Act 442 of 1976, as amended.

D.

The Zoning Board of Appeals shall have the power to subpoena and require the production of books, papers, files and other evidence pertinent to the matters before it.

E.

In the event alternate members to the ZBA are appointed by the City Council, the alternate members may be called on a rotating basis by the Chairperson to sit as regular members of the ZBA in the absence of regular members. An alternate member may also be called to serve in the place of a regular member for the purpose of reaching a decision in a case in which the regular member had 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 members shall have the same voting rights as a regular member of the ZBA.

A.

General Authority. The Zoning Board of Appeals shall have the authority to act on those matters where this Ordinance provides for appeal of an administrative order or interpretation, and shall have authority to authorize a variance as defined in this Ordinance and laws of the State of Michigan. Such authority shall be subject to the rules and standards in this Section. The Zoning Board of Appeals 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 Ordinance.

B.

Administrative Review. Except for special land use approval, the Zoning Board of Appeals 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 provision of this Ordinance. Such appeal shall be requested by the applicant within sixty (60) days of the date of the order, refusal, requirement, or determination being appealed. In hearing and deciding appeals under this sub-section, the Zoning Board of Appeals review shall be based upon the record of the administrative decision being appealed. The Zoning Board of Appeals shall not consider new information which had not been presented to the administrative official, board or commission from whom the appeal is taken. If new information is presented, the official, board or commission from whom the appeal is taken should review the revised application and make a decision, which may be appealed under this section.

C.

Interpretation. The Zoning Board of Appeals shall have authority to hear and decide requests for interpretation of the Zoning Ordinance, including the zoning map. The Zoning Board of Appeals shall make such decisions so that the spirit and intent of this Ordinance shall be observed. Text interpretation 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 interpretation shall be made based upon rules in the Ordinance, and any relevant historical information. In carrying out its authority to interpret the Ordinance, the Zoning Board of Appeals 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 Zoning Board of Appeals may confer with the City staff and 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 to the Ordinance.

D.

Variances. The Zoning Board of Appeals shall have authority in specific cases to authorize one or more dimensional or "non-use" variances from the strict letter and terms of this Ordinance by varying or modifying any of its 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. A use variance authorizes the establishment of a use of land that is otherwise prohibited in a zoning district. The Zoning Board of Appeals is authorized to grant use variances by this Ordinance. Such authority shall be exercised in accordance with the following standards:

1.

The Zoning Board of Appeals 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 or other non-use matters, will unreasonably prevent the owner from using the property for a permit purpose or will render ordinance 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 or the applicant's predecessors.

2.

The Zoning Board of Appeals may grant a requested "use" variance only upon finding that an unnecessary hardship exists. A "use" variance is a variance that permits a use that is otherwise prohibited in a zoning district. A finding of unnecessary hardship shall require demonstration by the applicant of all of the following:

a.

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

c.

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.

d.

The problem and resulting need for the variance has not been self-created by the applicant.

e.

The variance will not impair the intent and purpose of the Zoning Ordinance of the Master Plan.

3.

In all variance proceedings, it shall be the responsibility of the applicant to provide information, plans, testimony and/or evidence from which the Zoning Board of Appeals may make the required findings.

E.

Conditions. The Zoning Board of Appeals may impose reasonable conditions on an appeal, interpretation or variance request. The conditions may include requirements necessary to ensure that public services and facilities affected by a proposed land use or activity will be capable of accommodating increased service and facility loads caused by the land use activity, to protect the natural environment and conserve natural resources and energy, to insure 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:

1.

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 for use or activity under consideration, residents, landowners immediately adjacent to the proposed land use or activity, and the community as a whole.

2.

Be related to the valid exercise of the police power, and purposes which are affected by the proposed use or activity.

3.

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 insure compliance with those standards. Conditions imposed with respect to the approval of a variance shall be recorded as part of the Zoning Board of Appeals minutes, and shall remain unchanged except upon the mutual consent of the Zoning Board of Appeals and the landowner following notice and hearing as required in a new case.

F.

Exceptions for Public Utilities. The Zoning Board of Appeals may permit the erection of, addition to, and/or use of a building for public utility purposes in any zoning district. In permitting such building, structure, or use, the Zoning Board of Appeals may permit greater height or larger area than otherwise permitted in the district, provided that the Zoning Board of Appeals finds that such use, height, area, building, or structure are reasonably necessary for the public convenience and service, and provided further, that such building, structure, or use is designed and landscaped to be compatible with the surrounding land use and neighborhood.

G.

Temporary Buildings and Uses. The Zoning Board of Appeals may permit temporary buildings and uses for periods not to exceed six (6) months, provided that such buildings and uses in no way have a detrimental effect upon the uses of land permitted in the zoning district, and that such temporary buildings and uses contribute materially to the general welfare of the City, particularly in times of emergency, under conditions peculiar to the time and place involved. Such period may be extended not more than an additional period of six (6) months.

H.

Performance Guarantee. The Zoning Board of Appeals may require that a performance guarantee be deposited with the City to ensure faithful completion of the improvements.

A.

Application. An application to the ZBA, in cases in which it has original jurisdiction under the provisions of this Ordinance, may be made by a person or property owner, including a tenant, or by a governmental officer, board, department or bureau. All applications to the Zoning Board of Appeals shall be filed with the City Clerk, on forms provided by the City, and shall be accompanied by the applicable fee. The ZBA shall not consider any application until said sum has been paid by the applicant. Applications shall include items required by sub-section B, C and D below. Applications shall provide all plans, studies, and other information to be considered by the ZBA. The Zoning Board of Appeals shall have no obligation to consider and/or grant a request for relief unless and until a conforming and complete application has been submitted, including relevant plans, studies, and other information.

B.

Site Plan. A site plan shall be required with all variances requested. Where an application provides a variance sought in conjunction with a regular site plan review, a site plan prepared according to Section 4.33 shall satisfy the requirements of this Section. The Zoning Board of Appeals has the authority to require a land survey prepared by a professional surveyor or registered engineer when the Zoning Board of Appeals determines it to be necessary to insure accuracy of the plan.

C.

Applications involving an Appeal of Administrative Order. In cases involving an appeal from an action of an administrative official or entity (as specified in Section 16.04, Sub-Section B), the administrative official, shall transmit to the Zoning Board of Appeals copies of all papers constituting the record upon which the action was taken, together with a letter specifying an explanation of the action taken.

D.

Consent of Property Required. Applications for a variance shall be made with the 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.

E.

Hearing and Notice. The City, upon receipt of an application or an appeal for an area or dimensional variance, or a use variance, shall fix a reasonable time and place for a hearing on the request and give notice according to Section 15.11 of the Ordinance. Upon receipt of a written request seeking an interpretation of the Zoning Ordinance or an appeal of an administrative decision, a notice stating the time, date, and place of the public hearing shall be published in a newspaper of general circulation with the City and shall be sent by first-class mail or personal delivery making the request not less than fifteen (15) days before the public hearing. In addition, if the request for an interpretation or appeal of an administrative decision involves a specified parcel, written notice stating the nature of the request and the time, date, and place of the public hearing on the request shall be sent by first-class mail or personal delivery to all persons to whom real property in question and to the occupants of all structures within one thousand (1,000') feet of the boundary of the property in question. If an occupant's name is not known, the term "occupant" may be used. The Zoning Board of Appeals shall decide the application or appeal within sixty (60) days of the hearing date and shall promptly mail a copy of its decision to the applicant or appellant.

F.

Decision by the Zoning Board of Appeals. The concurring vote of four (4) members of the Zoning Board of Appeals shall be necessary to reverse any order, requirement, decision, or determination of an administrative official, board or commission made in the administration of this Ordinance or to decide in favor of an applicant on any matter upon which the Zoning Board of Appeals is required to pass under this Ordinance. A concurring vote of ⅔ of the members of the board shall be necessary to grant a "use" variance from the terms of this Ordinance.

A.

Zoning Board of Appeals Power. The Zoning Board of Appeals may reserve, affirm, vary or modify any order, requirement, decision, or determination presented in a case within the Zoning Board of Appeals' jurisdiction, and to that end, shall have all the powers of the officer, board or commission from whom the appeal is taken, subject to the Zoning Board of Appeals' scope of review, as specified in this Ordinance or by the law. The Zoning Board of Appeals may remand a case for further proceedings and decisions.

B.

Decision Final. A decision by the Zoning Board of Appeals shall be considered final as of the meeting at which the decision has been made, and the date of such meeting shall be determined 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 Zoning Board of Appeals meeting, and decision, as proposed under supervision of the City Clerk, shall constitute the written decision, even if the minutes are awaiting final Zoning Board of Appeals approval.

C.

Period of Validity.

1.

Initial Period of Validity. The relief granted by the Zoning Board of Appeals shall be valid for a period not longer than six (6) months, unless otherwise specified by the Zoning Board of Appeals, 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.

2.

Extension of Approval for Residential Uses and Sites. For residential uses and sites only, if improvements have not commenced within six (6) months of initial validity, the applicant may apply in writing to the Building Official for an extension of the ZBA's approval. The Building Official may approve one (1) extension of up to ninety (90) days provided that he/she finds that the conditions on and surrounding the site are substantially the same as when the ZBA initially took action on the case. If improvements have not commenced within the time period specified in an extension granted by the Building Official, or if the Building Official declines to extend the period of validity, and applicant may request re-approval by submitting a written request to the ZBA.

3.

Extension of Approval for Non-Residential Uses and Sites. For non-residential uses and sites, if improvements have not commenced within six (6) months of initial validity, an applicant may request re-approval by submitting a written request to the ZBA.

4.

Requests to the ZBA for re-approval for both residential and non-residential uses shall be reviewed in accordance with the same standards and procedures that apply to the new application.

D.

Record of Proceedings. The City Clerk shall prepare and keep minutes of the Zoning Board of Appeals proceedings, showing the findings, decisions, conditions, if any, and votes of each member in each case, including a members' absence or failure to vote. The minutes shall be within the ultimate authority, and shall be the responsibility of the Zoning Board of Appeals and shall be subject to approval of the Zoning Board of Appeals.

E.

Appeal of a Zoning Board of Appeals Decision. All decisions of the Zoning Board of Appeals shall be final. However, any party aggrieved by such a decision of the Zoning Board of Appeals may appeal to the Circuit Court within thirty (30) days of the final decision.

F.

New Application for Variance. If the Zoning Board of Appeals denies a request for a variance, the decision of the Zoning Board of Appeals shall not be subject to re- consideration for period of one (1) year, whereupon the applicant may submit a new application for the variance. However, the Zoning Board of Appeals may waive the one year period if conditions upon which their original decision was made, changed, or if information relating to their decision are found to be incorrect or inaccurate.

All applications shall be accompanied by a filing fee which shall be established by resolution of the City Council. This filing fee may include a deposit toward the costs of any consultants retained by the City for reviewing the application, such as consulting, planning services, consulting engineering services, legal services, court reporter services, or similar services. The approval process should not begin until the filing fee and deposit are paid. Upon notification of deficient payment of fees, administrative officials charged with enforcement of the Ordinance shall suspend further review of the application. Any deposit toward the cost of any consultant shall be credited against the expense to the City of such consultants, which shall be fully charged to the applicant. Any portion of the deposit not needed to pay such expense shall be refunded without interest to the applicant within thirty (30) days of final action on the application. A schedule of the current filing fees and deposit requirements shall be made available in the office of the City Clerk. The assessment and payment of application fee does not affect the requirements for a performance guarantee. There shall be no fee in the case of application filed in the public interest by a municipal department or City Official.