Royal Oak City Zoning Code
ARTICLE XI
Zoning Board of Appeals
§ 770-120 Authority.
There is hereby established a Zoning Board of Appeals, the membership, powers, duties of which are prescribed in the Zoning Enabling Act, Act 110 of the Public Acts of the State of Michigan of 2006,[1] as amended. The Zoning Board of Appeals, in addition to the general powers and duties conferred upon it by said Act, in specific cases and subject to appropriate conditions and safeguards, shall interpret and determine the application of the regulations established under this chapter in harmony with their purpose and intent as hereinafter set forth.
[1]
Editor's Note: See MCLA § 125.3101 et seq.
§ 770-121 Membership.
[Amended 6-15-2009 by Ord. No. 2009-05; 3-17-2014 by Ord. No. 2014-02]
The City Commission shall appoint a Zoning Board of Appeals, hereinafter referred to as the "Board," consisting of nine regular members and no alternate members, in accordance with Section 601 of the Zoning Enabling Act, Act 110 of the Public Acts of 2006, as amended (MCLA § 125.3601).
§ 770-122 Officers of Board; legal counsel.
The Chair and Vice Chair of the Board shall be elected annually by the members of the Board. The Zoning Administrator or his or her designee shall be the Secretary of the Board, and all records of the Board's action shall be taken and recorded under his or her direction. The City Attorney shall act as legal counsel for the Board and shall be present at all meetings upon request by the Board.
§ 770-123 Meetings.
A.
All decisions of the Board shall be made at a meeting open to the public. All deliberations of the Board constituting a quorum of its members shall take place at a meeting open to the public except as provided in compliance with the Open Meetings Act, Act 267 of 1976,[1] as amended.
[1]
Editor's Note: See MCLA § 15.261 et seq.
B.
A majority of the members of the Board shall constitute a quorum for purposes of transacting the business of the Board and the Open Meetings Act, Act 267 of 1976, as amended. Each member of the Board shall have one vote.
C.
Regular meetings of the Board shall be called as needed in response to receipt of a notice of appeal. The meeting can be called by the Zoning Administrator, the Chair of the Board, or, in his or her absence, the Vice Chair. Public notice of the date, time, and place of a public meeting of the Board shall be given in the manner required by the Open Meetings Act, Act 267 of 1976, as amended.
D.
The business of the Board shall be conducted in accordance with its adopted bylaws.
E.
The Chair or, in his or her absence, Vice Chair may administer oaths and compel the attendance of witnesses, or subpoena and require the production of documents, files and other evidence pertinent to matters before the Board.
§ 770-124 Powers and duties; variances.
B.
Voting.
(1)
The concurring vote of a majority of the members of the Board shall be necessary to reverse or modify an order, requirements, 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 by law or under this chapter, or to effect a variation in this chapter except that a concurring vote of 2/3 of the members of the Board shall be necessary to grant a variance from uses of land permitted in this chapter. The decision of the Board shall not become final until the expiration of five days from the date of entry of such order, unless the Board shall find the immediate effect of such order is necessary for the preservation of property or personal rights and shall so certify on the record.
(2)
The decision of the Board on any matter heard by it shall be final as it involves discretion or the findings of facts.
(3)
The Zoning Board of Appeals shall determine that the variance relief granted, either as proposed, or as otherwise determined appropriate by the Zoning Board of Appeals based upon the record, is the minimum relief necessary in order to achieve substantial justice, that is, the variance would give substantial relief to the owner of the property involved and be consistent with justice to other property owners in the surrounding area.
(4)
A member shall be disqualified from a vote in which there is a conflict of interest. Failure of a member to disclose a conflict of interest and be disqualified from a vote shall constitute misconduct in office.
C.
Administrative review. The Board shall 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 other duly authorized enforcing agent, in enforcing any provision of this chapter.
D.
Interpretation.
(1)
The Board shall hear and decide requests for interpretation of this chapter or the Zoning Map, taking into consideration the intent and purpose of this chapter and the Master Plan.
(2)
A record shall be kept by the Board of all decisions for interpretation of this chapter or Zoning Map and land uses which are approved under the terms of this section. The Board shall request the Plan Commission to review any amendment to this chapter it deems necessary.
(3)
The Board shall not have the power to alter or change the zone classification of any property, or to amend the language of this chapter, which power is reserved to the City Commission in the manner provided by the Zoning Enabling Act, Act 110 of 2006, as amended.[2]
[2]
Editor's Note: See MCLA § 125.3101 et seq.
E.
Variances. Upon an appeal, the Board is authorized to grant a variance from the strict provisions of this chapter, whereby unique, extraordinary or exceptional conditions of such property, the strict application of the regulations enacted would result in peculiar or exceptional practical difficulties to, or exceptional undue hardship upon the owner of such property, provided such relief may be granted without substantial detriment to the public good and without substantially impairing the intent and purpose of this chapter. In granting a variance, the Board may attach thereto such conditions regarding the location, character and other features of the proposed uses as it may deem reasonable in furtherance of the purpose of this chapter. Further, in granting a variance, the Board shall state the grounds upon which it justifies the granting of a variance as outlined below. When granting any variance, the Board must ensure that the spirit of this chapter is observed, public safety secured, and natural resources protected. The Board shall determine that the variance approval, either as proposed by the applicant or as otherwise determined by the Board based upon the record, is the minimum relief necessary in order to achieve substantial justice. The Board shall not have the power to consider an appeal of any decision concerning a special land use or a planned unit development, unless specifically authorized to do so by the Plan Commission.
(1)
Use variances. The applicant must present evidence to show that if this chapter is applied strictly, unnecessary hardship to the applicant will result, and that all five of the following requirements are met:
(a)
That the property could not be reasonably used for the purposes permitted in that zone;
(b)
That the appeal results from unique circumstances peculiar to the property and not from general neighborhood conditions;
(c)
That the use requested by the variance would not alter the essential character of the area;
(d)
That the alleged hardship has not been created by any person presently having an interest in the property; and
(e)
That the use will preserve a substantial property right possessed by other property owners in the same zone.
(2)
Nonuse variances. The applicant must present evidence to show that if this chapter is applied strictly, practical difficulties will result to the applicant and that all four of the following requirements are met:
(a)
That this chapter's restrictions unreasonably prevent the owner from using the property for a permitted purpose;
(b)
That the variance would do substantial justice to the applicant as well as to other property owners in the district, and a lesser relaxation than that requested would not give substantial relief to the owner of the property or be more consistent with justice to other property owners;
(c)
That the plight of the landowner is due to the unique circumstances of the property;
(d)
That the alleged hardship has not been created by any person presently having an interest in the property;
(3)
Additional criteria for land divisions. In addition to the criteria outlined in Subsection E(2), Nonuse variances, the Board shall consider the following for any appeals and/or variance request for a land division in their decision:
(a)
The width, size and general character of the lots in the neighborhood and area;
(b)
Whether the width and shape of the lot leaves adequate buildable area to allow the construction of a dwelling which is in harmony with the character of the neighborhood and/or area; and
(c)
The extent to which other developed lots in the neighborhood and/or area have maintained required yards, lot area and width.
§ 770-125 Procedure for appeal.
A.
An applicant requesting any action by the Board shall commence such request by filing an application on the form supplied by the City, accompanied by an appeal fee as determined by the City Commission, and all plans, studies and any other information and data as applicable, all of which shall be made a part of the record. The application shall specify the grounds upon which the appeal is based, the section number(s) of this chapter containing the standards from which a variance is sought and the nature and extent of such variance, and contain a notarized signature of the property owner or owner's agent.
B.
Every appeal from a determination of the Zoning Administrator or other duly authorized enforcing agent shall be made by the applicant within 30 days of the date of the order issuance or refusal to issue a permit, requirement, or refusal. Such an appeal shall stay all proceedings in furtherance of the action appealed from unless the Zoning Administrator or other duly authorized enforcing agent shall certify that, by reason of the facts stated in the appeal, a stay would cause imminent peril to life or property, in which case the proceedings shall not be stayed other than by a restraining order granted by the circuit court.
C.
The Zoning Administrator, pursuant to § 770-10, Duties, of this chapter, shall fix a time for a public hearing on each appeal. Notice of the public hearing shall be provided pursuant to § 770-13, Public hearings, of this chapter and in accordance with Section 103 of the Zoning Enabling Act, Act 110 of 2006, as amended.[1]
[1]
Editor's Note: See MCLA § 125.3103.
D.
Any person may appear in person at the public hearing, or be represented by an agent or attorney, and present any evidence in support of his or her appeal. The Board shall have the power to require the attendance of witnesses, administer oaths, compel testimony, and otherwise cause the production of books, papers, files, and other evidence pertaining to matters properly coming before the Board.
E.
The Board shall not decide an appeal until after a public hearing.
F.
The Board may reverse, affirm, vary, or modify any order, requirement, or determination, as to which it has the power to consider, and shall have all the powers of the officer or body from whom the appeal was taken and may issue or direct the issuance of a permit.
G.
The Board may impose conditions with any decision. Such conditions imposed shall meet all of the following requirements:
(1)
Be designed to protect natural resources, public health, safety, and welfare and the social and economic well-being of those who will use the land or activity under consideration, residents and 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 this chapter, be related to the standards established in this chapter for the land use or activity under consideration, and be necessary to insure compliance with those standards. Violations of any of these conditions shall be deemed a violation of this chapter, enforceable as such, and/or may be grounds for revocation or reversal of such decision.
H.
All decisions of the Board shall be in writing and, so far as it is practicable, in the form of a general statement or resolution reciting the conditions, facts, and findings of the Board. The applicant shall be advised of the decision after the public hearing unless the Board moves for a continuation of such hearing.
I.
Any decision of the Board favorable to the applicant shall remain valid only as long as the information or data relating thereto are found to be correct, and the conditions upon which the decision was based are maintained.
J.
The Board may reconsider an earlier decision if, in the opinion of the Board, circumstances justify taking such action.
K.
No order of the Board permitting the erection or alteration of a building shall be valid for a period of longer than one year, unless a building permit for such erection or alteration is obtained within such period, and such erection or alteration is started and proceeds to completion in accordance with the terms of such permit. No order of the Board permitting a use of a building or premises shall be valid for a period longer than one year, unless such use is established within such period; provided, however, that such order shall continue in force and effect if a building permit for said erection or alteration is obtained within such period, and such erection or alteration is started and proceeds to completion in accordance with such permit.
L.
Any person or persons or any board or department of the City having an interest affected by a decision of the Board shall have the right to appeal to the circuit court on questions of law and fact. Such appeal must be taken within 21 days after the date of the Board's decision. A request for reconsideration under Subsection J above shall not toll the time for taking such appeal. In the event a request for reconsideration is granted, the time period for appeal shall commence from the approval of the minutes of the meeting where the appeal was reconsidered. In any event, only one request for reconsideration on each appeal shall be allowed.