Saugatuck City Zoning Code

ADMINISTRATION AND

ENFORCEMENT

§ 154.170 ENFORCEMENT BY ZONING ADMINISTRATOR.

This chapter shall be administered by the Zoning Administrator designated and appointed by the City Council.

(Ord. passed 6-24-1996; Am. Ord. 02-02, passed 2-11-2002)

§ 154.171 DUTIES OF THE ZONING ADMINISTRATOR.

It shall be the responsibility of the Zoning Administrator to enforce the provisions of this chapter and in so doing shall perform the following duties:

(A) Enforcement. The Zoning Administrator shall administer and enforce this chapter and shall have the right to enter and inspect periodically all construction sites during the process of the work. He or she shall inspect the construction at least once upon completion of the work to insure compliance with this chapter. A violation of this chapter shall constitute a nuisance per se.

(B) Binding interpretations. The Zoning Administrator shall have the authority to render binding interpretations of provisions of this chapter and shall administer the same. An aggrieved party may appeal any interpretation/determination made by the Zoning Administrator in writing to the Zoning Board of Appeals within 21 days of any such determination/interpretation.

(C) Issue permits. All applications for zoning permits, special land use permits (including PUD) occupancy permits and variances shall be submitted to the Zoning Administrator, who may issue such permits and certificates of occupancy when all applicable provisions of this chapter have been met and approval has been granted by the proper body or official.

(D) Revocation of permit. The Zoning Administrator shall have the authority to revoke any permit issued pursuant to this chapter if the requirements of the permit and the provisions of this chapter are being violated, and in such case shall have the power to issue a stop-work order. An aggrieved party may appeal within 21 days of any such determination/interpretation.

(E) Assistance of Building Inspector or engineer. The Zoning Administrator may seek the advice and assistance of the city Building Inspector or such licensed engineer as he or she may designate if he or she feels it necessary to assure compliance with this chapter, and the Building Inspector or licensed engineer shall render such assistance when requested to do so.

(F) Stop work orders. Upon notice from the Zoning Administrator that any use being conducted or that any work or construction is being done contrary to the provisions of this chapter, such use or work shall cease immediately. The stop work order shall be in writing and shall be given to the owner of the property involved (as shown on the most recent property tax bill). Any person who shall continue to work on and/or construct a structure, land or building or use it after having been served with a stop work order, except such work as that person is expressly directed by the city to perform to remove a violation, shall be in violation of this chapter.

(G) Record applications. The Zoning Administrator shall maintain files of all applications for all the above permits, and for variances and shall keep records of all the permits and variances issued. These shall be filed in the City Administration office and shall be open to the public inspection. Copies shall be furnished at cost upon the request of any person having a proprietary or tenancy interest in the property involved.

(H) Inspections. The Zoning Administrator shall be empowered to make inspections of buildings or premises in order to properly carry out the enforcement of this chapter.

(I) Record nonconforming uses. The Zoning Administrator shall record all nonconforming uses of land found during inspections existing at the effective date of this chapter for purposes of carrying out the provisions of § 154.174.

(J) Record of complaints. The Zoning Administrator shall keep a record of every written and/or identifiable complaint of a violation of any of the provisions of this chapter, and of the action taken consequent to each such complaint, which records shall be public records. The Zoning Administrator is not limited to responding to complaints when it comes to enforcement of this chapter. Anytime there is a violation, the Zoning Administrator shall follow established procedures to provide notice of the violation and get it corrected.

(K) Occupancy permits. No structure or use shall be occupied (except for a single-family residence in zones permitting single-family residences), without first receiving an occupancy permit. An occupancy permit shall be issued by the Building Inspector following an inspection that confirms that all requirements of a previously issued zoning permit, if any, or if not, of this chapter have been met.

(L) Cancellation of zoning permits, special land use permits and variances.

(1) The Zoning Administrator shall have the power to revoke or cancel any zoning permit in case of failure or neglect to comply with any of the provisions of this chapter, or in case of any false statement or misrepresentation made in the application.

(2) Upon the revocation, all further construction activities and usage shall cease upon the site, other than for the purpose of correcting the violation.

(3) Cancellation of a permit issued for a special land use, planned unit development or variance shall not occur before a hearing by the body which granted the permit.

(4) The Zoning Administrator may issue a stop work order to halt all construction activities and usage pending a decision on cancellation of the permit.

(M) Collect, retain and return performance bonds. The City Clerk-Treasurer shall collect and retain all performance bonds, as may be required by the requirements of this chapter.

(N) Limits on authority. Under no circumstances is the Zoning Administrator permitted to make changes in this chapter, nor to vary the terms of this chapter while carrying out the duties prescribed herein. It shall be the responsibility of the City Council to assure that the Zoning Administrator enforces the provisions of this chapter.

(Ord. passed 6-24-1996; Am. Ord. 02-02, passed 2-11-2002; Am. Ord. 140714-1, passed 7-14-2014) Penalty, see § 154.999.

§ 154.172 APPLICATION PROCEDURES FOR ZONING PERMITS THAT DO NOT REQUIRE SITE PLAN REVIEW.

(A) Prior to construction or physical development of a proposed new use or structure, or the restoration and structural improvement (other than minor repairs) of on existing use or structure, an application for a required zoning permit must be made to the Zoning Administrator on forms supplied by the city.

(B) The data to be supplied by the applicant which shall constitute the application shall include the following, when applicable:

(1) Names and address of applicant;

(2) Location, shape, area and dimension of the lot, and of the proposed structure or improvement;

(3) Description of proposed use and of the building (dwelling, structure, barn, garage and the like) or improvements;

(4) The proposed number of sleeping rooms, dwelling units, occupants, employees, customers and other users;

(5) The yard, open space and parking space dimensions; and

(6) Proof of ownership of the property.

(C) A fee as may be set by the City Council and listed in the city’s schedule of fees shall accompany any plans or application in order to defray the cost of administration and inspection.

(D) The Zoning Administrator shall review the application for required contents and shall require conformance with zoning district regulations unless a variance is obtained from the Board of Appeals, where provided in this chapter.

(E) Upon determining that the applicable conditions have been met, the Zoning Administrator shall approve the application and issue a zoning permit. One copy of the zoning permit shall be returned to the owner or applicant.

(F) If the application for zoning permit is denied by the Zoning Administrator the reason or cause for denial shall be stated in writing.

(G) A zoning permit shall be valid for 12 months. If not acted upon, a new application shall be completed and submitted for review and determination of conformance with this chapter.

(H) At least one site inspection by the Zoning Administrator must be held during development and before the new use or structure is occupied.

(I) Cancellation of permit shall be as provided for in § 154.171(G) of this subchapter.

(Ord. passed 6-24-1996; Am. Ord. 02-02, passed 2-11-2002)

§ 154.173 PERFORMANCE GUARANTEES AND PERFORMANCE BONDING FOR COMPLIANCE.

(A) Generally. In authorizing any zoning permit, special land use permit, condominium subdivision, planned unit development or variance, the body or official which administers the respective request, as designated by this chapter, may require that a performance guarantee or bond be furnished to insure compliance with the requirements, specifications and conditions imposed with the grant of the approval, permit or variance; to insure the discontinuance of a temporary use by a stipulated time; and to provide sufficient resources for the city to complete required improvements or conditions in the event the permit holder does not.

(B) Improvements covered. Improvements that shall be covered by the performance guarantee or bond include, but are not necessarily limited to streets and other roadways, utilities, fencing, screening, landscaping, common open space improvements, lighting, drainage and sidewalks. The performance guarantee shall meet the following requirements.

(1) Form. The performance guarantee shall be in the form of cash, certified check, irrevocable bank letter of credit, surety bond, or similar instrument acceptable to the City Clerk, which names the property owner as the obligor and the city as the obligee.

(2) Time when required. The performance guarantee or bond shall be submitted at the time of issuance of the permit authorizing the activity of the project. If appropriate, based on the type of performance guarantee submitted, the city shall deposit the funds in an interest bearing account in a financial institution with which the city regularly conducts business.

(3) Amount. The amount of the performance guarantee or bond should be sufficient to cover the estimated cost of the improvements or conditions. Additional guidelines for establishing the amount of a performance guarantee or bond may be prescribed in the schedule of fees. If none are specified or applicable to the particular use or development, the City Council may by resolution establish a guideline which it deems adequate to deal with the particular problem while ensuring the protection of the city and its inhabitants.

(C) Return of performance guarantee or bond. The Zoning Administrator, upon the written request of the obligor, shall rebate portions of the performance guarantee, with earned interest, upon determination that the improvements for which the rebate has been requested have been satisfactorily completed. The portion of the performance guarantee to be rebated shall be in the same amount as stated in the itemized cost estimate for the applicable improvement or condition.

(D) Withholding and partial withholding of performance bond. When all of the required improvements have been completed, the obligor shall send written notice to the City Clerk of completion of the improvements. Thereupon, the Zoning Administrator shall inspect all of the improvements and shall transmit recommendation to the Planning Commission and City Council indicating either approval, partial approval, or rejection of the improvements or conditions with a statement of the reasons for any rejections. If partial approval is indicated, the cost of the improvement or condition rejected shall be set forth.

(1) The Planning Commission, or on a PUD, the City Council, shall either approve, partially approve or reject the improvements or conditions with the recommendation of the Zoning Administrator’s written statement and shall notify the obligor in writing of the action of the Planning Commission or the City Council within 30 days after receipt of the notice from the obligor of the completion of the improvements. Where partial approval is granted, the obliger shall be released from liability pursuant to relevant portions of the performance guarantee or bond, except for that portion adequately sufficient to secure provision of the improvements not yet approved.

(2) Should installation of improvements begin and fail to meet full completion based on the approved site plan, or if the project area is reduced in size and improvements are only partially completed or conditions only partially met, the city may complete the necessary improvements or conditions itself or by contract to an independent developer, and assess all costs of completing the improvements or conditions against the performance guarantee or bond. Any balance remaining would be returned to the applicant.

(E) Performance bond for razing of building.

(1) The Zoning Administrator may require a bond prior to the razing or demolition of principal structures and accessory structures having more than 144 square feet of floor area. The bond shall be determined by the City Council.

(2) A bond shall be conditioned on the applicant completing the razing within such reasonable period as shall be prescribed in the permit and complying with such regulations as to health and safety as the Zoning Administrator, Fire Inspector or the City Council may from time to time prescribe, including filling of excavations and proper termination of utility connections.

(F) Record. A record of authorized performance guarantees shall be maintained by the Zoning Administrator.

(Ord. passed 6-24-1996; Am. Ord. 02-02, passed 2-11-2002)

§ 154.174 NONCONFORMING USES, LOTS AND STRUCTURES.

Nonconforming lots, structures and uses, so long as they exist, prevent the full realization of the goals and objectives of the City of Saugatuck Master Plan and the objectives of this chapter. Upon the adoption of this chapter or subsequent amendments, there are lots, structures and uses of land and structures which were lawful prior to the adoption of this chapter, or the relevant amendment thereto, but which are not now in conformance. It is the intent of this chapter to permit these lawful nonconforming lots, structures and uses to continue but, with the exception of nonconforming residential structures, not to encourage their prolonged existence.

(A) Nonconforming lots.

(1) Existing lot of record. In any zoning district where an existing lot of record fails to meet the requirements for minimum lot area, minimum lot width or both, of the zoning district in which it is located, the lot may be used for the uses in the zoning district, provided that any structures comply with the required front, side, and rear yard setbacks of the zoning district; provided, however, that the foregoing shall not apply to a nonconforming lot abutted by another lot or lots under the same ownership. The zone district requires a minimum lot width of 80 feet. The undersized lot of 50 feet is a legal nonconforming parcel. The lot may be used to accommodate a permitted building provided all setbacks are complied with. A variance is not required.

Example: Nonconforming Lot

(2) Abutting lots of record under single ownership. In any zoning district, where two or more abutting lots of record in the same ownership do not, when considered individually, meet the requirements for minimum lot area, lot width, or both, of the zoning district in which the lot is located, prior to development any such lots shall be combined and considered as one lot for the purposes of this chapter. Where abutting lots of record which have been combined fail to meet the requirements for minimum lot area, lot width, or both, of the zoning district in which the combined lot is located, the combined lot may be used for uses allowed in the zoning district, provided that the required front, side and rear yard setbacks of the zoning district are complied with.

(B) Nonconforming uses of land not involving a building or structure. The lawful use of any land, not involving a building or structure, existing and lawful on the effective date of this chapter, or amendment thereto, may be continued, even though the use does not conform with the provisions of this chapter, or amendment thereto, subject to the following provisions:

(1) Enlargement. A lawful nonconforming use shall not be enlarged, increased or extended to occupy a greater area of land than was occupied on the effective date of this chapter, or amendment thereto;

(2) Relocation. A lawful nonconforming use shall not be moved in whole or in part to any other portion of the lot occupied by such use on the effective date of this chapter, or amendment thereto; and

(3) Cessation. If the property owner or lessee stipulates that any such nonconforming use of land will be discontinued, or if any such nonconforming use of land ceases or is abandoned for any reason for a period of one year, any subsequent use of the land shall conform to the requirements of this chapter. The occurrence of one or more of the following conditions shall be deemed to constitute an intent on the part of the property owner or lessee to cease, discontinue and/or abandon the nonconforming use:

(a) Utilities, such as water, gas and electricity to the property have been disconnected;

(b) Signs or other indications of the existence of the nonconforming use have been removed;

(d) The property and/or grounds have not been maintained and/or have fallen into disrepair; and

(e) Other actions which, in the opinion of the Zoning Administrator, evidence an intention on the part of the property owner or lessee to abandon the nonconforming use of the land.

(C) Nonconforming structures. Use of structures which are existing and lawful on the effective date of this chapter, or amendment thereto, may be continued, even though the structures do not conform with the provisions of this chapter, or amendment thereto, subject to the following provisions.

(1) Enlargement or alteration.

(a) A lawful nonconforming structure may not be enlarged, expanded or altered in any way which increases its nonconformity with the provisions of this chapter unless otherwise noted within this chapter. The nonconforming structure may be enlarged or altered provided that all such changes are in conformance with all provisions of this chapter at every structural level. All enlargements or alterations shall be subject to review and approval by the Zoning Administrator.

(b) Pursuant to the above, the Zoning Administrator may require the applicant to provide boundary and/or topographic surveys of the existing nonconforming structure and associated site. These surveys shall be sealed by a registered land surveyor registered in the State of Michigan. The topographic survey may be limited to providing dimensional detail on the height of existing structures, unless additional information is required by the Zoning Administrator.

(c) The surveys shall verify that the existing setbacks and height limit of the existing nonconforming structure comply with the setbacks and height standards of the underlying zone district. Further, the survey drawing shall be used to identify the specific area, with dimensions, to be occupied by the expansion or alteration of the nonconforming structure.

Example: Nonconforming Residential Structure

The existing dwelling encroaches on a required side yard setback resulting in a nonconforming situation. Proposed addition "A" may be permitted following a residential site plan review by the Planning Commission. However, a variance from the Zoning Board of Appeals would be required for addition "B".

(2) Non-use (dimensional) variance. Such variances may be authorized by the Zoning Board of Appeals for enlargement or alterations of nonconforming structures that increase any nonconformity(ies) under the provisions of §§ 154.150 through 154.157.

(3) ZBA conditions pursuant to enlargement/alteration. In authorizing a variance to enlarge or alter a lawful nonconforming structure, the Zoning Board of Appeals may impose conditions necessitated by the request including, but not limited to: additional site landscaping; site buffers; fencing; facade design requirements, building materials and building color changes; additional off-street parking and vehicular circulation modifications; signage; exterior lighting; and related building and site design modifications and conditions.

Example: Structural Alteration on a Nonconforming Lot

The zone district requires a minimum lot width of 80 feet. The undersized lot of 50 feet is a legal nonconforming parcel. The lot may be used to accommodate a permitted building provided all setbacks are complied with. In the following example, the undersized lot meets all building setbacks. The applicant wishes to increase the height of the structure. He or she may do so provided the upper story remains within all setbacks and height limits. A variance is not required.

(4) Damage and reconstruction.

(a) Nonconforming structure. In the event that any lawful, nonconforming, structure shall be damaged or destroyed by fire, wind, accident, act of God, or other similar means or manner, or threatened by flood, reconstruction, restoration, and/or raising shall be permitted by right, unless such destruction or damage was due to the intentional or reckless act or actions of an owner of the property. A structure to be reconstructed or restored shall be located within the original dimensions at every structural level, and/or within the original gross finished floor area, including decks and patios, with the exception that no portion of the structure shall be reconstructed within, or so as to encroach on, a public right-of-way or public easement. In addition, a structure to be reconstructed, restored, or raised within a designated special flood hazard area shall be located within the original dimensions at every structural level, and/or within the original gross finished floor area, including decks and patios, and shall further conform to the State Construction Code. Any reconstruction shall be subject to compliance with the provisions of this chapter, and any expansion shall be in full conformance with the requirements of the zoning district.

(b) Building permit required. Any reconstruction or restoration authorized pursuant to this division shall require the issuance of a building permit within 12 months of the occurrence of the damage.

(c) Special flood hazard area. For purposes of this division, threatened by flood shall mean that the structure is located in the special flood hazard area as designated in the current Flood Insurance Rate Map (FIRM) and the lowest floor level is less than one foot above the Base Flood Elevation (BFE) as designated in the FIRM. In addition, a structure that is threatened by flood shall not be raised more than three feet above the BFE.

(5) Decrease of nonconformity and re-establishment. If a lawful nonconforming structure is altered or modified so as to eliminate, remove or lessen any or all of its nonconforming characteristics, then those nonconforming characteristics shall not be later re-established or increased.

(D) Nonconforming use of structure. The lawful use of any structure existing and lawful on the effective date of this chapter, or amendment thereto, may be continued, even though the use does not conform with the provisions of this chapter, or amendment thereto, subject to the following provisions:

(1) Extending use within a structure. Any lawful nonconforming use may be extended throughout any internal parts of a building which were manifestly arranged or designed for such use at the effective date of this chapter, or amendment thereto, but no such use shall be extended to occupy any portion of a building which was not manifestly arranged or designed for the use at the effective date of this chapter, or amendment thereto, nor shall the use be extended to occupy any land or air space outside the building.

(2) Alteration of structure possessing a nonconforming use. No existing structure devoted to a lawful nonconforming use 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.

(3) Reconstruction of structure occupied by a nonconforming use. If a structure which conforms with the provisions of this chapter, but which is occupied by a lawful nonconforming use, is damaged by any means or in any manner to the extent that the value of reconstruction or restoration exceeds one-half the value of the structure prior to the damaging occurrence, as determined by the most recent city assessment of the value of the structure, excluding the value of the land, for purposes of taxation, the structure may be reconstructed or restored only if its use conforms with the provisions of this chapter.

(4) Re-establishment of nonconforming use. If a lawful nonconforming use of any structure is terminated and replaced by a permitted use, the nonconforming use shall not be later re-established.

(5) Cessation. If the property owner or lessee stipulates that a lawful nonconforming use of a structure or structure and land in combination will be discontinued, or if any such nonconforming use of a structure, or structure and land in combination, ceases for any reason for a period of more than 12 months, any subsequent use of the structure shall conform to regulations of the zoning district in which it is located. The occurrence of one or more of the following conditions shall be deemed to evidence an intent on the part of the property owner or lessee to cease, discontinue and/or abandon the nonconforming use:

(a) Utilities, such as water, gas and electricity to the property have been disconnected;

(b) Signs or other indications of the existence of the nonconforming use have been removed;

(d) The property, buildings and/or grounds have not been maintained and/or have fallen into disrepair; and/or

(e) Other actions which, in the opinion of the Zoning Administrator, constitute an intention on the part of the property owner or lessee to abandon the nonconforming use of the structure or structure and land in combination.

(6) Removal of nonconforming use status after removal or destruction of building. Where lawful nonconforming use status applies to a structure and land in combination, removal or destruction of the structure shall eliminate the nonconforming use status of the land.

(7) Change in use (substitution).

(a) A lawful nonconforming use of a structure may be changed to another nonconforming use only if functionally similar to the previous non-conforming use. Application for a change in use shall require approval of the Zoning Board of Appeals. The Board may approve the change only if it complies with all of the following standards:

1. The proposed use does not increase the degree of nonconformity existing prior to the change of use. Pursuant to this standard, the proposed use shall not create, or result in, impacts which are considered more objectionable than the use to be replaced. These impacts shall include, but are not limited to, increased traffic, truck deliveries, parking requirements, hours of operation, noise, vibration, odors, litter, outside storage, pedestrian movement, off-site drainage and other factors.

2. No structural alteration of the existing structure will be required to accommodate the new use, unless the alteration will bring the structure into greater conformity with the underlying zone district standards.

(b) In approving a change in use, the Board may require reasonable conditions in order to decrease the impact on adjoining properties. These conditions may include, but are not limited to, buffers, landscaping, off-street parking, access controls, hours of operation and other such conditions to reduce any negative impact.

(E) Basic repairs and maintenance.

(1) Basic repairs and maintenance. On any structure devoted in whole or in part to any lawful nonconforming use, work may be done in any period of 12 consecutive months on ordinary repairs, or on repair or replacement of non-bearing walls, fixtures, wiring, mechanical equipment or plumbing to an extent not exceeding 20% of the current replacement value of the structure as based on the records of the City Assessor, provided that the structure is not enlarged, extended, moved or structurally altered unless otherwise provided for by this chapter.

(2) Safety improvements. Nothing in this chapter shall be deemed to prevent the strengthening or restoring to a safe condition of any structure or part thereof declared to be unsafe by any official charged with protecting the public health, upon order of the official.

(F) Structures under construction. Any structure on which actual construction was lawfully begun prior to the effective date of this chapter, or amendment thereto, but which, under this chapter or amendment thereto, is classified as nonconforming, shall be considered existing and legally nonconforming pursuant to construction purposes and the intended use. Nothing in this chapter shall be deemed to require any change in the plans, construction or use of the structure. Actual construction is hereby defined to include the placing of construction materials in a permanent position and fastened in a permanent manner, except that where demolition or removal of an existing building has been substantially begun preparatory to reconstruction the demolition or removal shall be deemed actual construction.

(G) Nonconforming special land uses.

(1) There were uses which were permitted by right under Ord. 80-133 which are not permitted uses under this chapter. Those existing uses which were permitted uses and are listed as special land uses in this chapter shall not be considered nonconforming uses.

(2) Those uses, or parts of uses, which existed as permitted uses under Ord. 80-133 and are listed as special land uses in this chapter, shall be considered to be approved existing special land uses with the configuration shown on a site plan drawn to reflect how the uses existed at the time of adoption of this chapter. Parts of uses which are nonconforming immediately prior to the adoption of this chapter shall continue to be nonconforming under this chapter.

(3) An owner of an approved existing special land use permit may obtain from the Commission a certification of site plan reflecting how the use exists at the time of adoption of this chapter with identification of nonconforming parts, if any. In the case of disputes over facts on what existed at the time of adoption of this chapter, aerial photographs, flown in the city by the county or other aerial photographs, flown to the same or greater standards for mapping as the county’s photos, taken after the county photos but before the adoption of this chapter, shall be given the greatest weight as evidence to establish a certified site plan. For purposes of this section, the above mentioned photos may be accepted as the site plan for the written special use permit.

(4) When a special use owner applies to amend the approved existing special use for expansion or change, a written special use permit shall be prepared for the entire use and parcel. In review of the special use permit amendment application for expansion or change, the Commission shall only review and act on the expansion or change portion of the special use permit. If the application for amendment of the special use permit is approved, approved with conditions, denied or denied in part, the action shall not change or alter those parts of the special use that are shown on the approved existing special use permit.

(H) Purchase and condemnation of nonconforming uses and structures. Subject to the provisions of state law, the city may acquire by purchase, condemnation or other means private property, or an interest in private property, for the removal of nonconforming uses and structures.

(Ord. 02-02, passed 2-11-2002; Am. Ord. passed 9-8-2003; Am. Ord. 091123-1, passed 11-23-2009; Am. Ord. 111212-1, passed 12-12-2011; Am. Ord. 141208-1, passed 12-8-2014; Am. Ord. 201109-C, passed 11-9-2020)

§ 154.175 FEES; ESCROW FOR PROFESSIONAL REVIEWS.

(A) Filing application. Upon the filing of an application for a zoning permit, special land use permit, planned unit development, Board of Appeals review, variance or rezoning, an administrative fee, as determined by the City Council, shall accompany the application.

(B) Publication of fees. A schedule of fees as established by the City Council shall be maintained at the office of the Zoning Administrator.

(C) Payment of fees. Fees shall be paid to the City Clerk prior to the processing of any application required under this chapter.

(D) Fees in escrow for professional reviews. For any application for site plan approval, a special land use permit, condominium subdivision, planned unit development, variance, or other use or activity requiring a permit under this chapter, either the Zoning Administrator or the Planning Commission may require the deposit of fees to be held in escrow in the name of the applicant. An escrow fee shall be required for any project with more than ten dwelling units, or more than 10,000 square feet of enclosed space, or which requires more than 20 parking spaces. An escrow fee may be requested for any other project which may, in the discretion of the Zoning Administrator or Planning Commission create an identifiable and potentially negative impact on public infrastructure or services, or on adjacent properties and because of which, professional input is desired before a decision to approve, deny or approve with conditions is made.

(1) The escrow shall be used to pay professional review expenses of engineers, community planners, and any other professionals whose expertise the city values to review the proposed application and/or site plan of on applicant. Professional review will result in a report to the city indicating the extent of conformance or nonconformance with this chapter and to identify any problems which may create a threat to public health, safety or the general welfare. Mitigation measures or alterations to a proposed design may be identified where they would serve to lessen or eliminate identified impacts. The applicant will receive a copy of any professional review contracted by the city and a copy of the statement of expenses for the professional services rendered.

(2) No application for approval for which an escrow fee is requested will be processed until the escrow fee is deposited with the City Clerk. The amount of the escrow fee shall be established based on an estimate of the cost of the services to be rendered by the professionals contacted by the Zoning Administrator. The applicant is entitled to a refund of any unused escrow fees at the time a permit is either issued or denied in response to the applicant’s request.

(3) If actual professional review costs exceed the amount of an escrow, the applicant shall pay the balance due prior to receipt of any zoning or other permit issued by the city in response to the applicant’s request.

(Ord. passed 6-24-1996; Am. Ord. 02-02, passed 2-11-2002) Penalty, see § 154.999

§ 154.176 AMENDMENTS; PROCEDURES.

(A) City Council may amend. The regulations and provisions stated in the tables and text of this chapter and the boundaries of zoning districts shown on the zoning map may be amended, supplemented, or changed by the City Council in accordance with Public Act 110 of 2006, being M.C.L.A. §§ 125.3101 et seq., as amended.

(B) Initiation of amendments. Proposals for amendments, supplements or changes may be initiated by the City Council on its own motion, by the Planning Commission, or by written request of (or petition of) one or more owners of property to be affected by the proposed amendment.

(1) Written request or petition to City Council. Except for those initiated by the Planning Commission or City Council, all written requests by one or more owners for an amendment shall be submitted to the City Council or the Planning Commission directly.

(a) Referral to Planning Commission/public hearing. The City Council shall refer every proposed amendment, supplement or change to the Planning Commission for the holding of a required public hearing thereon and for review and recommended action.

(b) Planning Commission recommendation. In reviewing an application for the rezoning of land, whether the application be made with or without an offer of conditions, factors that should be considered by the Planning Commission and the City Council include, but are not limited to, the following:

1. Whether the rezoning is consistent with the policies and uses proposed for that area in the city’s Master Land Use Plan;

2. Whether all of the uses allowed under the proposed rezoning would be compatible with other zones and uses in the surrounding area;

3. Whether any public services and facilities would be significantly adversely impacted by a development or use allowed under the requested rezoning; and

4. Whether the uses allowed under the proposed rezoning would be equally or better suited to the area than uses allowed under the current zoning of the land.

(2) The Planning Commission may recommend any additions or modifications to the original amendment proposal. The Planning Commission shall transmit a written report with recommendations within a reasonable time frame to the City Council setting forth the reasons why they recommend acceptance, denial or modification of the amendment proposal.

(D) Action by the City Council. If the City Council deems any amendments, changes, additions or departures advisable to the proposed text or district boundaries recommended by the Planning Commission, it shall refer the same back to the Planning Commission for a further report thereon within a time specified by the City Council. Before any amendments shall become effective, the City Council may, on its own, conduct a public hearing on the proposed amendment. Thereafter, the City Council may adopt the amendment with or without any changes or may refer the same again to the Planning Commission for further report.

(E) Public hearing procedure and notification. For any required public hearing conducted by the Planning Commission or any additional public hearings by the City Council on a proposed amendment to this chapter, the following procedure and notice requirements shall apply:

(1) Notice of the public hearing shall be given by publishing the notice in accordance with § 154.179 and the Michigan Zoning Enabling Act, Public Act 110 of 2006 as amended;

(2) Notice of a proposed zoning change shall also be made in accordance with § 154.179 and the Michigan Zoning Enabling Act, Public Act 110 of 2006, as amended; and

(3) Following adoption of an amendment to this chapter, one notice of adoption shall be published in a newspaper of general circulation in the city within 15 days after adoption. The notice shall include the following information:

(a) A summary of the regulatory effect of the amendment including the geographic area affected, or the text of the amendment;

(b) The effective date of the amendment; and

(F) Effect of a protest to proposed amendment. Protests against any proposed zoning ordinance text or map amendment must be filed in accordance with §§ 402 and 403 of the Michigan Zoning Enabling Act, Public Act 110 of 2006, M.C.L.A. §§ 125.3402 through 125.3403 or as amended.

(G) Re-submittal. No application for a rezoning which has been denied by the City Council shall be resubmitted for a period of one year from the date of the last denial, except on grounds of newly-discovered evidence or proof of changed conditions found upon inspection by the City Council to be valid.

(H) Comprehensive review of zoning chapter. The Planning Commission shall, from time to time at intervals of not more than two years, examine the provisions of this chapter and the location of zoning district boundary lines and shall submit a report to the City Council recommending changes and amendments, if any, which are deemed to be desirable in the interest of public health, safety and general welfare.

(I) Conditional rezoning.

(1) Intent. It is recognized that there are certain instances where it would be in the best interests of the city, as well as advantageous to property owners seeking a change in zoning boundaries, if certain conditions could be proposed by property owners as part of a request for a rezoning. It is the intent of this section to provide a process consistent with the provisions of § 405 of the Michigan Zoning Enabling Act (M.C.L.A. § 125.3405) by which an owner seeking a rezoning may voluntarily propose conditions regarding the use and/or development of land as part of the rezoning request.

(2) Application and offer of conditions.

(a) An owner of land may voluntarily offer in writing conditions relating to the use and/or development of land for which a rezoning is requested. This offer may be made either at the time the application for rezoning is filed or may be made at a later time during the rezoning process.

(b) The required application and process for considering a rezoning request with conditions shall be the same as that for considering rezoning requests made without any offer of conditions, except as modified by the requirements of this section.

(c) The owner’s offer of conditions may not purport to authorize uses or developments not permitted in the requested new zoning district.

(d) The owner’s offer of conditions shall bear a reasonable and rational relationship to the property for which the requested new zoning is requested.

(e) Any use or development proposed as part of an offer of conditions that would require a special land use permit under the terms of this chapter may only be commenced if a special land use permit for the use or development is ultimately granted in accordance with the provisions of this chapter.

(f) Any use or development proposed as part of an offer of conditions that would require a variance under the terms of this chapter may only be commenced if a variance for the use or development is ultimately granted by the Zoning Board of Appeals in accordance with the provisions of this chapter.

(g) Any use or development proposed as part of an offer of conditions that would require site plan approval under the terms of this chapter may only be commenced if site plan approval for such use or development is ultimately granted in accordance with the provisions of this chapter.

(h) The offer of conditions may be amended during the process of rezoning consideration provided that any amended or additional conditions are entered voluntarily by the owner. An owner may withdraw all or part of its offer of conditions any time prior to final rezoning action of the City Council provided that, if the withdrawal occurs subsequent to the Planning Commission's public hearing on the original rezoning request, then the rezoning application shall be referred to the Planning Commission for a new public hearing with appropriate notice and a new recommendation.

(3) Planning Commission review. The Planning Commission, after public hearing and consideration of the factors for rezoning set forth in § 154.176(C), may recommend approval, approval with recommended changes or denial of the rezoning; provided, however, that any recommended changes to the offer of conditions are acceptable to and thereafter offered by the owner.

(4) City Council review. After receipt of the Planning Commission's recommendation, the City Council shall deliberate upon the requested rezoning and may approve or deny the conditional rezoning request. The City Council’s deliberation shall include, but not be limited to, a consideration of the factors for rezoning set forth in § 154.176,(D) and (H). Should the City Council consider amendments to the proposed conditional rezoning advisable and if such contemplated amendments to the offer of conditions are acceptable to and thereafter offered by the owner, then the City Council shall, in accordance with § 401 of the Michigan Zoning Enabling Act (M.C.L.A. § 125.3401), refer such amendments to the Planning Commission for a report thereon with a time specified by the City Council and proceed thereafter in accordance with the statute to deny or approve the conditional rezoning with or without amendments.

(5) Approval.

(a) If the City Council finds the rezoning request and offer of conditions acceptable, the offered conditions shall be incorporated into a formal written statement of conditions acceptable to the owner and conforming in form to the provisions of this section. The statement of conditions shall be incorporated by attachment or otherwise as an inseparable part of the ordinance adopted by the City Council to accomplish the requested rezoning.

(b) Contain a legal description of the land to which it pertains.

(c) Contain a statement acknowledging that the statement of conditions runs with the land and is binding upon successor owners of the land.

(d) Incorporate by attachment or reference any diagram, plans or other documents submitted or approved by the owner that are necessary to illustrate the implementation of the statement of conditions. If any such documents are incorporated by reference, the reference shall specify where the document may be examined.

(e) Contain a statement acknowledging that the statement of conditions or an affidavit or memorandum giving notice thereof may be recorded by the City with the Allegan County Register of Deeds.

(f) Contain the notarized signatures of all of the owners of the subject land preceded by a statement attesting to the fact that they voluntarily offer and consent to the provisions contained within the statement of conditions.

(6) Zoning map. Upon the rezoning taking effect, the zoning map shall be amended to reflect the new zoning classification along with a designation that the land was rezoned with a statement of conditions. The City Clerk shall maintain a listing of all lands rezoned with a statement of conditions.

(7) Approval. The approved statement of conditions or an affidavit or memorandum giving notice thereof shall be filed by the city with the Allegan County Register of Deeds. The City Council shall have authority to waive this requirement if it determines that, given the nature of the conditions and/or the time frame within which the conditions are to be satisfied, the recording of such a document would be of no material benefit to the city or to any subsequent owner of the land.

(8) Effect. Upon the rezoning taking effect, the use of the land so rezoned shall conform thereafter to all of the requirements regulating use and development within the new zoning district as modified by any more restrictive provisions contained in the statement of conditions.

(9) Compliance with conditions.

(a) Any person who establishes a development or commences a use upon land that has been rezoned with conditions shall continuously operate and maintain that development or use in compliance with all of the conditions set forth in the statement of conditions. Any failure to comply with a condition contained within the statement of conditions shall constitute a violation of this Zoning Ordinance and be punishable accordingly. Additionally, any such violation shall be deemed a nuisance per se and subject to judicial abatement as provided by law.

(b) No permit or approval shall be granted under this chapter for any use or development that is contrary to an applicable statement of conditions.

(10) Time period for establishing development or use. Unless another time period is specified in the ordinance rezoning the subject land, the approved development and/or use of the land pursuant to building and other required permits must be commenced upon the land within 18 months after the rezoning took effect and thereafter proceed diligently to completion. This time limitation may upon written request be extended by the City Council if: it is demonstrated to the City Council's reasonable satisfaction that there is a strong likelihood that the development and/or use will commence within the period of extension and proceed diligently thereafter to completion; and the City Council finds that there has not been a change in circumstances that would render the current zoning with statement of conditions incompatible with other zones and uses in the surrounding area or otherwise inconsistent with sound zoning policy.

(11) Reversion of zoning. If approved development and/or use of the rezoned land does not occur within the time frame specified under division (I)(10) above, then the land shall revert to its former zoning classification as set forth in M.C.L.A. § 125.3405. The reversion process shall be initiated by the City Council 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 thereafter be the same as applies to all other rezoning requests.

(12) Subsequent rezoning of land. When land that is rezoned with a statement of conditions is thereafter rezoned to a different zoning classification or to the same zoning classification but with a different or no statement of conditions, whether as a result of a reversion of zoning pursuant to division (I)(11) above or otherwise, the statement of conditions imposed under the former zoning classification shall cease to be in effect. Upon the owner’s written request, the City Clerk shall record with the Allegan County Register of Deeds a notice that the statement of conditions is no longer in effect.

(13) Amendment of conditions.

(a) During the time period for commencement of an approved development or use specified pursuant to division (I)(10) above or during any extension thereof granted by the City Council, the City shall not add to or alter the conditions in the statement of conditions.

(b) The statement of conditions may be amended thereafter in the same manner as was prescribed for the original rezoning and statement of conditions.

(14) City right to rezone. Nothing in the statement of conditions nor in provisions of this section shall be deemed to prohibit the city form rezoning all or any portion of land that is subject to a statement of conditions to another zoning classification. Any rezoning shall be conducted in compliance with this chapter and the Michigan Zoning Enabling Act (M.C.L.A. §§ 125.3101 et seq.)

(15) 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 an owner's rights under this chapter.

(Ord. 02-02, passed 2-11-2002; Am. Ord. 071008-01, passed 10-8-2007)

§ 154.177 VIOLATIONS.

(A) Any person, association, partnership, corporation or legal entity that violates disobeys, omits, neglects or refuses to comply with any provision of this chapter, any permit issue pursuant to this chapter, or any condition attached to a zoning permit, special land use permit, planned unit development permit, Zoning Board of Appeals decision or variance or other lawful directives of the Zoning Administrator shall be guilty of a violation of this chapter. Notice of any violations of this chapter shall be given in writing by the Zoning Administrator and shall be served by certified mail or personal service.

(B) A procedure for processing violations shall be established with the assistance of the City Attorney and retained on file with the City Clerk. The Zoning Administrator shall follow the procedure in pursuing all alleged ordinance violations.

(Ord. passed 6-24-1996; Am. Ord. 02-02, passed 2-11-2002)

Statutory reference:

Violations as a nuisance per se, abatement, see M.C.L.A. § 125.3407

§ 154.178 SEVERABILITY.

The various parts, sections and clauses of this chapter are declared to be severable. If any part, section, or clause is found to be unlawful by a court of competent jurisdiction, the remainder of the Ordinance shall not be affected.

(Ord. 02-02, passed 2-11-2002)

§ 154.179 PUBLIC NOTICE.

All applications for development approval requiring a public hearing shall comply with the Michigan Zoning Enabling Act, Public Act 110 of 2006, being M.C.L.A. §§ 125.3101 - 125.3702 and the other provisions of this section with regard to public notification.

(A) Responsibility. When the provisions of this chapter or the Michigan Zoning Enabling Act require that notice be published, the City Clerk shall be responsible for preparing the content of the notice, having it published in a newspaper of general circulation in the city and mailed or delivered as provided in this section and in compliance with the Michigan Zoning Enabling Act, Public Act 110 of 2006, as amended, being M.C.L.A. §§ 125.3101 - 125.3702.

(B) Notice and publication.

(1) For all public hearings, notice shall be published and, when required in division (B)(2) below, mailed or delivered not less than 15 days before the date the application will be considered for approval. If the name of the occupant is not known, the term "occupant" may be used in making notification.

(2) If the action that is subject to a public hearing is a rezoning of less than 11 adjacent properties, a special land use, a planned unit development, a variance request or an appeal of an administrative decision, then, notice shall be sent by mail or personal delivery to owners of property for which an approval is being considered and the applicant, if different than the owner(s) of the property. Notice shall also be sent to all persons to whom real property is assessed within 300 feet of the property and to all occupants of all structures within 300 feet of the property regardless of whether the property or occupant is located in the zoning jurisdiction.

(1) Describe the nature of the request. Identify whether the request is for a rezoning, text amendment, special land use, planned unit development, variance, appeal, ordinance interpretation or other purpose;

(2) Location. Indicate the property that is the subject of the request. The notice shall include a listing of all existing street addresses within the subject property. Street addresses do not need to be created and listed if no such addresses currently exist within the property. If there are no street addresses, other means of identification may be used. No street addresses must be listed when 11 or more adjacent properties are proposed for rezoning, or when the request is for an ordinance interpretation not involving a specific property; and

(3) Opportunity for comments. State where and when the request will be considered. Indicate when and where written comments will be received concerning the request.