The purpose of this article is to identify and to clarify the roles of the different boards and governing bodies responsible for review and decision-making on applications and appeals under this ordinance. The review boards included in this article are the city commission, the planning commission, and the zoning board of appeals.

15.2.1.

Powers and Duties. In addition to any authority granted by charter, ordinance or state law, the city commission has the following powers and duties under this ordinance:

A.

The city commission may propose, and shall review, hear, consider and approve or disapprove amendments to the text of this ordinance or the official zoning map.

B.

The city commission shall review, hear, consider and approve, approve with conditions, or disapprove applications for a PUD classification.

C.

The city commission shall review, hear, consider and approve, approve with conditions, or disapprove special use permits.

D.

The city commission may take any other lawful action not delegated to the planning commission, zoning board of appeals or designated city officials, as the city commission may deem desirable and necessary to implement the provisions of this ordinance.

15.3.1.

Establishment. The Planning Commission of the City of St. Joseph was established, and its membership and general powers and duties prescribed, in Chapter 22 of the St. Joseph Code of Ordinances.

15.3.2.

Powers and Duties. In addition to the general powers prescribed under Chapter 22 of the St. Joseph Code of Ordinances, the planning commission has the following powers and duties under this ordinance:

A.

The planning commission may propose, and shall review, hear, consider and recommend that the city commission approve or disapprove amendments to the text of this ordinance, or to the Official Zoning Map of the City of St. Joseph.

B.

The planning commission shall review, hear, consider and recommend that the city commission approve, approve with conditions, or disapprove applications for a PUD classification.

C.

The planning commission shall review, hear, consider and recommend that the city commission approve, approve with conditions, or disapprove special use permits.

15.4.1.

Establishment. The Zoning Board of Appeals of the City of St. Joseph was previously established, and "board" as used in this ordinance shall mean the zoning board of appeals. The board shall consist of five members appointed by the city commission for a term of three years who shall serve without compensation. The board shall elect its own chairman, and a majority of the board shall constitute a quorum for the transaction of business. The zoning administrator shall serve as its secretary.

15.4.2.

Rules of Procedure. The board shall, by a majority vote of its members present and qualified to vote, adopt rules of procedure governing its procedures on such matters as officers, voting, conduct of meetings, and related matters as it may consider necessary or advisable.

15.4.3.

Procedures.

A.

Meetings of the board shall be held at the call of the chairman and at such other times as the board, in its rules of procedure, may specify. There shall be a fixed place for each meeting and all meetings shall be open to the public. The board shall adopt rules of procedure and keep a record of its proceedings showing the action of the board and the vote of each member on each question considered.

B.

All findings of the board shall be in writing. Determinations and findings of the board shall be made within a reasonable time period.

C.

All members of the board present at a meeting shall vote on every matter unless a member of the board has a conflict of interest. A member of the board shall only abstain from a vote in a case in which the member has a conflict of interest, and the member shall state the nature of the conflict of interest. A board member who has a conflict of interest should state this at the beginning of the board proceeding related to the matter, and shall leave the room during the proceeding. A board member who has stated that they have a conflict of interest with regard to the matter, but who has not been replaced for this matter by an alternate member as described in Section 15.4.4, shall not count as a "present" board member for purposes of a quorum.

D.

A conflict of interest may include, but is not limited to, considering property a board member owns or has a legal or financial interest in or adjacent property, or considering a request by a party with whom a board member has close ties.

15.4.4.

Membership.

A.

The board shall consist of five regular members, and two alternate members. The members of the board on the effective date of this ordinance shall be the current members of the board without change to the length of their terms of office.

B.

No member of the city commission or city employee shall serve on the board.

C.

One member of the board shall also be a member of the planning commission.

D.

Members and alternate members of the board shall be appointed by the city commission.

E.

The term of appointment shall be for three years.

F.

Any vacancy on the board shall be filled not more than one month after the term of the preceding member has expired. A vacancy may also be filled for the unexpired term in the same manner as in the case of the original appointment.

G.

The alternate members shall consist of a first alternate member and a second alternate member. The alternate member with the most seniority on the board shall be the first alternate. The alternate members may take part in all deliberations of the board but shall not have a vote unless a regular member is unable to vote because of absence or a conflict of interest. The first alternate member shall have the priority to replace the first regular member that is absent or unable to vote. The second alternate member shall replace the second regular member that is absent or unable to vote.

H.

A member of the board may be removed by the city commission for misfeasance, malfeasance, or nonfeasance in office as provided by state law.

15.4.5.

Powers and Duties. The board shall have the following powers and duties under this ordinance:

A.

The board shall review, hear, consider and approve, approve with conditions or disapprove requests for variances.

B.

The board shall hear, review, consider, and affirm, modify or reverse any order, decision, determination or interpretation of the zoning administrator or any other administrative official made under the terms of this ordinance.

C.

The board shall review, hear, consider and approve, approve with conditions or disapprove a change of one nonconforming use to another nonconforming use.

D.

The board shall review, hear, consider and approve or deny appeals of conditional uses as provided in Section 11.3.

15.4.6.

Jurisdiction. The board, in conformity with the provisions of the city charter, this ordinance, and Act 207 of the Public Acts of 1921, as amended, may reverse or affirm, wholly or in part, or may modify the order, requirements, decision, or determination appealed from and shall make such an order, requirements, decision, or determination as, in its opinion, ought to be made and to that end, shall have all the powers to hear and decide all matters referred to it or upon which it is required to pass under this ordinance, as the officer or body from whom an appeal is taken.

15.4.7.

Fees. The required fees for a hearing before the board are a part of the cost of any zoning permit and are in addition to other building permit fees. The required fees for any hearing before the Board shall be paid as specified in Section 14.7 and certain additional expenses may be recovered if there are any additional costs incurred over and above the amount of the required fee. Those costs shall include, but are not limited to, if applicable, any additional hearings, the attendance of the city attorney at the hearing(s), engineering fees, and professional planner consulting fee. An escrow may be collected to pay for these costs per the procedure in Section 14.7.

15.4.8.

Appeals, Interpretations and Variances. Subject to the provisions of Section 15.4.10, the board, after public hearing, shall have the power to consider and approve, approve with conditions, or deny applications for appeals, interpretations, and variances filed as hereafter provided, in such a manner that the spirit of the ordinance shall be observed, public safety secured, and substantial justice done:

A.

Where it is alleged by the appellant that there is an error or misinterpretation in any order, requirement, decision, grant, or refusal made by the zoning administrator or other administrative officials in the carrying out or enforcement of the provisions of this ordinance, then an appeal or request for ordinance interpretation shall be filed with the board. In deciding a request for ordinance interpretation, the board shall ensure that its interpretation is consistent with the intent and purpose of the ordinance, the article in which the language in question is contained, and all other relevant provisions of the ordinance. All zoning map interpretation questions shall be guided by the standards in Section 4.3.1.

B.

Where, by reason of the exceptional narrowness, shallowness or shape of a lot of record, or by reason of exceptional topographic conditions or other extraordinary situation or condition of the land, building, or structure, or of the use or development of property immediately adjoining the property in question, the literal enforcement of the requirements of this ordinance would involve practical difficulties or would cause unnecessary hardship.

C.

Where carrying out the strict letter of this ordinance relating to the construction, structural changes in equipment, or alterations of buildings or structures, or the use of land, buildings, or structures would result in practical difficulties or unnecessary hardship.

15.4.9.

Reserved.

15.4.10.

Dimensional Variance Standards. No variance to the provisions of this ordinance shall be granted unless the board finds, from substantial evidence, that all of the following standards have been met. In each instance, the board shall specifically address each of the listed criteria in reaching its decision, and each member shall affirmatively state that they believe each of the following nine standards has been met; a member who believes that even one of the following nine standards has not been met shall vote to deny the application:

A.

The variance would not be detrimental to adjacent property and the surrounding neighborhood.

B.

The variance would not impair the intent and purpose of this ordinance.

C.

Exceptional or extraordinary circumstances or conditions apply to the property in question or to the intended use of the property that do not apply generally to other properties in the same zoning district and vicinity. Such circumstances shall create a practical difficulty because of unique circumstances or physical conditions such as narrowness, shallowness, exceptional shape or topography of the property involved, or to the intended use of the property. See Section 15.4.8.B.

D.

The variance is necessary for the preservation and enjoyment of a substantial property right similar to that possessed by other properties in the same zoning district and in the vicinity. The possibility of increased financial return shall not of itself be deemed sufficient to warrant a variance.

E.

The condition or situation of the specific piece of property or of the intended use of said property, for which the variance is sought, is not of so general or recurrent a nature as to make reasonably practicable the formulation of a general regulation for the condition or situation.

F.

The condition or situation for which the variance is sought shall not be the result of actions of the property owner.

G.

Strict compliance with area, setbacks, frontage, height, bulk or density requirements would unreasonably prevent the owner from using the property for a permitted purpose, or would render conformity unnecessarily burdensome.

H.

The variance requested is the minimum change necessary to mitigate the hardship.

I.

The variance will relate only to the property that is the subject of the application.

15.4.11.

Use Variances. Use variances shall not be permitted in any zoning district within the city. An alternative procedure may be available in some circumstances; see Section 13.9 for the hardship planned unit development procedure and requirements.

15.4.12.

Special Exceptions. In the event that the Michigan Department of Environmental Quality acknowledges a special exception is warranted in a designated area of special flood hazard, high risk erosion area or sand dune area, the board shall have the power to grant a special exception pursuant to applicable standards in state law.

15.4.13.

Conditions of Approval.

A.

In granting a variance, the board may impose specific conditions regarding the location or character of fencing, buffering or landscaping, or such other design changes as are reasonably necessary for the furtherance of the intent and spirit of this ordinance and to ensure the protection of the public interest and abutting properties; see Section 14.11. To ensure compliance with such conditions, the board may require a cash deposit, certified check, irrevocable bank letter of credit, or surety bond per the requirements of Section 14.8. Variances granted expire pursuant to the requirements of Section 14.13.

B.

The board may require that its decision be recorded with the Berrien County Register of Deeds; see Section 14.12.

15.4.14.

Decisions of the Board. The concurring vote of a majority of the total membership of the board shall be necessary to reverse an order, requirement, decision or determination of the administrative official or body from whom the appeal is taken, or to decide in favor of the applicant on any matter upon which they are required to pass. The board shall decide all applications and appeals within a reasonable time of filing of an application for ordinance interpretation, a variance or an appeal. A copy of the board's decision shall be transmitted to the applicant or appellant. Such decision shall be binding upon the zoning administrator, and the terms and conditions shall be incorporated into the permit issued to the applicant or appellant, whenever appropriate.

15.4.15.

Stay of Proceedings. An appeal shall stay all proceedings in furtherance of the action appealed from, unless the zoning administrator certifies to the board after notice of appeal shall have been filed with him, that by reason of facts stated in the certificate, a stay would, in his opinion, cause imminent peril to life or property. In such case, proceedings shall not be stayed other than by a restraining order which may be granted by the board or by a court of competent jurisdiction.

15.4.16.

Hearings. Public hearing notice shall be provided and public hearings shall be conducted pursuant to the requirements of Section 14.14.

15.4.17.

Reapplication.

A.

No application for a variance, ordinance interpretation, or appeal which has been denied, wholly or in part, shall be resubmitted for a period of one year from the date of the denial, except on satisfactory proof of substantially changed conditions, newly discovered evidence, or a falsehood previously relied upon by the city which, through the exercise of normal diligence, could not have been discovered before the hearing, as determined by the Zoning Administrator.

B.

The following circumstances is an exception to the one year time limit in A, above: in the event that an application for a variance, ordinance interpretation, or appeal receives a tied vote from the board and is therefore recommended for neither approval nor disapproval, or if the application is denied but it would be mathematically possible by addition of votes from members who were absent from that meeting to have resulted in approval, a reapplication may be submitted at any time.

C.

A reapplication shall be processed as a new application.

15.4.18.

Reserved.

15.4.19.

Review by Circuit Court.

A.

The decision of the board shall be final. However, any aggrieved party, including the city, may obtain a review thereof both on the facts and the law, in Berrien County Circuit Court; provided that application is made to the court within 21 days after the minutes of the meeting at which the final decision was made are available.

B.

Under state law, the circuit court shall review the record and decision of the board to ensure that the decision:

1.

Complies with the constitution and laws of the state.

2.

Is based upon proper procedure.

3.

Is supported by competent, material, and substantial evidence on the record.

4.

Represents the reasonable exercise of discretion granted by the board.

C.

If the court finds the record of the board inadequate to make the review required, or that additional evidence exists which is material and with good reason was not presented to the board, the court shall order further proceedings before the board on conditions which the court considers proper. The board may modify its findings and decision as a result of the new proceedings, or may affirm its original decision. Any supplementary record and decision shall be filed with the court.

D.

Authority of Court. As a result of the review required by this section, the court may affirm, reverse, or modify the decision of the board.