A.   There is hereby established a Zoning Board of Appeals which shall perform its duties and exercise its powers as provided in Public Act 110 of 2006, as amended, and in such a way that the objectives of this ordinance shall be observed, public safety secured and substantial justice done. The Zoning Board of Appeals shall consist of seven regular members, each to be appointed by a majority of the City Council members serving. All members of the Zoning Board of Appeals shall be selected from the electors of the City and shall be representative of the population distribution and of the various interests in the City. One member of the Board may be a member of the Planning Commission, with the remaining members selected from the electors of the City. Appointments shall be for a three year term expiring on June 30 in the year of expiration, except for appointments to fill vacancies or appointments of the member of the Board who is also a member of the Planning Commission. All vacancies for unexpired terms shall be filled for the remainder of the term in the same manner as the original appointment. The term of the member of the Board who is also a member of the Planning Commission shall be limited to the time he or she is a member of the Planning Commission. Appointments shall be made not more than one month after the term of the preceding member has expired. The City Council may also appoint to the Zoning Board of Appeals not more than two alternate members for the same term as regular members who may be called to serve in the absence of a regular member or for the purpose of reaching a decision on a case in which a member has abstained for reasons of conflict of interest. The alternate member shall serve in accordance with the provisions of applicable law. The compensation for members of the Board shall be established by City Council, and members may be reimbursed for expenses actually incurred in the discharge of their duties.

   B.   The City Council may also appoint positions for up to two alternate members to serve on the Zoning Board of Appeals for the same terms as regular members. The alternate members shall be called on a rotating basis to sit as regular members of the Board in the absence of a regular member. An alternate member may also be called to serve in the place of a regular member for the purpose of reaching a decision on a case in which the regular member has abstained for reasons of conflict of interest. Once an alternate has been called to serve in a particular case, he or she shall continue to participate in that case until a decision has been rendered.

   C.   Members of the Zoning Board of Appeals shall be removed by the City Council for misfeasance, malfeasance or nonfeasance in office upon written charges and after public hearing. A member shall disqualify himself or herself from a vote in which he or she has a conflict of interest. Failure of a member to disqualify himself or herself from a vote in which the member has a conflict of interest constitutes malfeasance in office.

   D.   A member of the Zoning Board of Appeals who is also a member of the Planning Commission or City Council shall not participate in a public hearing or vote on the same matter that the member voted on as a member of the Planning Commission or City Council. However, the member may consider and vote on other unrelated matters involving the same property.

(Ord. No. 278-Q, § 14, 10-5-95; Ord. No. 278-NN, §§ 22 - 24, 34, 1-6-09)

   A.   The Zoning Board of Appeals shall establish rules and procedures in accordance with the provisions of this ordinance and the applicable state law.

   B.   All meetings of the Zoning Board of Appeals shall be held at the call of the Chairperson or the Board in accordance with their adapted procedures and at such other times as the Board shall determine or specify in its rules of procedure. All meetings, including hearings, conducted by the Board shall be open to the public, except those authorized to be conducted in closed sessions pursuant to the Open Meetings Act, Public Act 267 of 1976. The public shall be afforded an opportunity to speak at any public hearing in accordance with the rules of procedure and by-laws of the Board. The Board shall not conduct business unless a majority of its members are present.

   C.   If the Zoning Board of Appeals receives a written request for a variance, interpretation of the Zoning Ordinance, or an appeal of an administrative decision, the Zoning Board of Appeals shall conduct a public hearing on the request. Notice shall be given in accordance with Section 28.20. If the request does not involve a specific parcel of property, notice need only be published as set forth in Section 28.20 A and given to the person making the request as set forth in Section 28.20 C 1 a.

(Ord. No. 278-NN, §§ 25, 34, 1-6-09)

   The Zoning Board of Appeals shall have all powers and duties granted by state law and by this ordinance to such boards, including the following specific powers:

   A.   Ordinance interpretations.

      1.   Interpret the ordinance test and map and all matters relating thereto whenever a question arises in the administration of this ordinance as to the meaning and intent of any provision or part of this ordinance. Any text interpretation shall be narrow and in a manner as to carry out the intent and purpose of this ordinance. Interpretations shall not have the effect of amending the ordinance.

      2.   Map interpretations should be based on the rules of the ordinance (Article 2) and any relevant historical information.

   B.   Appeals of administrative decisions.

      1.   To hear and decide appeals where it is alleged by the appellant that there is error in any order, interpretation, requirement, permit, decision or refusal made by the Zoning Official in enforcing any provision of this ordinance.

   C.   Modification and variance of ordinance requirements.

      1.   To hear and decide on all matters referred to it or upon which it is required to pass under this ordinance.

      2.   Permit such modification of the height, placement and area regulations as may be necessary to secure an appropriate improvement of a lot which is of such shape or so located with relation to surrounding development or physical characteristics that it cannot otherwise be appropriately improved without such modification.

      3.   Permit the modification of the automobile parking space or loading space requirements where, in the particular instance, such modifications will not be inconsistent with the purpose and intent of such requirement.

      4.   Modify the environmental provisions of Article 24, including walls, buffering, screening or landscaping, provided the spirit and intent of Article 24 is upheld.

      5.   Modify the requirements under section 28.00, subparagraph H, if the Zoning Board of Appeals finds that the intended function of the antenna would be adversely affected, in some significant way, if the antenna had to be constructed in accordance with the other provisions of that section, or the variance is necessary to harmonize the city’s ordinances and federal laws, rules or regulations. A variance under this section does not require a showing of hardship or practical difficulty.

      6.   To grant variances to the provisions of this ordinance where there are practical difficulties or unnecessary hardships within the meaning of state law and this article in the way of carrying out the strict letter from this ordinance so that the spirit of the ordinance will be observed, public safety and welfare secured, and substantial justice done in accordance with the applicable standards set forth below. In the consideration of all appeals and proposed variances to this ordinance, the Zoning Board of Appeals shall, before granting any variance in a specific case, first determine that the proposed variance will not impair an adequate supply of light and air to adjacent property or unreasonably increase the congestion in public streets, or increase the danger of fire or endanger the public safety or unreasonably diminish or impair established property values within the surrounding area or in any other respect, impair the public health, safety, comfort, morals or welfare of the city's inhabitants.

         a.   Standards for Approval of a Non-Use Variance. The Zoning Board of Appeals may grant a non-use variance to provide relief from a specific standard in this ordinance relating to an area, dimension or construction requirement or limitation upon the concurring vote of a majority of the members of the Zoning Board of Appeals. A non-use variance shall not be granted unless the Zoning Board of Appeals finds that there is a practical difficulty in the way of carrying out the strict letter of this ordinance. In determining whether a practical difficulty exists, the Zoning Board of Appeals must find that:

            (i)   Compliance with the strict letter of the restrictions governing area, setbacks, frontage, height, bulk, lot coverage, density or other dimensional or construction standards will unreasonably prevent the owner from using the property for a permitted purpose or will render conformity with such restrictions unnecessarily burdensome;

            (ii)   The grant of a variance will do substantial justice to the applicant as well as to other property owners in the district and a lesser variance will not give substantial relief to the applicant as well as be more consistent with justice to others property owners in the zoning district;

            (iii)   The plight of the applicant is due to unique circumstances of the property;

            (iv)   The problem is not self-created;

            (v)   The spirit of the ordinance will be observed, public safety and welfare secured, and substantial justice done; and

            (vi)   There is compliance with the standards for discretionary decisions as contained in paragraph D below.

         b.   Standards Applicable to Use Variances. The Zoning Board of Appeals may grant a use variance to authorize a land use which is not, otherwise, permitted by this ordinance in the district where the property is located upon the concurring vote of five members of the Zoning Board of Appeals. An application for use variance shall not be submitted or considered unless the applicant has (i) received a written determination from the Office of Planning and Zoning that the proposed land use is not permitted under this ordinance in the district where the property is located, or (ii) received a final decision from the City Council denying a rezoning of the property to a zoning district where the proposed land use would be permitted under this ordinance. A use variance shall not be granted unless the Zoning Board of Appeals finds on the basis of substantial, competent and material evidence presented by the applicant, that there is an unnecessary hardship in the way of carrying out the strict letter of this ordinance. In determining whether an unnecessary hardship exists, the Zoning Board of Appeals must find that:

         (i)   The property in question cannot be reasonably used or cannot yield a reasonable return on a prudent investment if the property were to be used only for a purpose allowed in the zoning district where the property is located;

         (ii)   The plight is due to unique circumstances peculiar to the property and not to general neighborhood conditions;

         (iii)   The use to be authorized by the variance will not alter the essential character of the area and locality;

         (iv)   The problem is not self-created;

         (v)   The spirit of this ordinance will be observed, public safety and welfare secured, and substantial justice done; and

         (vi)   There is compliance with the standards for discretionary decisions as contained in paragraph D below.

      c.   An application for approval of a variance shall not be processed or placed on an agenda for a public hearing, if a public hearing is required for approval under the Zoning Ordinance, if the site and/or building for which the variance is sought is subject to any outstanding, unresolved Property Maintenance Code violation. Any outstanding Property Maintenance Code violation must be first resolved by correcting the violation or by having the applicant/property owner sign a written code compliance agreement with the City setting forth a written commitment by the applicant/property owner to bring the site and/or building into full compliance with all provisions of the Property Maintenance Code within a specific time period acceptable to the City Development Director.

      1.   Promote the intent and purpose of this ordinance;

      2.   Be designed, constructed, operated, maintained and managed so as to be compatible, harmonious and appropriate in appearance and in operation with the existing or planned character of the general vicinity, adjacent uses of land, the natural environment, the capacity of public services and facilities affected by the building structure or land use, and the community as a whole;

      3.   Be served adequately by essential public facilities and services, such as highways, streets, police and fire protection, drainageways, refuse disposal or that the persons or agencies responsible for the establishment of the building structure, land use or activity shall be able to provide adequately any such service sufficiently;

      4.   Not be detrimental, hazardous, or disturbing to existing or future neighboring uses, persons, property or the public welfare; and

      5.   Not create additional requirements at public cost for public facilities and services that will be detrimental to the economic welfare of the community.

   F.   The City Council shall have the authority to approve variances or modifications of the standards of the Zoning Ordinance if the variance or modification was considered and approved by the City Council:

      1.   As part of a Planned Unit Development project under Section 22.03;

      2.   As a development pursuant to a conditional rezoning approved by the City Council under Section 32.00 C. 4. and H.; or

      3.   As a development pursuant to a consent judgment approved by the City Council. The City Council shall have the same authority with respect to considering and approving such requests as the Zoning Board of Appeals.

(Ord. No. 278-U, § 19, 1-6-98; Ord. No. 278-CC, §§ 18, 19, 20, 6-3-03; Ord. No. 278-FF, § 4, 5-3-05; Ord. No. 278-NN, § 34, 1-6-09; Ord. No. 278-RR, § 5, 10-18-11)

   A.   The concurring vote of four members of the Board shall be necessary to approve any modification, interpretation or appeal stated in section 30.02A, B and C.

   B.   The concurring vote of five members of the Board shall be necessary to approve any use variance permitted under section 30.02D.

   C.   Nothing contained herein shall empower the Board to override the decisions of the Planning Commission with respect to the approval or denial of special approval land uses.

   D.   Nothing contained herein shall empower the Board to override the decisions of the City Council with respect to the approval or denial of planned unit developments or any other decision authorized to be made by the City Council.

   E.   Nothing contained herein shall empower the Board to change the terms of this ordinance, to effect changes in the zoning map or to add to the uses permitted in any zoning district, except when specifically empowered to do so (section 30.02(D)).

   F.   Every decision of the Board shall be based upon findings of fact, and each and every such finding shall be supported in the record of the proceedings of the Board.

   G.   In authorizing a variance or taking any other action within its jurisdiction, the Board may attach such conditions as may be deemed necessary in the furtherance of the purposes of this ordinance, provided any conditions are in compliance with the three standards listed in section 25.03D of this ordinance. Any failure to satisfy a condition of approval imposed by the Zoning Board of Appeals shall constitute a separate violation of the Zoning Ordinance.

   H.   The following procedural remedies shall be available to enforce conditions of approval imposed by the Zoning Board of Appeals relating to an approval of a modification or variance to ordinance requirements:

      1.   If the City Manager or his/her designate reasonably believes, based on available information, that the applicant, property owner, or occupant for whom a modification or variance of ordinance requirements has been approved has failed to satisfy the conditions of approval, the city may, through the authorized official designated below, take any of the following actions in order to obtain compliance:

         a.   The Building Official, Code Enforcement Officer, Fire Marshal, Police Officer or other city employee authorized to issue an ordinance complaint or civil infraction may issue an ordinance complaint or civil infraction to be prosecuted in the District Court based upon his/her observations or investigation, or may ask the city attorney to request issuance of warrant for an ordinance complaint based upon the information or evidence presented to him/her that there has been a violation of the City Code or Zoning Ordinance.

         b.   The City Manager or his/her designate based upon available information or evidence may request the Zoning Board of Appeals to conduct a hearing in accordance with the procedure set forth in paragraph 2 below to determine whether the conditions of approval have been satisfied, and if not, whether the conditions of approval relating to approval of the modification or variance should be enforced, or the approval revoked for failing to satisfy the conditions.

         c.   After City Council authorization, the city attorney may commence litigation in the Circuit Court to require the responsible party to satisfy the conditions or abate violation of the Zoning Ordinance as authorized by law, or request revocation of the approval.

         d.   The city through the appropriate authorized official may take any other enforcement or remedial action authorized by law.

      2.   If the Zoning Board of Appeals receives a request from the City Manager or his/her designate supported by credible information that the applicant, property owner, or occupant granted for whom approval of a modification or variance to ordinance requirements has been granted has failed to continuously satisfy the conditions of approval, the Zoning Board of Appeals may conduct a hearing in accordance with the following procedure to review whether the applicant, property owner, or occupant has satisfied the conditions of approval of the modification or variance:

         a.   The applicant, property owner, or occupant granted approval of the modification or variance and other persons entitled to notice of the original hearing on the ordinance modification or variance request, shall be advised in writing by the city administration of the date of the meeting at which the Zoning Board of Appeals intends to review compliance with the conditions of approval, which notice shall be not less than 30 days before the scheduled meeting, except in cases where the public health, safety or welfare is imminently threatened or endangered, in which case a hearing shall be held within no earlier than five days after written notice of the meeting date has been given.

         b.   The written notice shall specify the condition(s) of approval relating to the modification or variance with which the applicant, property owner, or occupant is alleged to have failed to comply.

         c.   At the Zoning Board of Appeals hearing, the city administration and other interested parties (or their authorized representatives) shall be given an opportunity to present evidence or information showing that the conditions of approval have not been continuously satisfied.

         d.   At the Zoning Board of Appeals hearing, the applicant, property owner, or occupant and other interested parties (or their authorized representatives) shall be given an opportunity to present evidence or information showing whether the conditions of approval have been continuously satisfied.

         e.   After the Zoning Board of Appeals concludes the hearing, the Board may make its determination as to whether the applicant, property owner, or occupant has continuously satisfied the conditions of approval, whether the applicant, owner or occupant should be given additional time to satisfy the conditions of approval, or whether the conditions of approval should be changed. The Board may determine that the applicant has satisfied the conditions of approval, has failed to continuously satisfy the conditions, or if it deems appropriate, grant an additional time period for compliance, or change the conditions of approval. In addition, the Board may revoke the approval of the modification or variance, or recommend that the City Council commence an action in Circuit Court to enforce the conditions, or alternatively revoke the approval of the modification or variance if the Board determines by majority vote of those members present that the applicant, property owner, or occupant has not continuously satisfied one or more of the conditions of approval. The reasons for the Board's action shall be recorded into the record, with a written copy furnished to the applicant, property owner, or occupant after certification of the minutes of the meeting at which such action was taken.

         f.   The applicant, property owner, or occupant, or any person who has an interest affected by the Zoning Ordinance who is aggrieved by a decision of the Zoning Board of Appeals, may appeal a final decision of the Zoning Board of Appeals to the Circuit Court within the time period prescribed by law. A recommendation of Circuit Court action shall not constitute a final decision. The appeal period shall commence on the date the minutes of the Zoning Board of Appeals are certified relating to the Board's decision.

         g.   If the city prevails in any action taken to enforce the conditions of approval imposed by the Zoning Board of Appeals relating to the modification or variance, or if the Zoning Board of Appeals revokes the modification or variance as a result of the applicant, property owner, or occupant failing to continuously satisfy the conditions of approval, the applicant, property owner, or occupant shall be required to reimburse the city for any costs incurred in taking such action, including attorney fees, experts fees, court costs, and other expenses incurred. The city may impose a lien against any interest the applicant, property owner, or occupant has in the property to secure payment of such reimbursement.

      3.   The procedures set forth in section 30.03H1b relating to modifications or variances to the Zoning Ordinance requirements shall apply only to such approvals granted by the Zoning Board of Appeals after the effective date of this amendment to the Zoning Ordinance.

      4.   The City Manager may promulgate administrative rules and regulations necessary to implement and administer the enforcement and hearing procedures set forth in section 30.03 of this ordinance. All rules and regulations shall be effective 30 days after promulgation. Copies of the rules and regulations shall be filed with the City Clerk as of their effective date and shall be subject to public inspection or copying during the city's normal business hours.

   I.   Zoning Board of Appeals may appeal the decision to the Circuit Court within the time period prescribed by law. The appeal period shall commence on the date the minutes of the Zoning Board of Appeals are certified relating to the Board's decision. Any party who is aggrieved by a decision of the Zoning Board of Appeals may appeal the decision to the Circuit Court within 30 days after the Zoning Board of Appeals makes a final decision and issues its written decision signed by the chairperson, or signed by the members of the body if there is no chairperson, or within 21 days after approval of the minutes of such final decision by the Zoning Board if the Zoning Board’s chairperson (or all of its members where there is no chairperson) do not issue a written decision.

(Ord. No. 278-Y, § 44, 5-16-00; Ord. No. 278-EE, §§ 4, 5, 10-5-04; Ord. No. 278-NN, § 26, 34, 1-6-09)

   A.   Appeals shall be commenced by a person filing a notice of appeal or petition as described in the rules and procedures of the Zoning Board of Appeals, accompanied by such appeal fee as may be specified by City Council. The notice of appeal shall specify the specific grounds upon which the appeal is based and shall be signed by the applicant and property owner. It shall also specify the requirement from which a variance is sought and the nature and extent of such variance.

   B.   The appeal shall also be accompanied by a fully completed application along with plot plans meeting the rules of procedure adopted by the Board.

   C.    The Board shall fix a reasonable time for the hearing of the appeal and shall give notice as required by this ordinance and the Michigan Zoning Enabling Act.

   D.    The Office of Planning shall transmit to the Board all of the documents and records related to the appeal.

   E.   Any person may appear in person or be represented by a duly authorized agent.

   F.   The Board shall conduct a public hearing on the appeal, and shall review the official record, and base its decision on the information presented. The official record shall include:

      1.   The relevant administrative record and administrative orders issued thereon relating to the appeal;

      2.   The notice of appeal;

      3.   Such documents, exhibits, photographs or written reports as may be submitted to the Board for its consideration;

      4.   The minutes of the hearing, findings of fact and decisions and orders of the Board.

   G.   The record and decision of the Board shall meet all of the following:

      1.   Complies with the constitution and laws of this 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 law to the Zoning Board of Appeals.

(Ord. No. 278-EE, § 6, 10-5-04; Ord. No. 278-NN, § 27 - 29, 34, 1-6-09)