A Zoning board of appeals is hereby established in accordance with the Michigan Zoning Enabling Act (Public Act 110 of 2006). The purpose of this article is to establish the authority, procedures and requirements under which the zoning board of appeals shall function. It shall also ensure that the objectives of this ordinance are fully and equitably achieved, that a means be provided for competent interpretation of this ordinance, that flexibility be provided for the strict application of this ordinance, that the spirit of the ordinance be observed, public safety secured and substantial justice done.

(Ord. No. 440, §§ 1, 10, 6-10-19)

A.

Base membership: The board shall consist of not less than five members appointed by the city council: the chairman of the planning commission, a member of the city council appointed by the city council; and the remaining members appointed by the city council from the electors residing in the city.

B.

Alternates: The city council/township board may appoint not more than two alternate members for the same term as regular members to the zoning board of appeals. The alternate members may be called upon as specified herein to sit as regular members of the zoning board of appeals in the absence of a regular member if the regular member will be unable to attend one or more meetings. 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. The alternate having been appointed shall serve in the case until a final decision has been made. While serving, the alternate member shall have the same voting rights as a regular member of the zoning board of appeals.

C.

Terms of appointment: Appointments shall be for a period of one, two, and three years, respectfully, so as nearly as may be to provide for appointment at an equal number each year, thereafter, each member to hold office for the full three-year term; provided, however, that the terms of members serving because of their membership on the planning commission or city council shall be limited to the time they are members of those bodies.

D.

Reappointment: Members may be reappointed.

E.

Membership restrictions: An elected officer of the city shall not serve as chairperson of the zoning board of appeals. An employee of the city may not serve as a member of the board.

F.

Removal: Members of the board of appeals shall be removable by the city council for nonfeasance, malfeasance, and misfeasance of office.

G.

Conflict of interest: A member shall disqualify himself or herself from a vote in which the member has a conflict of interest. Failure to do so shall constitute misconduct in office. A member of the zoning board of appeals who is also a member of the planning commission or the city council shall not participate in a public hearing on or vote on the same matter that the member voted on as a member of the planning commission or the city council. However, the member may consider and vote on other unrelated matters involving the same property.

H.

Compensation: The compensation of the appointed members of the zoning board of appeals may be fixed by the city council.

(Ord. No. 401, § 7, 5-11-09, eff. 6-15-09; Ord. No. 440, §§ 1, 10, 6-10-19)

A.

Rules of procedure: The zoning board of appeals may adopt rules of procedure for the conduct of its meetings and the implementation of its duties. The board shall annually elect a chairperson, a vice-chairperson, and a secretary.

B.

Meetings and quorum: Meetings of the zoning board of appeals shall be held at the call of the chairperson and at such other times as the board in its rules of procedure may specify. The zoning board of appeals shall not conduct business unless a majority of the regular members of the zoning board of appeals are present.

C.

Oaths and witnesses: The chairperson shall have the power to subpoena, administer oaths, compel the attendance of witnesses, compel testimony and the production of books, papers, files and other evidence pertinent to the matters before it.

D.

Records: The minutes of all meetings shall contain the grounds for every determination made by the board and the final ruling on each case. The zoning board of appeals shall file its minutes in the office of the city clerk.

E.

Fees: The city council may from time to time prescribe and amend by resolution a reasonable schedule of fees to be charged to applicants for appeals to the zoning board of appeals. At the time the notice of appeal is filed said fee shall be paid over to the city treasurer to the credit of the general revenue fund of the city.

(Ord. No. 401, § 8, 5-11-09, eff. 6-15-09; Ord. No. 440, §§ 1, 10, 6-10-19)

The board shall have all jurisdiction and powers granted by the Michigan Zoning Enabling Act (Public Act 110 of 2006), and the following specific jurisdiction and powers:

A.

Appeals: To hear and decide appeals from and review any order, requirements, permit, decision or determination made by the zoning administrator or any other administrative official or body in enforcing the provisions of this ordinance. The board may reverse or affirm, wholly or in part, or may modify the order, requirement, permit, decision or determination as in the board's opinion ought to be made in the premises, and to that end shall have all the powers of the administrative official or body from whom the appeal is taken.

B.

Interpretations: To hear and decide matters referred to it or upon which it is required to pass under this ordinance adopted pursuant to the Michigan Zoning Enabling Act (Public Act 110 of 2006) of the state, or by other articles of this ordinance.

C.

Variances: Where there are practical difficulties or unnecessary hardship in the way of carrying out the strict letter of the article applicable to the matter appealed from, the ZBA shall have power in passing upon appeals to vary or modify any of its rules, regulations or provisions relating to the construction, structural changes in, equipment, or alteration of buildings or structures or the uses of land, buildings or structures, so that the spirit of the particular article shall be preserved, public safety secured and substantial justice done.

D.

Limits of authority: The board shall not have the power to alter or change the zoning district classification of any property.

(Ord. No. 440, §§ 1, 10, 6-10-19)

A.

Filing an appeal: Appeals shall be filed with the zoning administrator. The application shall describe the action taken and specify the grounds for the appeal. The zoning administrator shall forthwith transmit to the board all the papers constituting the record upon which the action appealed from was taken.

B.

Appeal time limit: An appeal shall be filed within such reasonable time as prescribed by the board by general rule. If no general rule has been adopted, an appeal shall be filed within 60 days of the order, requirements or determination of an administrative official or body.

C.

Stay of proceedings: An appeal stays all proceedings in furtherance of the action appealed. The only exception is if the zoning administrator certifies to the board that by reason of facts stated in the certificate, a stay would cause imminent peril to life or property. In which case, proceedings shall not be stayed other than by a restraining order which may be granted by the board or by the circuit court for the county, on application, on notice to the zoning administrator and on due cause shown.

D.

Public hearing: The board shall fix a reasonable time for the hearing of the appeal, and shall be within 60 days of the receipt of the notice of appeal.

Written notice of the public hearing shall be made as follows:

(a)

The notice shall do all of the following:

(1)

Describe the nature of the request.

(2)

Indicate the property that is the subject of the request. The notice shall include a listing of all existing street addresses within the 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. Individual addresses of properties are not required to be listed for an amendment to the zoning ordinance, or the zoning map that affects 11 or more properties or an interpretation by the zoning board of appeals.

(3)

State when and where the request will be considered.

(4)

Indicate when and where written comments will be received concerning the request.

(b)

The notice shall be published and delivered not less than 15 days before the date of the public hearing as follows:

(1)

Notice of the request shall be published in a newspaper of general circulation in the city. This shall be the only notice required for an amendment to the zoning ordinance, or the zoning map that affects 11 or more properties or an interpretation by the zoning board of appeals.

(2)

Where approval is being sought under this ordinance for an individual property or a rezoning affecting ten or fewer properties, notice shall also be sent by mail or personal delivery to the owners of property for which approval is being considered.

(3)

In addition to paragraph (2) above, notice shall be sent to all persons to whom real property is assessed within 300 feet of the property and to the occupants of all structures within 300 feet of the property regardless of whether the property or occupant is located in the zoning jurisdiction. If the name of the occupant is not known, the term "occupant" may be used in making notification under this subsection.

(Ord. No. 440, §§ 1, 10, 6-10-19)

The board of appeals shall hear and decide upon request to:

A.

Interpret provisions: Interpret the provisions of this ordinance when it is alleged that certain provisions are not clear or that they could have more than one meaning. In deciding upon such request the zoning board of appeals shall ensure that its interpretation is consistent with the intent and purpose of the ordinance and the article in which the language in question is contained.

B.

Determine zoning district boundaries: Determine the precise location of the boundary lines between zoning districts, overlay districts, and flood hazard area boundaries (see Article 16) when there is dissatisfaction with a decision made by the zoning administrator.

(Ord. No. 440, §§ 1, 10, 6-10-19)

The board shall prescribe appropriate conditions and safeguards to carry out the requirements of this subsection and shall not grant any variance unless it shall have made a finding of fact based upon the evidence as presented to it in each specific case as specified below:

A.

Area or dimensional variance: The board may grant an area or dimensional variance only upon a finding that practical difficulties exist. An area or dimensional variance is a variance from any dimensional standard or requirement of this ordinance, such as, but not limited to, a deviation from lot width, lot size, density, building and sign height, building and sign bulk, building and sign setback, and other standards and requirements. A finding of practical difficulties shall require demonstration by the applicant of all of the following:

1.

Strict compliance with restrictions governing area, setback, frontage, height, bulk, density or other "non-use" matters that will unreasonably prevent the owner from using the property for a permitted purpose or will be unnecessarily burdensome. The variance will do substantial justice to the applicant, as well as to other property owners.

2.

A lesser variance than that requested will not give substantial relief to the applicant and/or be consistent with justice to other property owners.

3.

The need for the variance is due to unique circumstances or conditions peculiar to the property and not generally applicable in the area or to other properties in the same zoning district such as exceptional narrowness, shallowness, shape, topography or area.

4.

The problem and resulting need for the variance has not been self-created by the applicant and/or the applicant's predecessor; this may or may not be considered depending upon whether the practical difficulty would have existed regardless of the action.

5.

The variance will not alter the essential character of the area. In determining whether the effect the variance will have on the character of the area, the established type and pattern of land uses in the area and the natural characteristics of the site and surrounding area will be considered.

6.

The granting of the variance will not materially impair the intent and purpose of this ordinance.

7.

Other specific variance criteria as set forth elsewhere in this ordinance including but not limited to section 16.12, Flood hazard area zoning variances.

B.

Use variance: The zoning board of appeals may grant a use variance only upon a finding that an unnecessary hardship exists that prevents use of the property as currently zoned. A use variance is a variance that permits a use that is otherwise not provided for in a zoning district. A finding of an unnecessary hardship shall require demonstration by the applicant of all of the following:

1.

The applicant has demonstrated that the site cannot reasonably be used for any of the uses allowed within the current zoning district designation. The zoning board of appeals may require submission of documentation from real estate or market experts, or a certified appraiser, to substantiate this finding.

2.

The need for the variance is due to unique circumstances peculiar to the property and not generally applicable in the area or to other properties in the same zoning district. The applicant must prove that there are certain features or conditions of the land that are not generally applicable throughout the zone and that these features make it impossible to earn a reasonable return. In those situations where the difficulty is shared by others, the zoning board of appeals may find that relief should be accomplished by an amendment to the zoning ordinance, not a variance.

3.

The problem and resulting need for the variance has not been self-created by any action of the applicant or the applicant's immediate predecessor.

4.

The capacity and operations of public roads, utilities, other facilities and services will not be significantly compromised.

5.

The use variance will not alter the essential character of the neighborhood nor be of detriment to adjacent properties.

(Ord. No. 440, §§ 1, 10, 6-10-19)

A.

Matters coming before the board of appeals shall be decided no later than 30 days after the hearing on such matter is closed.

B.

The decision of the board shall be final upon the earlier of:

1.

Issuance of a written decision signed by the chairperson of the board; or

2.

Approval of the minutes of the meeting at which the decision was made.

C.

In its decisions, the board shall state a finding of facts underlying its decisions.

D.

Area or dimensional variance votes: A concurring vote of a majority of the members of the board shall be required to reverse an order, requirements, decisions, or determination of an administrative official or body, or to decide in favor of the applicant, a matter upon which the board is required to pass under this ordinance.

E.

Use variance votes: A concurring vote of two-thirds of the members of the board shall be necessary to grant a variance from uses of land permitted in this ordinance.

F.

Decisions of the ZBA may be appealed to the appropriate court on the record and for that reason the board shall cause a record to be made of its proceedings.

(Ord. No. 440, §§ 1, 10, 6-10-19)

A.

No order of the zoning board of appeals permitting the erection or alteration of buildings shall be valid for a period longer than one year, unless a building permit for such erection or alteration is obtained within such period and such erection or alteration is commenced and proceeds to a completion in accordance with the terms of such permit.

B.

No order of the zoning board of appeals permitting a use of a building or premises shall be valid for a period longer than one year unless such use is established within such period; provided, however, that if the use of such permit is dependent upon the erection or alteration of a building, such order shall continue in full force and effect if a building permit for such use, erection or alteration is obtained within such period and such erection or alteration is commenced and proceeds to completion in accordance with the terms of such permit.

(Ord. No. 440, §§ 1, 10, 6-10-19)