(a)

Established. There is hereby established a zoning board appeals (ZBA) which shall perform its duties and exercise its powers as provided in the Michigan zoning enabling act, Public Act No. 110 of 2006 (MCL 125.3101 et seq.), in such a way that the objectives of this ordinance shall be observed, public safety secured, and substantial justice done.

(b)

Membership and terms.

(1)

Membership. The ZBA shall consist of five members appointed by the city council, one of whom shall be a member of the planning commission, and two alternate members.

(2)

Terms. Members shall be appointed for a term of three years, except that the terms for the planning commission or city council members shall be the same as that for their office. All vacancies for unexpired terms shall be filled for the remainder of the term.

(3)

Alternates. The city council shall appoint two alternate members to serve on the ZBA, appointed by the city council to serve a three-year term. The alternate member shall:

a.

Sit as regular members of the ZBA in the absence of a regular member or for the purpose of reaching a decision on a case in which the regular member has abstained for reasons of conflict of interest.

b.

Once an alternate has been called to serve in a particular case, they shall continue to participate in that case until a decision has been rendered.

(4)

Removal. Members of the ZBA or alternates shall be removable by the city council for nonperformance of duty or misconduct in office, upon filing of written charges and after public hearing.

(5)

Conflict of interest. A member shall disqualify themselves from a vote in which the member has a conflict of interest. Failure of a member to disqualify themselves from a vote in which the member has a conflict of interest constitutes malfeasance in office. Any planning commission or city council member on the ZBA shall abstain from any vote on an issue which they have previously voted upon as a member of the planning commission or city council.

(Ord. No. 09-434, § 26.01, 1-20-2009)

(a)

The ZBA shall establish rules and procedures in accordance with the provisions of this ordinance, and the applicable state law.

(b)

All meetings of the ZBA shall be held at the call of the chairperson, and at such times as the ZBA may determine.

(c)

The ZBA shall not conduct business unless a majority of its members are present.

(d)

All meetings conducted by the ZBA shall be open to the public, except those authorized to be conducted in closed sessions pursuant to the open meetings act, Public Act No. 267 of 1976 (MCL 15.261 et seq.). The public shall be afforded an opportunity to speak at any public hearing in accordance with the rules of procedure and bylaws of the ZBA.

(e)

The ZBA shall keep a record of its proceedings showing the vote of each member upon each question or, if absent or failing to vote, indicating said fact and shall file a record of its proceedings in the office of the city clerk and shall be public record.

(f)

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

(g)

Applications submitted to the ZBA shall consist of the following, as applicable:

(1)

A signed and dated application form, as provided by the city.

(2)

A scaled drawing with sufficient detail to indicate the nature and necessity of the request.

(3)

Payment of a fee, as may be prescribed from time to time by the city council, by resolution.

(4)

The city or ZBA, in furtherance of decisions related to the application, may request other materials deemed necessary, including but not limited to, traffic impact studies, market studies or environmental assessments.

(Ord. No. 09-434, § 26.02, 1-20-2009)

The ZBA shall have jurisdiction and powers granted by the zoning act, jurisdiction and powers prescribed in other articles of this ordinance and the following specific jurisdiction and powers:

(a)

Powers.

(1)

The ZBA shall not have the power to alter or change the zoning district classification of any property, nor to make any change in the terms of this ordinance.

(2)

The decision of the ZBA shall be final. However, a person having an interest affected by this ordinance may appeal to the circuit court for review pursuant to the zoning act.

(3)

In granting a variance the ZBA may attach thereto such conditions regarding the location, character, and other features of the proposed uses as it may deem reasonable in furtherance of the purpose of this ordinance.

(b)

Appeals of administrative decisions.

(1)

ZBA to hear appeals. The ZBA shall 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 any administrative official or body in enforcing any provision of this ordinance. Appeals may be taken by a person aggrieved or by an officer, department, board or bureau of the state or city. In order to be aggrieved by a decision of the city, the person or other entity making the appeal must have a property interest and sufficient standing as recognized under the law to challenge the decision.

(2)

Filing and hearing of appeal.

a.

Appeals shall be filed within 30 days of the action being appealed.

b.

The development services department and any person from whom the appeal is taken shall transmit to the ZBA all of the documents and records related to the appeal.

c.

The ZBA shall fix a reasonable time for the hearing of the appeal and shall provide notice as required by section 25.09, public hearings.

d.

The applicant, or their duly authorized agent, must appear in person at the hearing in order for the ZBA to take action. Failure to appear may result in tabling or denial of the application.

(3)

Decisions on appeal.

a.

An appeal to an administrative decision may be reversed by the ZBA only if it finds that the action or decision appealed meets one or more of the following requirements:

1.

Was arbitrary or capricious.

2.

Was based on an erroneous finding of a material fact.

3.

Constituted an abuse of discretion.

4.

Was based on erroneous interpretation of the zoning ordinance or zoning law.

b.

If a determination is made that the administrative official or body making the decision did so improperly, the Board may reverse or affirm, wholly or partly, or may modify, the order, requirement, decision or determination appealed from, and may make an order, requirement, decision or determination as ought to be made, and to that end shall have all the powers of the administrative official or body from whom the appeal was taken.

(c)

Interpretation. Upon request of the planning commission, city council, development services department, or applicant the ZBA may interpret and clarify the meaning of ordinance text. The ZBA may also be requested to interpret boundaries of zoning districts where the zoning district classification can not be clearly discerned on the zoning map or as described in section 2.03, district boundaries interpreted.

(d)

Special land uses and planned unit developments (PUDs).

(1)

The ZBA may grant dimensional or other site plan related variances for special land uses; however, the ZBA shall not have the power to reverse or modify the planning commission's decision to approve or deny a special land use permit nor grant variances to any conditions placed on special land use approval.

(2)

The ZBA shall not have the authority to grant variances to the PUD regulations of article 22, planned unit developments (PUDs), or any requirements placed on PUD approval. However, the ZBA shall have the authority to hear and decide appeal requests by individual lot owners for variances from other sections of this ordinance following final approval of the PUD, provided such variances do not affect the terms or conditions of the original PUD approval or constitute a variance to the PUD regulations of article 22, planned unit developments (PUDs).

(e)

Approvals. To hear and decide requests for other decisions that this ordinance specifically authorizes the ZBA to pass.

(f)

Dimensional variances.

(1)

The ZBA, after holding a public hearing in accordance with section 25.09, public hearings, shall have the power to grant requests for dimensional variances from the provisions of this ordinance where it is proved by the applicant that there are practical difficulties in the way of carrying out the strict letter of this ordinance relating to the construction, equipment, or alteration of buildings or structures, or of stormwater management requirements so that the spirit of this ordinance shall be observed, public safety secured and substantial justice done.

(2)

A dimensional variance may be allowed by the ZBA only in cases where the applicant has shown a practical difficulty in the official record of the hearing. The applicant must prove that all of the following conditions have been met:

a.

Extraordinary circumstances. There are exceptional or extraordinary circumstances or conditions applying to the property in question that do not apply generally to other properties in the same zoning district. Exceptional or extraordinary circumstances or conditions may include:

1.

Exceptional narrowness, shallowness or shape of a specific property on the effective date of this ordinance.

2.

By reason of exceptional topographic conditions or other extraordinary situation on the land, building or structure.

3.

By reason of the use or development of the property immediately adjoining the property in question; whereby the literal enforcement of the requirements of this ordinance would involve practical difficulties.

b.

Substantial justice. Compliance with the strict letter of the restrictions governing area, setbacks, frontage, height, bulk, density or other dimensional provisions would unreasonably prevent the use of the property. Granting of a requested variance or appeal would do substantial justice to the applicant as well as to other property owners in the district and such 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. Any variance granted shall be the minimum necessary to allow the preservation of these substantial property rights. The possibility of increased financial return shall not of itself be deemed sufficient to warrant a variance.

c.

Impact on surrounding neighborhood. The variance will not be detrimental to adjacent property and the surrounding neighborhood or interfere with or discourage the appropriate development, continued use, or value of adjacent properties and the surrounding neighborhood as compared to other uses in the neighborhood.

d.

Public safety and welfare. The granting of the 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, comfort, morals or welfare of the inhabitants of the city.

e.

Not self-created. The immediate practical difficulty causing the need for the variance request was not self-created by the applicant.

(g)

Use variances.

(1)

Application requirements. In addition to the information required for other variance requests, an application for a use variance shall include a plan drawn to scale detailing the specific use and improvements proposed by the applicant, and a summary of the facts which support each of the following conclusions:

a.

Applicant's property cannot be used for the purposes permitted in the zoning district;

b.

Applicant's plight is due to unique circumstances peculiar to his property and not to general neighborhood conditions;

c.

Applicant's suggested use would not alter the essential character of the area;

d.

Applicant's problem has not been self-created;

e.

Unavailability of administrative relief which may afford reasonable use of applicant's property;

f.

At the end of each statement in subsections (g)(1)a through e above, identify all persons who will testify at the hearing with respect to each of the facts and, separately, identify all persons who will testify at the hearing relative to the respective conclusion (and if any person is to be offered as an expert witness, include with the application a resume which shows the education and experience of such person within the particular area of expertise).

(2)

Use variance, prehearing conference.

a.

Prior to the scheduling of a hearing, the applicant shall contact the development services department for the purpose of scheduling a prehearing conference.

b.

The purposes of the pre-hearing conference shall be to:

1.

Review the procedure for the hearing and identify all persons who will testify (directly or through affidavit) and the evidence to be offered on behalf of the applicant;

2.

Attempt to secure a statement of agreed-upon facts to be used to narrow the matters of dispute and shorten the hearing;

3.

Explore a means of providing relief to the applicant by way of nonuse variance from the ZBA, or other relief which may require action by persons or bodies other than the ZBA which will afford an adequate remedy for the applicant;

4.

Discuss the need, desirability, and the terms of providing a verbatim record of the hearing.

c.

The development services department shall determine who should be present at the prehearing conference based upon the application submitted, and taking into consideration the discussion with the applicant or the applicant's representative.

d.

The prehearing conference shall be scheduled and conducted on an expeditious basis so as to avoid unreasonable delay to the applicant. Sufficient time shall be taken, however, to achieve the purposes of the pre-hearing conference stated above.

(3)

Use variance, hearing procedure.

a.

The applicant will have the burden of proof. In order to be entitled to relief, the applicant must demonstrate each of the five factors in subsection (g)(5) of this section.

b.

Manner of presentation.

1.

Community representatives shall present an overview of the zoning regulations involved. This may include an indication of the objectives sought to be achieved in the zoning district, and any planning, engineering, financial, environmental or other considerations which are generally relevant within the zoning district and/or in the general area of the property at issue.

2.

The applicant may present witnesses, including the applicant, or may submit affidavits, for the purpose of attempting to prove facts or conclusions. The applicant shall be provided with the opportunity to present all testimony and evidence proposed to be presented at the pre-hearing conference, either through witnesses or affidavits; however, the chairperson of the ZBA may restrict testimony and evidence which would result in unreasonable duplication. In addition, by motion made on its own or at the request of a person at the hearing, the ZBA may require the presence of any witness who has offered either testimony by affidavit on a material question of fact or testimony of an expert nature, with the view of permitting members of the ZBA to ask questions of such witnesses.

3.

At the conclusion of the applicant's presentation, interested persons attending the hearing shall be provided with the opportunity to present testimony and evidence in the same manner and subject to requiring the presence and questioning of witnesses, as provided above for the applicant.

c.

When interested persons have completed their presentations, at the same meeting and/or at an adjourned meeting date, testimony and evidence may be presented on behalf of the community in the same manner, and subject to requiring the presence and questioning of witnesses, as provided above for the applicant. The purpose of such presentation shall be to ensure that a full picture, including all relevant information, is before the ZBA for consideration as it relates to the specific application presented.

d.

If testimony or evidence has been offered by or on behalf of interested persons and/or the community, the applicant shall have the opportunity to make a responsive presentation, restricted to answering the points raised by interested persons and community representatives. The manner of presenting witnesses, and requirement of their presence and questioning, shall be the same as provided above for the applicant's principal case.

e.

At the hearing, the ZBA may determine to establish other rules of procedure, such as meeting hours on any given day, procedure for presentations by interested persons and/or on behalf of the community, or other rules found to be necessary or appropriate by the board. When questions of procedure arise during the hearing, the chairperson of the ZBA may solicit the recommendation of the representatives of both the applicant and the community.

f.

If a hearing is not completed at a given meeting within the time period allowed by the ZBA, the board shall adjourn the hearing to a date certain for continuation.

(4)

Use variance, decision of the zoning board of appeals.

a.

The ZBA may deem it appropriate in any given case to provide an opportunity for anyone presenting testimony or evidence to submit proposed findings of fact and conclusions.

b.

At the conclusion of the hearing, the ZBA may make its decision at that meeting, or it may adjourn the hearing to a new date for the purpose of reviewing the testimony and evidence, and reviewing proposed findings and conclusions submitted by hearing participants, in preparation for making its decision.

c.

If the ZBA determines to grant variance relief, it shall be the minimum relief required to allow reasonable use of the property, while maintaining the essential character of the area. Such relief may be in the form of one or more nonuse variances and/or in the form of a use variance. The motion may include conditions that are authorized by law.

d.

If the ZBA adopts a motion to grant variance relief, such motion may be made as a tentative grant of relief, subject to review by the planning commission, planning director/consultant, engineer or other person or official with expertise, with a view of obtaining recommendations on any conditions that may be relevant and authorized by law, and for the further purpose of ensuring that the grant of relief would not violate applicable law. If such a tentative grant of relief is approved, the ZBA shall request the completion of all reviews by other boards or persons by a specific date, so that relief may be expeditiously finalized.

(5)

Use variance standards for review. A use variance may be allowed by the ZBA only in cases where the applicant has shown a unnecessary hardship in the official record of the hearing. The applicant must prove that all of the following conditions have been met:

a.

Hardship. The applicant has demonstrated that the site cannot reasonably be used for any of the uses allowed within the current zoning district designation. The ZBA may require submission of documentation from professionals or certified experts to substantiate this finding.

b.

Unique circumstances. That the condition or situation of the specific parcel of property or the intended use of such property for which the variance is sought is unique to that property and not commonly present in the general vicinity or in the zone 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 without some adjustment. Such unique conditions or situations include:

1.

Exceptional narrowness, shallowness or shape of a specific property on the effective date of the ordinance from which this chapter is derived.

2.

Exceptional topographic conditions or other extraordinary situation on the land, building or structure.

3.

The use or development of the property immediately adjoining the property in question.

4.

Any other physical situation on the land, building or structure deemed by the ZBA to be extraordinary.

c.

Character of neighborhood. The use variance will not alter the essential character of the neighborhood or the intent of the comprehensive development plan, or be a detriment to adjacent properties.

d.

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

e.

Not self-created. The immediate practical difficulty causing the need for the variance request was not self-created by the applicant.

(h)

Sign variance. Any party who has been refused a sign permit for a proposed sign may file an appeal with the ZBA. In determining whether a variance is appropriate, the ZBA shall study the sign proposal, giving consideration to any extraordinary circumstances, such as those listed below, that would cause practical difficulty in complying with the sign standards.

(1)

Permitted signage could not be easily seen bypassing motorists due to the configuration of existing buildings, trees, or other obstructions.

(2)

Permitted signage could not be seen bypassing motorists in sufficient time to permit safe deceleration and exit.

(3)

Existing signs on nearby parcels would substantially reduce the visibility or advertising impact of a conforming sign on the subject parcel.

(4)

Construction of a conforming sign would require removal or severe alteration to natural features on the parcel, such as removal of trees, alteration of the natural topography, filling of wetlands or obstruction of a natural drainage course.

(5)

Construction of a conforming sign would obstruct the vision of motorists or otherwise endanger the health or safety of passersby.

(6)

Variance from certain sign regulations would be offset by increased building setback, increased landscaping or other such enhancements, so that the net effect is an improvement in appearance of the parcel, compared to the result that would be otherwise achieved with construction of a conforming sign.

(7)

A sign which exceeds the permitted height or area standards of this ordinance would be more appropriate in scale because of the large setback of the building.

(Ord. No. 09-434, § 26.03, 1-20-2009)

(a)

Voting. A concurring vote of a majority of the members of the ZBA shall be required to decide any appeal, interpretation, variance or other ZBA decision.

(b)

Conditions. In authorizing an action within its authority, the ZBA may attach any conditions deemed necessary, provided any conditions comply with all of the following standards:

(1)

Be designed to protect natural resources, the health, safety and welfare, as well as the social and economic well-being of those who will use the land use or activity under consideration, residents and landowners immediately adjacent to the proposed land use or activity and the community as a whole.

(2)

Be related to the valid exercise of the police power and purposes which are affected by the proposed activity.

(3)

Be necessary to meet the intent and purpose of the zoning regulations; be related to the standards established in this ordinance for the land use or activity under consideration; and be necessary to ensure compliance with those standards.

(c)

Approval period.

(1)

Approval of a dimensional variance by the ZBA shall be valid for a period not longer than 18 months, unless a building permit for the construction or alteration is obtained and construction or alteration is started and proceeds to completion in accordance with the terms of the permit and the requirements of the ZBA.

(2)

Any variance may be revoked and declared invalid, following notice and a public hearing, if any of the requirements of this ordinance or conditions attached to a variance by the ZBA are not complied with.

(d)

One year to rehear decision. When any application made under the provisions of this ordinance has been denied by the ZBA, not less than one year must intervene before a new application of the same tenor, and relating to the same property or proposed use, may be accepted or acted upon by the development services department or by any other city employee or authority, unless a positive finding is made by the development services department that the facts of the case have substantially changed since its previous consideration.

(e)

Reconsideration. The ZBA shall have the authority to rehear a prior decision on its own motion in instances where new information is presented that could change the findings of fact used to reach the original decision. Where the ZBA passes a motion to reconsider a decision based upon the new information provided, it shall set a new public hearing, noticed in the same manner as required for the original hearing.

(Ord. No. 09-434, § 26.04, 1-20-2009)