Whenever any provision of this ordinance imposes more stringent requirements, regulations, restrictions or limitations than are imposed or required by the provisions of any other law or ordinance, then the provisions of this ordinance shall govern. Whenever the provisions of any other law or ordinance impose more stringent requirements than are imposed or required by this ordinance, then the provisions of such law or ordinance shall govern.

State Law reference— Conflicts, MCL 125.586.

1.

Scope. No building or structure, or part thereof, shall hereafter be erected, constructed, used, reconstructed, altered or maintained, and no lot or land, or part thereof, shall hereafter be used or maintained and no new use made of any building, structure or land, or part thereof, except in conformity with the provisions of this ordinance.

2.

Unlawful building. In case any building, or part thereof, is used, erected, occupied or altered contrary to law or the provisions of this ordinance, such building shall be deemed an unlawful structure and a nuisance and may be required to be vacated, torn down or abated by any legal means, and shall not be used or occupied until it has been made to conform to the provisions of this ordinance. Public expenditures toward abating such nuisance shall become a lien upon the land.

3.

Temporary building. No temporary building shall be erected unless a valid building permit exists for a permanent building or a new use of land on the same site. Any temporary building shall be removed from the site within 30 days of issuance of a certificate of occupancy. The approval of a temporary building may not exceed one year; however, the city council, acting as the zoning board of appeals, may grant multiple extensions up to three months each for good cause shown, when the approval is due to expire.

4.

Building occupancy. No basement shall be used or occupied as a dwelling unit at any time, nor shall a dwelling be erected in a nonresidential district, except for the living quarters of a watchman, caretaker, or resident manager.

5.

Frontage on a public street. No building shall be erected on a lot unless said lot fronts no less than 80 percent its full width, as required by section 1300, upon a street or road that has been dedicated to the public. Multi-family developments, or commercial, office, or industrial centers need not front each such structure within the development upon publicly dedicated streets or roads, provided that adequate interior vehicular circulation and access can be ensured in a site plan submitted for approval to the city.

6.

One lot, one building. In all districts, only one principal building shall be placed on a single lot of record, except as provided by section 1401.5 above.

Cross reference— Buildings and building regulations, ch. 10.

1.

Residential zones. In residential zones, after 25 percent of the lots and frontage on the side of the street on any block where the proposed improvement is contemplated have been improved by the erection on the residences thereon, if one-half or more of the residences built in any such block are of a certain type and style, the remainder of the residences built in any such block and to be constructed, altered, relocated, or repaired in such block shall be of a substantially similar type and style so that new or altered buildings will be in harmony with the character of the neighborhood. Nothing herein shall prevent the upgrading of any residential block by installing an exterior finish having fire or weather resistance, which is greater than the minimum herein required, or by constructing in such block a residence having floor area greater than the average area of residences in such block; provided, however, such type and style shall be such as not to impair or destroy property values in the block. (See also section 1414.)

2.

Nonresidential zones. In any case where a building or accessory building in a nonresidential district is erected or placed within 200 feet of the front lot line of any parcel of land fronting upon any public street, the front walls of said building or accessory building within said distance of 200 feet shall be constructed of stone, face brick or other ornamental materials approved by the planning commission consistent with neighboring property, and no building so situated shall be constructed of tarred paper, tin, corrugated iron, or any form of pressed board or felt or similar material within the limits herein specified, nor shall any occupant of such premises be permitted to place open stock, scrap, or junk piles within said 200 feet unless the same shall be obscured from view from the street by the existence of a building, solid wall, earth berm, or evergreen screen sufficient to properly obscure the same from view from the street.

3.

Building completion period. All structures shall be completed within one year of the issue date of the building permit for such structure, unless an extension for not more than one additional year is granted for good cause by the building official. When a part of the building is ready for occupancy, a temporary occupancy permit may be issued, provided that the premises complies with health and fire standards required under this ordinance, or any other ordinance, regulation, or statute.

4.

Personal construction authority. Nothing in this ordinance shall be construed as prohibiting an owner, tenant, occupant, or land contract vendee from doing his or her own building, altering, plumbing, electrical installations, etc., provided the minimum requirements of the Electrical and Plumbing Codes of the State of Michigan, and the applicable county health department regulations are complied with.

Cross reference— Buildings and building regulations, ch. 10.

1.

Intent. It is the intent of this ordinance to permit existing, legal nonconforming lots, structures, or uses to continue until they are removed but not to encourage their survival.

It is recognized that there exists within the districts established by this ordinance and subsequent amendments, lots, structures, and use of land and structures which were lawful before this ordinance was passed or amended which would be prohibited, regulated, or restricted under the terms of this ordinance or future amendments.

Such uses are declared by this ordinance to be incompatible with permitted uses in the districts involved. It is further the intent of this ordinance that nonconformities shall not be enlarged upon, expanded or extended, nor be used as grounds for adding other structures or uses prohibited elsewhere in the same district.

A nonconforming use of a structure, a nonconforming use of land, or a nonconforming use of a structure and land shall not be extended or enlarged after passage of this ordinance by attachment on a building or premises of additional signs intended to be seen from off the premises, or by the addition of other uses of a nature which would be prohibited generally in the district involved.

To avoid undue hardship, nothing in this ordinance shall be deemed to require a change in the plans, construction or designated use of any building on which actual construction was lawfully begun prior to the effective date of adoption or amendment of this ordinance and upon which actual building construction has been diligently carried on. 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 rebuilding, such demolition or removal shall be deemed to be actual construction, provided that work shall be diligently carried on until completion of the building involved.

2.

Nonconforming lots. In any single-family district, notwithstanding limitations imposed by other provisions of this ordinance, a single-family dwelling and customary accessory buildings may be erected on any single lot of record which is under separate and distinct ownership from adjacent lots at the effective date of adoption or amendment of this ordinance. This provision shall apply even though such lot fails to meet the requirements for area or width, or both, that are generally applicable in the district; provided that yard dimensions and other requirements not involving area or width or both, of the lot shall conform to the regulations for the district in which such lot is located. Yard requirement variances may be obtained through approval of the board of appeals.

3.

Nonconforming uses of land. Where, at the effective date of adoption or amendment of this ordinance, lawful use of land exists that is made no longer permissible under the terms of this ordinance as enacted or amended, such use may be continued, so long as it remains otherwise lawful, subject to the following provisions:

a.

No such nonconforming use shall be enlarged or increased, nor extended to occupy a greater area of land than was occupied at the effective date of adoption or amendment of this ordinance.

b.

No such nonconforming use shall be moved in whole or in part to any other portion of the lot or parcel occupied by such use at the effective date of adoption or amendment of this ordinance.

c.

If such nonconforming use of land ceases for any reason for a period of more than 30 days, any subsequent use of such land shall conform to the regulations specified by this ordinance for this district in which such land is located.

4.

Nonconforming structures. Where a lawful structure exists at the effective date of adoption or amendment of this ordinance that could not be built under the terms of this ordinance by reason of restrictions on area, lot coverage, height, yards, or other characteristics of the structure or its location on the lot, such structure may be continued so long as it remains otherwise lawful, subject to the following provisions:

a.

No such structure may be enlarged or altered in a way which increases its nonconformity. For example, existing residences on lots of a width less than required herein may add a rear porch provided that other requirements relative to yard space and land coverage are met.

b.

Should such structure be destroyed by any means to an extent of more than 50 percent of its replacement cost, exclusive of the foundation at the time of destruction, it shall not be reconstructed except in conformity with the provisions of this ordinance.

c.

Should such structure be moved for any reason for any distance whatever, it shall thereafter conform to the regulations for this district in which it is located after it is removed.

5.

Nonconforming uses of structures and land. If a lawful use of a structure, or of structure and land in combination exists at the effective date of adoption or amendment of this ordinance, that would not be allowed in the district under the terms of this ordinance, the lawful use may be continued so long as it remains otherwise lawful, subject to the following provisions:

a.

No existing structure devoted to a use not permitted by this ordinance in the district in which it is located shall be enlarged, extended, constructed, reconstructed, moved or structurally altered except in changing the use of the structure to a use permitted in the district in which it is located.

b.

Any nonconforming use may be extended throughout any parts of a building which were manifestly arranged or designed for such use, and which existed at the time of adoption or amendment of this ordinance, but no such use shall be extended to occupy any land outside such building.

c.

If no structural alterations are made, any nonconforming use of a structure, or structure and land in combination, may be changed to another nonconforming use of the same or more restricted classification provided that the board of Appeals, either by general rule or by making findings in the specific case, shall find that the proposed use is equally appropriate or more appropriate to the district than the existing nonconforming use. In permitting such change, the board of appeals may require conditions and safeguards in accord with the purpose and intent of this ordinance. Where a nonconforming use of a structure, land, or structure and land in combination is hereafter changed to a more conforming use, it shall not thereafter be changed to a less conforming use.

d.

Any structure, or structure and land in combination, in or on which a nonconforming use is superseded by a permitted use, shall thereafter conform to the regulations for the district in which such structure is located, and the nonconforming use may not thereafter be resumed.

e.

When a nonconforming use of structure, or structure and premises in combination, is discontinued or ceases to exist for six consecutive months or 18 months during any three year period, the structure, or structure and premises in combination, shall not thereafter be used except in conformance with the regulations of the district in which it is located. Structures occupied by seasonal uses (one season out of each year) shall be excepted from this provision.

f.

Where nonconforming use status applies to a structure and premises in combination, removal or destruction of the structure shall eliminate the nonconforming status of the land.

6.

Repairs and maintenance. On any building devoted in whole or in part to any nonconforming use, work may be done in any period of 12 consecutive months on ordinary repairs, or on repair or replacement of nonbearing walls, fixtures, wiring or plumbing to an extent not exceeding 50 percent of the assessed value of the building provided that the cubic content of the building as it existed at the time of passage or amendment of this ordinance shall not be increased.

Nothing in this ordinance shall be deemed to prevent the strengthening or restoring to a safe condition of any building or part thereof declared to be unsafe by any official charged with protecting the public safety, upon order of such official.

7.

Conditional use interpretation. Any conditional use as provided for in this ordinance shall not be deemed a nonconforming use, but shall, without further action, be deemed a conforming use in such district.

8.

Change of tenancy or ownership. There may be a change of tenancy, ownership, or management of any existing nonconforming uses of land, structures and premises provided there is no change in the nature or character of such nonconforming uses.

9.

Acquisition. The city council may acquire, by purchase, condemnation, or otherwise, private property or an interest in private property for the removal of nonconforming uses. The cost and expense, or a portion thereof, of acquiring the private property may be paid from general funds or assessed to a special district in accordance with the applicable statutory provisions relating to the creation and operation of special assessment districts for public improvements in cities. The elimination of the nonconforming uses and structures in a zoning district is declared to be for a public purpose and for a public use. The city council may institute and prosecute proceedings for condemnation of nonconforming uses and structures under the power of eminent domain in accordance with Act 149 of the Public Acts of 1911, as amended, being sections 213.21 to 213.41 of the Michigan Compiled Laws (MCL 213.21 et seq) or other applicable statute.

Cross reference— Buildings and building regulations, ch. 10.

State Law reference— Nonconformities, MCL 125.583a.

1.

Intent. Typically, various land use activities are provided for in one or more zoning districts. The criteria for such allocations is based upon similarities in the nature of uses and their relationship to other such uses and adjoining development. Zoning districts are also established to coordinate with and provide for the effectuation of the city's long range development plan.

The city does, however, possess various existing specialized structures which have become functionally obsolete for their original purpose and whose redevelopment or conversion in conformance with the city comprehensive development plan would be unnecessarily burdensome. It is therefore, the intent of this section to set forth the basic qualifying criteria, project classification, development standards, and submittal requirements necessary to provide for the adaptive reuse of eligible properties within the city to support the local economic and employment base without adversely affecting the public health, safety, and welfare of the city as a whole.

2.

Qualifying criteria.

a.

The city council shall approve the adaptive reuse of nonresidential buildings and uses. In qualifying a site for adaptive reuse, the city council shall find the following conditions to exist:

(1)

The subject site is zoned in compliance with the city's comprehensive development plan;

(2)

The use can no longer be reasonably continued for its existing purpose by reason of market conditions or operational constraints (i.e., limited site size, floor area deficiencies, parking or loading area, etc.)

(3)

Site redevelopment in accordance with local development codes would be unnecessarily burdensome by reason of ordinance compliance (restrictions on area, lot coverage, height, yards, or other characteristics of the structure or its location on the lot) or cost; and,

(4)

The subject site has frontage on, or direct access to, an improved major or secondary thoroughfare.

b.

The city council may not grant adaptive reuse status to any property whose principal structures are found to be destroyed by any means to the extent of more than 50 percent of its replacement cost. Any subsequent use of such land shall conform to the regulations of the zoning district in which it is located.

3.

Data required.

a.

Application for adaptive reuse project as provided under the provisions of this ordinance shall be made to the city clerk by filing an application form; submitting required data, exhibits, and information; and depositing the required fee as established by resolution of the city council, and as may be amended from time-to-time. No portion of such fee shall be reimbursable to the applicant.

b.

An application shall contain the following:

(1)

Applicant's name, address, and telephone number.

(2)

Address and tax description number of the subject parcel.

(3)

A signed statement that the applicant is the owner of the subject parcel, or is acting as the owner's representative.

(4)

A certified survey drawing of the subject parcel.

(5)

Supporting statements, evidence, data, information and exhibits which address those qualifying criteria four assessing special condition use permit applications outlined in section 2 above.

4.

Public hearing requirements.

a.

Upon receipt of an application for an adaptive reuse project, the planning commission shall hold a public hearing, one notice of which shall be published not less than five nor more than 15 days prior to the public hearing date in a newspaper of general circulation in the city and sent by first class mail to the owners of the property for which an adaptive reuse project is being considered, to the owners of record of all real property and to the occupants of all structures located within 300 feet of the boundaries of the property in question. The notice shall:

(1)

Describe the nature of the adaptive reuse request.

(2)

Adequately describe the property in question.

(3)

State the date, time, and place of the public hearing.

(4)

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

5.

Project classification.

a.

Upon holding a public hearing, the planning commission shall determine whether the qualifying criteria have been met as set forth in paragraph 2 above.

The planning commission shall within 30 days of making such determination forward to the city council its finding and recommendation.

b.

The city council, upon receipt of the finding, may table action for purposes of further study or gaining additional information; deny the application for adaptive reuse upon finding that the criteria have not been met, or approve the application for adaptive reuse upon finding that the qualifying criteria have been met.

c.

If the applicant for adaptive reuse is approved, the city council shall designate the applicant's property as either a class I or class II site.

(1)

Class I sites permit the conversion of institutional or business uses in residential zones. Properties may be redeveloped/converted to offices, multi-family developments, care facilities and similar uses deemed no more objectionable then the forementioned uses.

(2)

Class II sites permit the conversion of industrial uses in residential or commercial zones. Properties may be redeveloped/converted to any class I purpose, business uses, as well as less intensive industrial development in areas zoned for business.

6.

Development standards.

a.

In areas meeting the above criteria, development standards may be modified by the planning commission upon finding adequate evidence that the proposed use:

(1)

Will be compatibly designed, constructed, and maintained with the existing and intended character of the vicinity;

(2)

Will not be hazardous or disturbing to existing or future neighboring uses;

(3)

Will be served adequately by essential public services and facilities or the agencies responsible for the establishment of the proposed use shall be able to adequately provide for such services; and,

(4)

Will not involve uses, activities, processes, materials, equipment, and conditions of operation that will be detrimental to any persons, property, or the general welfare by reason of excessive smoke, fumes, glare, noise, vibration, or odor.

b.

The planning commission may require such additional safeguards as deemed necessary for the protection of the general welfare and for insuring individual property rights and for insuring that the intent and objectives of this ordinance will be observed.

7.

Site plan requirements.

a.

Site plan approval shall be required in accordance with section 1800 of this ordinance and all applicable ordinances.

(1)

The planning commission may, at its discretion, concurrently review the site plan at the time of its review of qualifying criteria.

Accessory buildings or structures, except as otherwise permitted in this ordinance, shall be subject to the following regulations:

1.

Where the accessory building is structurally attached to a main building it shall be subject to, and must conform to, all regulations of this ordinance applicable to the main building.

2.

Accessory buildings and structures shall not be erected in any side yard nor in any front yard.

3.

An accessory building shall not occupy more than 25 percent of a required rear yard.

4.

No detached accessory building shall be located closer than ten feet to any main building nor shall any accessory building or structure it [sic] be located closer than three feet to any side or rear lot line.

5.

Height of accessory buildings:

a.

Detached accessory buildings and structures in residential districts.

(1)

A detached accessory building or structure shall not exceed one story or 15 feet in height.

(2)

The vertical exterior surface of a building, not forming part of the roof, shall not exceed a height of nine feet, measured from grade to the top plate of the wall.

b.

Detached accessory buildings and structures in nonresidential districts.

(1)

Detached accessory buildings or structures in all nonresidential districts may be constructed to equal the permitted maximum building height in said districts, subject to board of zoning appeals review and approval, if the building or structure exceeds one story or 15 feet in height.

6.

When an accessory building is located on a corner lot, the lot line of which is substantially a continuation of the front lot line of the lot to its rear, said building shall not project beyond the front yard setback required on the lot to the rear of such corner lot.

7.

When an accessory building in excess of 150 square feet in any residence, business, or office district is intended for other than the storage of private motor vehicles, the accessory use shall be subject to the approval of the board of zoning appeals.

8.

Household animal enclosures, dog runs, central air conditioning units, heat pumps, and other mechanical system components that could or are likely to produce noise, odors, and other nuisances, shall not be located adjacent to an adjoining property owner's sleeping area where windows and/or doors on the adjacent property would be exposed to the nuisance.

There shall be provided in all districts at the time of erection or enlargement of any main building or structure, automobile off-street parking space with adequate access to all spaces. The number of off-street parking spaces, in conjunction with all land or building uses shall be provided, prior to the issuance of a certificate of occupancy, as hereinafter prescribed.

1.

Off-street parking spaces may be located within a rear yard or within a nonrequired side yard unless otherwise provided in this ordinance. Off-street parking shall not be permitted within a front yard nor with a required side yard setback unless otherwise provided in this ordinance.

2.

Off-street parking shall be on the same lot of the building it is intended to serve, except as may be otherwise provided for by this ordinance.

3.

Required residential off-street parking spaces shall consist of a parking strip, parking bay, driveways, garage, or combination thereof and shall be located on the premises they are intended to serve, and also subject to the provisions of section 1405, accessory buildings and structures for garages.

4.

Minimum required off-street parking spaces shall not be replaced by any other use unless and until equal parking facilities are provided elsewhere.

5.

Off-street parking existing at the effective date of this ordinance, in connection with the operation of an existing building or use, shall not be reduced to an amount less than hereinafter required for a similar new building or new use.

6.

Two or more buildings or uses may collectively provide the required off-street parking in which case the required number of parking spaces shall not be less than the sum of the requirements for the several individual uses computed separately.

7.

In the instance of dual function of off-street parking spaces where operating hours of buildings do not overlap, the board of zoning appeals may grant an exception.

8.

The storage of merchandise, motor vehicles for sale, trucks, or the repair of vehicles is prohibited.

9.

For those uses not specifically mentioned, the requirements for off-street parking facilities shall be in accordance with a use which the planning commission considers is similar in type.

10.

When units or measurements determining the number of required parking spaces result in the requirement of a fractional space, any fraction up to and including one-half shall be disregarded and fractions over one-half shall require one parking space.

11.

For the purpose of computing the number of parking spaces required, the definition of usable floor area shall govern, and be defined as that area used for or intended to be used for the sale of merchandise or services, or for use to serve patrons, clients, or customers. Such floor area which is used or intended to be used principally for the storage or processing of merchandise, hallways, or for utilities or sanitary facilities, shall be excluded from this computation. Measurement of usable floor area shall be the sum of the horizontal areas of the several floors of the building, measured from the interior faces of the exterior walls.

12.

The minimum number of off-street parking spaces by type of use shall be determined in accordance with the following schedule:

13.

Each parking lot that services a building entrance, except single two-family residential or temporary structures, shall have a number of level parking spaces for the physically handicapped as set forth in the following table, and identified by above grade signs as reserved for physically handicapped persons.

Parking spaces for the physically handicapped shall be a minimum of 12 feet wide and must meet all other applicable requirements as to size as set forth in the building code.

Cross reference— Stopping, standing and parking, § 78-111 et seq.

Whenever the off-street parking requirements in section 1406, above require the building of an off-street parking facility, such off-street parking lots shall be laid out, constructed and maintained in accordance with the following standards and regulations.

1.

No parking lot shall be constructed unless and until a permit therefore is issued by the building official. Applications for a permit shall be submitted to the building department in such form as may be determined by the building official and shall be accompanied with two sets of site plans for the development and construction of the parking lot showing that the provisions of this section will be fully complied with.

The entire parking area, including parking spaces and maneuvering lanes, required under this section shall be provided with asphaltic or concrete surfacing in accordance with specifications approved by the municipal engineer. Off-street parking areas shall be drained so as to dispose of all surface water accumulated in the parking area in such a way as to preclude drainage of water onto adjacent property or toward buildings.

2.

Plans for the layout of off-street parking facilities shall be in accordance with the following minimum requirements:

Off-street Parking Layout Requirements

3.

All maneuvering lane widths shall permit one-way traffic movement, except that the 90 degree pattern shall permit two-way movement.

4.

All spaces shall be provided adequate access by means of maneuvering lanes. Backing directly onto a street shall be prohibited.

5.

Adequate ingress and egress to the parking lot by means of clearly limited and defined drives shall be provided for all vehicles. Ingress and egress to a parking lot lying in an area zoned for other than single-family residential use shall not be across land zoned for single-family residential use.

6.

Each entrance and exit to and from any off-street parking lot located in an area zoned for other than single-family residential use shall be at least 25 feet distant from adjacent property located in any single-family residential district.

7.

A wall shall be provided on all sides of the off-street parking area abutting or adjacent to a residential district. The obscuring wall shall not be less than four feet six inches in height measured from the surface of the parking area.

All land between the required obscuring wall and the front property line or street right-of-way line shall be kept free from refuse and debris and shall be landscaped with deciduous shrubs, evergreen material and ornamental trees. The ground area shall be planted and kept in lawn. All such landscaping and planting shall be maintained in a healthy, growing condition, neat and orderly in appearance.

The planning commission, upon application by the property owner of the off-street parking area, may waive or modify the wall requirement by approving either an earth berm or evergreen screen in its place. The planning commission may also waive the wall requirement if in specific cases where cause can be shown that no good purpose would be served by compliance with the requirements of this section.

8.

All lighting used to illuminate any off-street parking area shall be so installed as to be confined within and directed onto the parking area only.

9.

In all cases where a wall extends to an alley which is a means of ingress and egress to an off-street parking area, it shall be permissible to end the wall not more than ten feet from such alley line in order to permit a wider means of access to the parking area.

10.

Parking aisles shall not exceed 300 feet without a break in circulation.

11.

Except for those serving single- and two-family dwellings, all parking lots shall be provided with wheel stops or bumper guards so located that no part of parked vehicles will extend beyond the property line or into required landscaped areas or pedestrian ways.

12.

No parking lot shall have more than one attendant shelter building. All shelter buildings shall conform to setback requirements for structures in the district in which it is located.

Cross reference— Stopping, standing and parking, § 78-111 et seq.

Off-street parking areas shall be landscaped as follows:

1.

In off-street parking areas containing 20 or more parking spaces, an area equal to at least five percent of the total parking area shall be used for interior landscaping. Whenever possible, parking lot landscaping shall be arranged to improve the safety of pedestrian and vehicular traffic, guide traffic movement, and improve the appearance of the parking area, through the even distribution of the landscape effort across the total off-street parking area, rather than to concentrate all effort in one location.

2.

Parking lot landscaping shall be not less than five feet in any single dimension and not less than 150 square feet in any single island area. Not more than two landscaped units of 150 square feet may be combined in plans designed to meet the minimum requirements.

3.

The landscape plan shall designate the sizes, quantities, and types of plant material to be used in parking lot landscaping.

4.

Required landscaping elsewhere on the parcel shall not be counted in meeting the parking lot landscaping requirements.

5.

A minimum of one deciduous tree shall be placated in each landscaped area.

Required parking for a development may be located off site under certain circumstances. Requests for off site parking must meet the following requirements:

1.

Residential uses. Parking facilities accessory to dwelling units shall be located on the same zoning lot as the use served. Spaces accessory to uses other than dwellings (such as churches) may be located on a lot adjacent to or directly across a street or alley from the lot occupied by the use served; but in no case at a distance in excess of 300 feet from such zoning lot.

2.

Nonresidential uses. Parking facilities accessory to nonresidential uses may be located on other than the same zoning lot as the use served (off site). All required parking spaces shall be within 500 feet of such zoning lot. No parking spaces accessory to a use in a business or industrial district shall be located in a residential district, unless authorized by the planning commission.

3.

Agreement required. A written agreement shall be drawn to the satisfaction of the city attorney and executed by all parties concerned assuring the continued availability of the off -site parking facilities for the use they are intended to serve.

The provisions and requirements as set forth in sections 1406 and 1409, above shall apply to all areas within the city except as modified by this section. The city recognizes that special provisions should be considered for the downtown area including the reduction of required parking spaces due to the availability of public parking. To this end:

1.

Portions of the City of Utica shall be contained within areas described as special parking districts as established by the city council with recommendation from the planning commission.

2.

The boundaries of areas classified as special parking districts are hereby established as shown on the zoning map. Where uncertainty exists with respect to the boundaries of the special parking districts as shown on the zoning districts map, the rules as set forth in section 302, shall apply.

3.

The number of off-street parking spaces and the size of loading and unloading areas required for any new use, expanded or intensified use of property located within, or partially within a special parking district shall be determined as set forth in sections 1409 and 1411 except as herein provided for:

a.

Off-street parking. The determination of parking needs within a special parking district shall be based upon the standards specified below. For those uses not specified an adjustment may be made by the city council, following planning commission recommendation, when it is found that a reduction from the standards set forth in section 1406 would not adversely affect the retail, office and ancillary service facilities forming the commercial nucleus of these older core business areas. In this latter regard primary consideration shall be given to uses which are generally the object of special purpose trips and thereby have little or no interrelation with those business activities in the core business areas. The following standards reflect the gross floor area(s) actively used in day-to-day operations and shall exclude only vacant space and storage areas.

(1)

Retail stores except as otherwise specified. One for each 350 square feet of gross floor area.

(2)

Furniture and appliance stores. One for each 1,800 square feet of gross floor area.

(3)

Business and professional offices except as otherwise specified. One for each 500 square feet of gross floor area.

(4)

Medical and dental offices. One for each 175 square feet of gross floor area.

(5)

Banks (excluding drive-in stations). One for each 250 square feet of gross floor area.

(6)

Establishments offering food, beverages, or refreshments for sale and consumption on the premises. One for each 100 square feet of gross floor area.

(7)

Apartments. One for each dwelling unit plus one quarter for each bedroom.

b.

Off-street loading. The planning commission shall have the right to modify or waive the requirement for off-street loading areas as specified in section 1411. Any such modification or waiver shall be based upon a review of a site plan and/or the surrounding area and a determination that there is satisfactory loading space serving the building or that the provision of such loading space is physically and/or functionally impractical to provide.

4.

The owner or owners of the said new or expanded use may make application to the city clerk for the option of paying a dollar amount established by resolution of the city council per required parking space and loading and unloading space in lieu of providing said required spaces as per the provisions and requirements set forth in sections 1406 and 1411, of this ordinance. These monies would be paid in to the special parking district fund established by the city council specifically for the purpose of constructing and improving off-street parking areas to serve uses located within the special parking districts. The timing of parking spaces provided and their location shall be at the sole discretion of the city council.

5.

The amount paid into the parking fund described above shall not apply against any present or future special assessments levied by the city for parking improvements.

6.

This exception may only be granted by the city council. Granting of the exception shall be based upon evidence presented by the property owner or owners showing that the reasonable ability to provide any or all of the required parking spaces and/or loading and unloading areas as required in sections 1406 and 1411, does not exist.

7.

A property owner or owners granted the exception of contributing to the parking fund will not receive an occupancy permit until said monies have been paid into said fund in full.

8.

The provisions of this section also apply to any change in use of property located within a special parking district that would require parking spaces in excess of those required for the previous use.

On the same premises with every building, structure, or part thereof, involving the receipt or distribution of vehicles or materials or merchandise, there shall be provided and maintained on the lot, adequate space for standing, loading, and unloading in order to avoid undue interference with public use of dedicated rights-of-way. Such space shall be provided as follows:

1.

All loading spaces shall be in addition to the off-street parking area access drive, and maneuvering lane requirements.

2.

Off-street loading space shall have a clearance of 14 feet in height.

3.

Off-street loading space may be completely enclosed within a building, or may occupy a portion of the site outside of the building, provided that where any portion of a loading space is open to public view, said space shall be screened in accordance with section 1423, screening walls.

4.

All loading and unloading in the industrial or mixed use districts shall be provided off-street in the rear yard or interior side yard, and shall in no instance be permitted in a front yard. In those instances where exterior side yards have a common relationship with an industrial district across a public thoroughfare, loading and unloading may take place in said exterior side yard when the setback is equal to at least 50 feet.

Cross reference— Traffic and vehicles, ch. 78.

1.

Intent. The regulations set forth in this section are intended to prevent the storage or accumulation of unusable, inoperable, or unsightly motor vehicles, machinery, or building materials that could be hazardous to the safety of children, encourage the propagation of rats or rodents, or detract from the orderly appearance of the city.

2.

General requirements.

a.

Motor vehicle parking and storage. No motor vehicle shall be kept, parked or stored in any district zoned for residential use, unless the vehicle is in operating condition and properly licensed or is kept inside a building. However, these provisions shall not apply to any motor vehicle ordinarily used but temporarily out of running condition for not more than 30 continuous days within a 90-day period. If a motor vehicle is being kept for actual use, but is temporarily unlicensed, the building official may grant the owner a period of up to one month to procure a license.

b.

Machinery and building materials storage. Unusable, rusty, or inoperable machinery, equipment, or machines and/or equipment parts of machines or equipment not intended for use upon the premises, or old and/or used building materials shall not be kept or stored outside of a building. However, the temporary storage of building materials intended to be used to improve the premises may be stored outside if piled off the ground so as not to become a suitable environment for rats or rodents. The temporary storage of building materials to be used for the purpose of new construction shall also be permitted. In no case shall usable or unusable machinery, building materials, or other items be stored on a permanent basis in a truck trailer or other type of trailer, with or without its wheels.

The storage of wood cut for the purpose of being used for fuel in fireplaces and/or wood burning appliances in any residential district shall be limited to one full cord with a cord being defined as cut fuel wood equal to 128 cubic feet in a stack measuring four by four by eight feet. In no case shall cut fuel wood be stacked higher than four feet in height in a residential district.

c.

Commercial vehicle parking and storage. No commercial vehicle may be parked on residential property; upon public property including, but not limited to public streets, right-of-way, and planting areas between sidewalks and curbs; or within any designated off-street parking area, except under the following conditions:

(i)

The parking or storage of any commercial vehicle on private property in any nonresidential district is permitted provided such commercial vehicle is used in conjunction with the principal use or accessory use of the property. In such events, said parking or storage must comply with other codes and ordinances of the city.

(ii)

The temporary parking of any commercial vehicle in any district is permitted provided the vehicle is owned or operated by a contractor performing work in the immediate area, is being loaded/unloaded with merchandise or furnishings for or from a residence, or while an operator is actively engaged in performing a service to the adjacent property for the period of time necessary to complete such service.

(iii)

The occasional parking of commercial vehicles in any district is permitted provided such vehicles are used in response to emergency or on-request service calls.

In no instance shall commercial vehicles so stored or parked be occupied as sleeping quarters.

d.

The open parking or storage of any commercially used or licensed vehicle shall be expressly prohibited from any residential district (single-family and multiple family), including private property, public property, public rights-of-way, parking lots and streets, except for the following:

(1)

No more than one commercially used or licensed vehicle with a load limit rating under one ton may be parked upon privately owned residential property provided said vehicle is parked upon an improved (concrete or asphalt) driveway and is no closer than 20 feet from the front property or road right-of-way line.

(2)

Delivery or service vehicles during the hours of 7:00 a.m. and 9:00 p.m.

e.

Recreational vehicle parking. No person or persons, homeowner, tenant, or non-homeowner shall park any recreational vehicle on any public street, highway, alley or other public right-of-way in the City of Utica for any purpose or any length of time, except for loading or unloading, for no more than 48 hours. For purposes of this section, "recreational vehicle" shall include any of the following:

1.

Boats and boat trailers, which shall include floats and rafts, plus the normal equipment used to transport the same on the highway;

2.

Folding tent trailer, which is defined as a folding structure mounted on wheels and designed for travel and vacation use;

3.

Motorized home, which is defined as a portable dwelling designed and constructed as an integral part of a self-propelled vehicle;

4.

Pick-up camper, which is defined as a structure primarily to be mounted on a pick-up or truck chassis and with sufficient equipment to render it unsuitable for use as a temporary dwelling for travel, recreational and vacation uses;

5.

Travel trailer, which is a vehicular, portable structure built on a chassis, designed to be used as a temporary dwelling for travel, recreational and vacation uses, and either licensed as a trailer or permanently identified travel trailer by the manufacturer, or a movable or portable dwelling, constructed to be towed on its own chassis and connected to utilities and designed without a permanent foundation for year-round living;

6.

Utility trailer, which is a vehicle licensed as a trailer used to transport motorcycles, snowmobiles, go-karts or stock cars or equipment; or

7.

Any other vehicle which is not licensed for road use which is primarily intended for off-road pleasure activities.

(Ord. No. 129-3, 10-8-1996; Ord. No. 129-5, 9-8-1998; Ord. No. 129-7, 2-9-1999; Ord. No. 176, 11-14-2023)

1.

The open storage of tractors, boats, or similar vehicles as defined in Section 1412 (e) on lands not specifically designated for such parking or storage shall not be permitted.

2.

Residents of the city may keep one recreational vehicle, as defined in Section 1412 (e), on their own property for an indefinite period of time, provided such vehicles are in operable condition and are kept in the rear or side yard. Such vehicles are prohibited from blocking any public right-of-way and hall be subject to all other applicable provisions concerning accessory buildings set forth in section 1405.

3.

A travel trailer, motor home, or camper parked or stored on a residential lot shall not be connected to sanitary facilities and shall not be occupied.

(Ord. No. 176, 11-14-2023)

Cross reference— Traffic and vehicles, ch. 78.

1.

Every dwelling unit hereafter erected shall have a minimum of 1,200 square feet of floor space on the ground floor provided that dwellings with 1½ stories or more shall have a minimum of 900 square feet on the ground floor. For the purpose of this paragraph, a basement or cellar shall not count as a story, and a breezeway or garage shall not be included in the computation of ground floor area.

2.

It has a minimum width across any section of 24 feet and complies in all respects with the state construction code. Where as dwelling is required, by law, to comply with any federal or state standards or regulations for construction, and where such standards or regulations allow standards of construction which are less stringent than those imposed by the state construction code then, and in that event, the less stringent federal or state standard or regulation shall apply.

3.

It is firmly attached to a permanent foundation constructed on the site in accordance with the state construction code and co-extensive with the perimeter of the building, which attachment shall also meet all applicable building codes and other state and federal regulations.

4.

It does not have exposed wheels, towing mechanism, undercarriage, or chassis.

5.

The dwelling is connected to a public sewer and water supply or to such private facilities approved by the county health department.

6.

The dwelling contains storage area whether in a basement located under the dwelling, in an attic area, in closet areas or in a separate structure being of standard construction similar to, or of better quality than, the principal dwelling. Such storage shall be in addition to the space for the storage of automobiles and shall be equal to not less than 15 percent of the minimum square footage requirement of this ordinance for the zone in which the dwelling is located. In no case, however, shall more than 200 square feet of storage area be required by this provision.

7.

The dwelling is aesthetically compatible in design and appearance with other residences in the vicinity, and with either a roof overhang of not less than six inches on all sides, or alternatively with window sills and roof drainage systems concentrating roof drainage along the sides of the dwelling; with not less than one exterior door being in the front of the dwelling and contains permanently attached steps connected to said exterior door area where a difference in elevation requires the same.

The compatibility of design and appearance shall be determined in the first instance by the city building official upon review of the plans submitted for a particular dwelling subject to appeal by an aggrieved applicant to the board of zoning appeals within a period of 15 days from the receipt of notice of said building official's decision. Any determination of compatibility shall be based upon the following standards:

a.

Architectural style is not restricted. Evaluation of the appearance of a project shall be based on the quality of its design and relationship to its surroundings.

b.

Buildings shall have a good scale and be in harmonious conformance with permanent neighboring development.

c.

(i)

Materials shall have good architectural character and shall be selected for harmony of the building with adjoining buildings.

(ii)

Materials shall be selected for suitability to the type of buildings and the design in which they are used. Buildings shall have the same materials, or those that are architecturally harmonious, used for all building walls and other exterior building components wholly or partly visible from public ways.

(iii)

Materials shall be of durable quality.

(iv)

In any design in which the structural frame is exposed to view, the structural materials shall be compatible within themselves and harmonious with their surroundings.

d.

Building components, such as windows, doors, eaves, and parapets, shall have good proportions and relationships to one another.

e.

Mechanical equipment or other utility hardware on roof, ground, or buildings shall be screened from public view with materials harmonious with the building, or they shall be so located as not to be visible from any public ways.

f.

The roof overhang and pitch shall be comparable to the overhang and pitch of homes typically found in the surrounding area, provided the pitch of the roof shall not be less than one foot of rise for each three feet of horizontal run.

g.

Any determination of compatibility shall be based upon the standards set forth in this section, as compared against the character, design, and appearance of one or more residential dwellings located outside of mobile home parks within 1,000 feet of the subject dwelling where such area is developed with dwellings to the extent of not less than 20 percent of the lots situated within said area; or where said area is not developed by the character, design, and appearance of one or more residential dwellings located outside of mobile home parks throughout the city. The foregoing shall not be construed to prohibit innovative design concepts involving such matters as solar energy, view, unique land contour, or relief from the standard designed home.

8.

The dwelling complies with all pertinent building and fire codes. In the case of mobile homes, the standards for mobile home construction as contained in the United States Department of Housing and Urban Development (HUD) regulations entitled "Mobile Home Construction and Safety Standards" as amended, shall apply. Additionally, all dwellings shall meet or exceed all applicable roof snow load and strength requirements.

9.

The foregoing standards shall not apply to a mobile home located in a licensed mobile home park except to the extent required by state or federal law or otherwise specifically required in the ordinance of the city pertaining to such parks.

10.

All construction required herein shall be commenced only after a building permit has been obtained in accordance with the applicable state construction code provisions and requirements.

1.

No article or service shall be sold or offered for sale on the premises, except as such is produced on the premises by such occupation.

2.

The use of the dwelling unit for the home occupation shall be clearly incidental and subordinate to its use for residential purposes by its occupants, and not more than 25 percent of the dwelling unit, (not counting areas of unfinished attics, attached garages, breezeways, and enclosed and unenclosed porches) shall be used for purposes of the home occupation.

3.

There shall be no change in the outside appearance of the structure or premises, or other visible evidence of the conduct of such home occupation.

4.

The outdoor storage of goods and materials shall be prohibited. No interior display shall be visible from the exterior of a dwelling unit used for purposes of a home occupation.

5.

No more than one home occupation per dwelling unit shall be permitted.

6.

No traffic shall be generated by such home occupation in greater volumes than would normally be expected in a residential neighborhood, and any need for parking generated by the conduct of such home occupation shall be provided by an off-street area, located other than in a required front yard.

Cross reference— Businesses, ch. 14.

State Law reference— Certain required home occupations, MCL 125.583c.

Any dwelling unit used for a bed and breakfast operation shall be allowed in one family residential districts (R-1A through R1-B), permitted it is in compliance with chapter 14, article XIII - bed and breakfast operations.

(Ord. of 3-14-2023)

Cross reference— Businesses, ch. 14.

For uses making reference to this section 1417, vehicular access shall be provided only to an existing or planned major thoroughfare, freeway service drive, or collector street. Provided, however, that access driveways may be permitted to other than a major thoroughfare, freeway service drive, or collector street where such access is provided to a street where the property directly across the street between the driveway and the major thoroughfare, freeway service drive, or collector street is zoned for multiple-family use or any nonresidential uses, is developed with permanent uses other than single-family residences or is an area which, in the opinion of the planning commission, will be used for other than single-family purposes in the future. This exception shall apply only if the planning commission finds that there are special circumstances which indicate that there will be a substantial improvement in traffic safety by reducing the number of driveways to a thoroughfare.

In all residential districts, so called entranceway structures including but not limited to walls, columns, and gates marking entrances to single-family subdivisions or multiple housing projects may be permitted and may be located in a required yard, except as provided in section 1300 provided that such entranceway structures shall comply to all codes of the municipality, and shall be approved by the building department and a permit issued.

Except as may otherwise be provided in the ordinance, no fence, wall, shrubbery, sign, or other obstruction to vision above a height of two feet from the established street grades shall be permitted within the triangular area formed at the intersection of any street right-of-way lines by a straight line drawn between said right-of-way lines at a distance along each line of 25 feet from their point of intersection.

1.

Intent. It is the intent of this section to specify certain materials which must be prepared and submitted by land developers to assist the city in determining if the proposed development is in compliance with local ordinance and state and federal statutes, which are enacted to protect wildlife, preserve ecologically important features, and retain environmental resources.

2.

Definitions.

"Natural resources" shall include:

a.

Archaeological finds.

b.

Endangered species habitat.

c.

Floodplain, 100-year. An area which has a one percent chance of flood occurrence in any given year.

d.

Hedgerow. A row of eight or more trees having a four inch or more diameter at four feet. (The drip-line of the trees defines the land area of a hedgerow.)

e.

Ponds and lakes. A natural or artificial impoundment of water that retains water year-round.

f.

Wetlands. Land where standing water is retained for a portion of the year and does support wetland vegetation or aquatic life and is commonly referred to as a bog, swamp, or marsh.

g.

Woodlot. An area of one-quarter acre or more containing eight or more trees per one-quarter acre having a four inch or more diameter at a four-foot height.

3.

Applicability. In any zoning district, no natural resource shall be altered, changed, transformed, or otherwise varied by any person except as may otherwise be provided by this ordinance, and such person having submitted to the building official the required data, exhibits, and information as hereafter required.

4.

Information and data required. The submission of a site plan review as provided by section 1300 of this zoning ordinance shall be accompanied by a natural resources analysis, which shall be submitted by and at the expense of the petitioner. Submission shall be made concurrently with the payment of site plan review fees.

The natural resources analysis shall include, but not be limited to, the following information:

a.

Site conditions of the subject property indicating the location, size, and type of existing natural resources. Such information shall be displayed on a map in relation to the subject parcel's property lines and existing development pattern.

b.

A project description which, in narrative form, shall describe the proposed development in terms of use, density, building coverage, height, gross floor area, number of units, parking, landscaping, internal site circulation, traffic to be generated, and other applicable design features.

c.

The petitioner shall provide a full analysis and description of the proposed project's impact on the natural resources existing on the site. This analysis shall include an evaluation of alternatives to affecting the natural resources in terms of alternative site location or actions. The analysis shall also assess the impact of affecting the natural resource(s) in terms the natural environment (topography, habitat, hazards, etc.), social concerns (aesthetics, historic and cultural values, etc.), economic aspects (employment opportunities created, tax base, land use pattern, etc.), and legal constraints (permits required, intergovernmental review, conformance with local plans/ordinances, etc.). These factors shall be evaluated in terms of both positive and negative impacts, direct and indirect impacts, as well as longterm vs. short-term affects.

d.

The applicant shall identify measures to mitigate or eliminate negative affects to natural resources identified in step 4(c) above.

Cross reference— Environment, ch. 26.

1.

Intent. Landscaping, greenbelts, and screening are necessary for the protection and enhancement of the environment and for the continued vitality of all land uses in the city. Landscaping and greenbelts are capable of enhancing the visual environment, preserving natural features, improving property values, and alleviating the impact of noise, traffic, and visual disruption related to intensive uses. The purpose of this section is to set minimum standards for the protection and enhancement of the environment through requirements for the design and use of landscaping, greenbelts, and screening.

2.

Scope of application. The requirements set forth in this section shall apply to all uses, lots, sites, and parcels which are developed or expanded following the effective date of this ordinance. No site plan shall be approved unless said site plan shows landscaping consistent with the provisions of this section. Furthermore, where landscaping is required, a building permit shall not be issued until the required landscape plan is submitted and approved, and a certificate of occupancy shall not be issued unless provisions set forth in this section have been met or a performance bond has been posted in accordance with the provisions set forth in section 1800.7.

In cases where the use of an existing building changes or an existing building is changed or otherwise altered or reoccupied, all of the standards set forth herein shall be met.

The requirements of this section are minimum requirements, and nothing herein shall preclude a developer and the city from agreeing to more extensive landscaping.

3.

Landscaping design standards. Except as otherwise specified in the general requirements for each zoning district, all landscaping shall conform to the following standards:

a.

General landscaping. All portions of the lot or parcel area not covered by buildings, paving, or other impervious surfaces shall be landscaped with vegetative ground cover and other ornamental materials as required below, except where specific landscape elements, such as a greenbelt, berm, or screening are required:

(1)

All portions of the landscaped area shall be planted with grass, ground cover, shrubbery, or other suitable plant material, except that paved patios, terraces, sidewalks and similar site features may be incorporated with planning commission approval.

(2)

A mixture of evergreen and deciduous trees shall be planted at the rate of one tree for each 1,000 square feet or portion thereof of landscaped open-space area.

(3)

Required trees and shrubs may be planted at uniform intervals, at random, or in groupings.

(4)

On sites which are two acres or larger in size, the landscaped area shall include a greenbelt of a minimum ten-foot width, located and continually maintained along a public right-of-way.

(5)

In consideration of the overall design and impact of the landscape plan, the planning commission may reduce or waive the requirements outlined herein for general landscaping, or for landscaping in greenbelt areas, on berms, or as part of a screen, provided that any such adjustment is in keeping with the intent of the ordinance, and more specifically, with the intent of section 1421.1.

(6)

The total landscaped area shall be the basis for determining the required number of trees or shrubs, irrespective of the portion which is devoted to patios, terraces, sidewalks, or other site features.

b.

Greenbelt buffer. Where required, greenbelts and greenbelt buffers shall conform to the following standards:

(1)

A required greenbelt or greenbelt buffer may be interrupted only to provide for roads or driveways for vehicular access.

(2)

Grass, ground cover, or other suitable live plant material shall be planted over the entire greenbelt area, except that paving may be used in areas of intensive pedestrian circulation.

(3)

A minimum of one deciduous tree or evergreen tree shall be planted for each 30 lineal feet or portion thereof of required greenbelt length. Required trees shall be at least five feet tall and may be planted at uniform intervals, at random, or in groupings.

(4)

For each 50 linear feet or portion thereof of required greenbelt length, at least one ornamental spring flowering tree at least five feet in height shall be installed and maintained.

(5)

Two 18-inch high or wide shrub shall be required for each 15 linear feet of greenbelt area. Required shrubs may be planted at uniform intervals, at random, or in groupings.

(6)

For the purpose of determining required plant material, required greenbelt area length shall be measured along the exterior periphery of the greenbelt area inclusive of all driveways.

c.

Berms. Where required, earth berms or landscaped berms shall conform to the following standards:

(1)

The berm shall be at least three feet above the grade elevation, and shall be constructed with slopes no steeper than one foot vertical for each three feet horizontal. For the purposes of this provision, grade elevation shall be the ground elevation at the property line adjacent to the proposed berm.

(2)

The berm area shall be planted with grass or other suitable ground cover to ensure that it withstands wind and weather and retains its height and shape.

(3)

A minimum of one deciduous or evergreen tree shall be planted for each 30 linear feet or portion of required berm.

(4)

Eight shrubs per tree may be planted as substitute for trees (see item "3" above).

(5)

Required trees and shrubs may be planted at uniform intervals, at random, or in groupings.

(6)

For the purpose of determining required plant material, required berm length shall be measured along the exterior periphery of the berm.

d.

Evergreen screening. Where required, evergreen screening shall consist of closely spaced plantings which form a visual barrier that is at least eight feet above ground level within five years of planting.

e.

Landscaping of rights-of-way and other adjacent public open-space areas. Public rights-of-way and other public open-space areas adjacent to required landscaped areas and greenbelts shall be planted with grass or other suitable ground cover and maintained by the owner of the adjacent property as if they were part of required landscaped areas and greenbelts.

f.

Regulations pertaining to landscaping areas used for sight distance. When a driveway intersects a public right-of-way or when the subject property abuts the intersection of public rights-of-way, all landscaping within the corner triangular areas described below shall permit unobstructed cross-visibility. Shrubs located in the triangular area shall not be permitted to grow to a height of more than two feet above the pavement grade at the edge of the pavement. Portions of required berms located within sight distance triangular areas shall also not exceed a height of two feet above the pavement grade at the edge of the pavement. Trees may be maintained in this area provided that all branches are trimmed to maintain a clear vision for a vertical height of eight feet above the roadway surface. Landscaping, except grass or ground cover, shall not be located closer than three feet from the edge of a driveway.

The triangular areas referred to above are:

(1)

The area formed at the corner intersection of a public right-of-way and a driveway, two sides of the triangle [triangular] area being ten feet in length measured along the right-of-way line and driveway line and the third side being a line connecting these two sides.

(2)

The area formed at a corner intersection of two public right-of-way lines, the two sides of the triangular area being 25 feet in length measured along the abutting public rights of-way lines and the third side being a line connecting these two sides.

g.

Maintenance of landscaping. All required landscape areas shall be planted and maintained with living plant materials. All landscaping which is located more than 50 feet from a building site shall have an irrigation (water sprinkler) system installed to assist in maintaining plant materials in a healthy condition. Failure to maintain required landscaped areas, including the removal and replacement of dead or diseased plant materials, shall constitute a violation of this ordinance.

Whenever in this ordinance planting is required, it shall be planted within six months from the date of completion of the building or improvement, and shall thereafter be reasonably maintained with permanent plant materials. Plastic and other nonorganic, nonliving plant materials shall be prohibited from use and shall not be in compliance with the spirit and intent of this ordinance.

1.

Plant material spacing.

a.

Plant materials shall not be placed closer than four feet from the fence line or property line except that shrubs may be planted no closer than two feet from the fence or property line.

b.

Where plant materials are planted in two or more rows, plantings shall be staggered in rows.

c.

Evergreen trees shall be planted not more than 30 feet on centers, except as provided in section 1222.3.d.

d.

Narrow evergreens shall be planted not more than three feet on centers.

e.

Deciduous trees shall be planted not more than 30 feet on centers.

f.

Tree-like shrubs shall be planted not more than ten feet on centers.

g.

Large deciduous shrubs shall be planted not more than four feet on centers.

4.

Existing plant materials. In instances where healthy plant material exists on a site prior to its development, the building official may adjust the application of the above standards to allow credit for such plant material if such an adjustment is in keeping with, and will preserve, the intent of this section.

All existing plant materials must first be inspected by the building official to determine the health and desirability of such materials. In the event plant materials are to be saved, prior approval must be obtained from the building official before any delimbing, root pruning, or other work is done.

If such existing plant material is labeled "To Be Saved" on site plans, protective techniques, such as (but not limited to) fencing placed at the drip-line around the perimeter of the plant material, shall be installed. No vehicle or other construction equipment shall be parked or stored within the drip-line of any plant material intended to be saved.

In the event that healthy trees labeled "To Be Saved" on the approved site plan are destroyed or damaged, as determined by the building official, the owner, developer or contractor shall replace said trees with trees of comparable type.

Cross reference— Vegetation, ch. 86.

1.

For the use districts and uses listed below, there shall be provided and maintained on those sides abutting or adjacent to a single[-family] or two-family residential district an obscuring wall. The height of the wall shall be measured from the surface of the parking area or land on the nonresidential side of the wall:

2.

In the case of the variable wall height requirement in (d)[1.d] above, the extent of obscuring wall shall be determined by the planning commission on the basis of land usage, provided further that no wall or fence shall be less than the above required minimum, nor greater than the above required maximum height.

3.

Required walls shall be located on the lot line except where underground utilities interfere and except in instances where this ordinance requires conformance with yard setback lines. Upon review of the site plan, the planning commission may approve an alternate location for the wall, or may modify the wall requirement by approving either an earth berm or evergreen screen in its place. The planning commission may also waive the wall requirement if in specific cases where cause can be shown that no good purpose would be served by the screening requirement.

4.

Required walls shall have no openings for vehicular traffic or other purposes, except as otherwise provided in this ordinance and except such openings as may be approved by the planning commission. All walls herein required shall be constructed of materials approved by the building official to be durable, weather resistant, and easily maintained.

5.

The requirement for an obscuring wall between off-street parking areas, outdoor storage areas, and any abutting residential district shall not be required when such areas are located more than 200 feet distant from abutting residential district(s).

1.

Scope. The installation, erection, and/or maintenance of a fence is hereby prohibited except in strict compliance with this ordinance. A permit to be issued by the city clerk shall be obtained prior to installation or erection of any fence within the corporate limits of the City of Utica. Application shall be made upon a form provided by the building department and shall require such information as may be required by the city clerk. All applications for a fence permit shall be accompanied by a filing fee as may be established by city council resolution.

2.

Calculation of fence height. The height of the fence shall be computed as the distance from the base of the fence at normal grade to the top of the highest component of the fence.

3.

Design requirements.

a.

Residential fences. All fences in areas zoned or used for residential purposes shall be of an ornamental type, and shall not be more than six feet in height, above the grade level. Any metal or masonry fence further shall not be more than four feet in height above grade level.

b.

Business, office, or commercial fences. All fences in areas zoned or used for business, office, or commercial purposes shall be of an ornamental type, and shall not be more than six feet in height above grade level.

c.

Industrial fences. All fences in areas zoned or used for industrial purposes shall not exceed eight feet in height above grade level.

d.

Fences separating single[-family] or two-family residential property from multiple-family residential property. Areas zoned or used for multiple-family residential purposes, with five to 16 total number of units, which abut single[-family] or two-family property shall have erected upon said adjoining property line a fence or an ornamental type to be six feet in height above grade level.

e.

Fences for parks, schools, public buildings, etc. The height and type of fences enclosing municipal parks, public and parochial school grounds, public building and church grounds or land used for playgrounds, parks, picnic groves, golf courses, golf driving ranges or similar facilities for outdoor exercise and recreation shall require the approval of the city council after receiving the recommendation of the building department.

f.

Fences required for swimming pools and ponds. For the protection of the general public, any swimming pool, reflector pool, fish pond, lily pond, or artificially constructed body of water which contains 18 inches or more of water in depth at any point shall be enclosed by a fence not less than four feet in height above grade level. The gate(s) shall be of a self-closing and latching type, with the latch on the inside of the gate not readily accessible for children to open. Gates shall be capable of being securely locked when the pool is not in use for extended periods; provided, however, that if the entire premises is enclosed with a fence of not less than four feet in height above grade level, this provision may be waived by the building department.

4.

Material specifications. Fences shall be constructed of wood, metal or masonry, and other acceptable materials, excluding plastic interwoven weave designs. Only new material shall be used, which has been manufactured and/or treated in a manner to prevent rust and corrosion, and/or rot and decay.

a.

All fences shall be constructed of a minimum of:

(1)

Two-inch iron pipe; or

(2)

Two-inch angle iron; or

(3)

Four-inch wooden posts; or

(4)

Four-inch reinforced concrete posts; or any other member having equal stability. All posts shall be sunk in the soil to a depth of at least three feet.

b.

No person shall erect or cause to be erected a fence which is:

(1)

Made with or upon which is fixed barbed wire; or

(2)

Has any protective spike, nail, or sharp pointed object; or

(3)

Charged with electric current;

Provided, however, that a fence in an industrial area may be erected with barbed wire on arms or brackets extending inward over such property upon application and approval by city council.

5.

Location.

a.

All fences must be located entirely on the private property of the person constructing the fence, provided that if the adjoining property owner(s) consent in writing to the construction of a fence on this property line, it may be so constructed. Such written consent shall be filed with the application for a permit.

b.

No fence shall be erected between the front building line and the front property line of the premises, except decorative fences (does not include chain link fences) may be permitted in the front yard providing they do not exceed 30 inches in vertical height at the front property line (road right-of-way line) to a point (setback) of 15 feet from said property line. Decorative fences located beyond 15 feet from the front property line may not exceed 40 inches in vertical height. Decorative fences shall have openings of at least 30 percent of the total surface area, including all framing members, posts, and horizontal and vertical support members. Decorative fences, i.e., picket fences, shall not have pointed top ends. Said fences shall be designed with rounded or squared tops. Decorative fences in a front yard shall be subject to the requirements of section 1802, review and approval of conditional uses where appropriate; fees set by city council.

c.

A fence may be erected parallel to the side street lot line of a corner lot provided it is located at least one foot inside the side street lot line and does not extend beyond the front building line into the front yard.

d.

Privacy fences on private property and/or abutting a public street shall be constructed with the finished side (side with no framing materials, supporting posts, cross-members, etc. being visible) facing the property and/or properties adjacent to the property owner who is responsible for the fence.

6.

Maintenance of nuisance. Fences must be maintained in a neat and safe condition, so as not to endanger life or property. Any fence which, through lack of repair, type of construction or otherwise, endangers life or property is hereby deemed a nuisance. The building department shall notify the owner, agent, or person in control of the property on which such fence is located of the existence of such nuisance and specify the required repairs or modifications to be made to render the fence safe or require that the unsafe fence or any portion thereof to be removed and shall provide a time limiting such repairs, modification, or removal.

7.

Existing fences.

a.

Fences presently in existence shall not be enlarged, rebuilt, or reconstructed without first having obtained a permit therefor from the building department. Such fences, when repaired or replaced, shall conform with all provisions of this ordinance.

b.

Any newly rezoned property shall comply with all fence requirements for the newly zoned district.

c.

Areas zoned or used for multiple-family residential purposes, with 17 or more total number of units shall comply with section 1423 upon a change in the nature of the property rights in the individual units, such as rental apartments to condominiums, cooperatives, or townhouses to rentals or condominiums, or any similar type of change.

d.

In cases where the installation of a new fence is the replacement of an existing fence on the side street lot line of a corner lot, the fence may be installed in the same location as the existing fence provided that the fence remains entirely on the property for which it is intended.

(Ord. No. 129-11, 4-9-2002; Ord. No. 129-12, 10-14-2003; Ord. No. 129-19, 5-29-2007)

1.

In all O-1, C-1, C-2, and MXD districts, there shall be provided an outdoor trash storage area. Any such area shall be limited to normal refuse which is collected on a regular basis and shall be maintained in a neat, orderly and sanitary condition. The requirement for such a trash storage area may be waived by the planning commission upon a finding that it is unnecessary due to the nature of the use, or owing to provisions for indoor trash storage.

2.

In no instance shall any such refuse be visible above the required screening.

3.

A screen wall in accordance with section 1423 of six feet in height shall enclose three sides of the storage area. Bollards and/or other protective devices shall be installed at the opening and to the rear of any storage area to prevent damage to the screening walls. The surface under any such storage area shall be constructed of concrete which complies with local building requirements.

4.

Any such storage area shall be located in a rear yard and/or be so located and arranged as to minimize its visibility from adjacent streets and uses. The planning commission may require an obscuring gate when the visibility of such a storage area, from a public street or adjacent use, is deemed to render an adverse influence. In no instance shall any such area be located in a front yard.

5.

All trash storage areas and/or enclosures shall be located a minimum of ten feet from any building or structure.

1.

All outdoor lighting in all use districts other than residential shall be shielded so the surface of the source of the light shall not be visible from all adjacent residential districts, adjacent residences, and public rights-of-way.

2.

Illumination guidelines shall be in accordance with the following standards:

a.

Street illumination.

Major. The part of the roadway system that serves as the principal network for through traffic flow. The routes connect areas of principal traffic generation and important rural highways entering the city.

Collector. The distributor and collector roadways serving traffic between major and local roadways. These are roadways used mainly for traffic movements within residential, commercial, and industrial areas.

Local. Roadways used primarily for direct access to residential, commercial, industrial, or other abutting property. They do not include roadways carrying through traffic. Long local roadways will generally be divided into short sections by collector roadway systems.

b.

Parking illumination.

High activity. Examples include major-league athletic events, major cultural or civic events, regional shopping centers, and fast food facilities.

Medium activity. Examples include community shopping centers, office parks, hospital parking areas, transportation parking (airports, etc.), cultural, civic or recreational events, and residential complex parking.

Low activity. Examples include neighborhood shopping, industrial employee parking, educational facility parking, and church parking.

3.

All illumination shall not be of a flashing, moving, or intermittent type other than used in connection with a sign for the conveyance of noncommercial information which requires periodic change, such as time, temperature, or stock average.

4.

All illumination shall be constant in intensity and color at all times when in use.

1.

No operation or activity shall be carried out in any district which causes or creates measurable noise levels exceeding the maximum sound pressure levels prescribed below, as measured on or beyond the boundary lines of the parcel on which the use is situated.

Maximum Permitted Sound Pressure Levels in Decibels

Maximum Permitted Sound Pressure Levels in Decibels (Post 1960 Preferred frequencies)

2.

Sounds of very short duration, which cannot be measured accurately with the sound level meter, shall be measured by an impact noise analyzer; and the measurements so obtained may be permitted to exceed the maximum levels provided in the tables shown by no more than ten decibels. For purposes of this ordinance, impact noises shall be considered to be noises generated by sources that do not operate more than one minute in any one-hour period.

3.

Where street traffic noises directly adjacent to the boundary line exceed these maximum permitted levels, the intensity levels permitted may then exceed those levels specified in the tables but may not exceed the level of the subject adjacent street traffic noise.

4.

Sounds of an intermittent nature, or characterized by high frequencies, which the building official deems to be objectionable to adjacent land uses, shall be controlled so as not to generate a nuisance to adjacent land uses, even if the decibel measurement does not exceed that specified in those tables.

5.

Noise resulting from temporary construction activity that occurs between 7:00 a.m. and 7:00 p.m. shall be exempt from the requirements of this section.

1.

A ground mounted satellite antenna shall be located only in the rear yard and shall be subject to the accessory structures setback requirements of the zoning district in which it is located, as measured at the property line to the nearest edge of the dish.

2.

Not more than one satellite antenna shall be allowed on any single residential lot of record.

3.

Any satellite dish antenna shall be installed and maintained with a screen that shall not interfere with the reception but will obscure the view from adjacent lots or streets.

4.

No satellite dish antenna shall exceed 12 feet in diameter.

5.

A roof mount location may be considered as an alternative to a ground mount for nonresidential structures. The maximum height of a roof mounted satellite antenna shall be not greater than 15 feet, including its base, nor shall the building and antenna exceed the maximum height permitted for a structure in its respective zoning district.

6.

The satellite antenna and structural support shall be of noncombustible and corrosive resistant material.

7.

All satellite antennas shall be grounded as required by the applicable building codes to alleviate electrical potential differences between exposed "dead" metal parts of the antenna and the premises A.C. electrical system.

8.

Each satellite antenna shall be designed to withstand a wind force of 75 mph without the use of any supporting guide wires.

9.

Wiring between a satellite dish and the receiver shall be placed at least 18 inches beneath the surface of the ground with a cable approved for direct burial.

10.

Any driving motor shall be limited to 100v maximum power design and be encased in protective guards. Any motor with operating voltage of more than 60v A.C. nominal shall comply with Article 430 of the National Electrical Code, as may be amended.

11.

A satellite antenna shall be permanently mounted. A satellite antenna may only be on wheels or temporarily installed when used to demonstrate and/or test the feasibility of use for no more than two weeks.

12.

No satellite dish antenna permanently mounted shall be used, nor contain a commercial or residential advertisement, except signs indicating the manufacturer, sales or servicing agent, the total of which shall not exceed 20 square inches.

Cross reference— Telecommunications, ch. 74.

1.

For permanent above[ground] or belowground swimming pools, and for portable pools with a diameter exceeding 12 feet or an area exceeding 100 square feet, a building permit must be obtained for its alteration, erection, and construction. Before a permit is issued, an application shall be approved by the enforcing official (building official or authorized representative). An application is not required for a wading pool. An application for a permit should provide the following information: name of the owner, plot plan specifying dimensions, site location of the pool, as well as nearby fences, buildings, gates, septic tanks, tile fields, public utilities, and easements. The application for a belowground pool must include plans and specifications to scale of the pool walls, slope, bottom, walkway, diving boards, type and rating of auxiliary equipment, piping, and valve layout.

2.

Rear and side lot line setbacks shall not be less than ten feet between the pool outside wall and the side or rear property line, and not less than ten feet between pool wall and any building on the lot.

3.

With regard to overhead electrical or telephone wires, a distance of not less than ten feet horizontally from the waters edge shall be enforced. Under no circumstances shall wire of any kind cross over the water surface.

4.

A swimming pool shall not be less than 25 feet horizontally to any semi-public water well, unless a shorter distance is approved by the county health department.

5.

A distance of at least three feet horizontally must be maintained from a permanent pool to any sewer. There shall be ten feet horizontally to a septic tank and tile field or other treatment facility, provided the water level in the pool is one foot or more above the ground surface elevation of such treatment facility.

6.

A distance of three feet shall be provided from any portion of the pool to any underground water, electrical, telephone, gas, or other pipes and conduits, except for parts of the swimming pool system.

7.

No yard containing a swimming pool or wading pool shall be constructed or maintained unless such swimming pool is entirely enclosed by a building, wall, and/or fence. The minimum height of all parts of the fence or wall, including gates, shall be four feet in height, and not more than six feet in height, measured from grade. The fence shall be designed and constructed so as to make the pool inaccessible to children by climbing or entering through the fence openings. The fence must be no closer than ten feet to the waters' edge. All openings in any such fence or building shall be equipped with a self-closing, self-latching gate or door which shall be securely locked with a tamper-proof lock when the pool is not in use.

8.

A private swimming pool shall be located only in the rear yard.

1.

Intent. It is recognized that there are certain instances where it would be in the best interest of the City of Utica, 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 section 405 of the Michigan Zoning Enabling Act of 2006, as amended, 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. It is further the intent of this option to be an overlay zone to the underlying zoning district.

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 application is requested. The land owner shall attend a pre-application meeting with the city's mayor and planner prior to offering any written conditions that are part of an application for rezoning. In addition, the following shall apply:

(1)

The uses allowed under the proposed rezoning shall be compatible with city's general development plan (master plan) and compatible with other zones and uses in the surrounding area.

(2)

Public services and facilities shall not be significantly or adversely impacted by a development or use allowed under the requested rezoning.

(3)

The uses allowed under the proposed rezoning shall be equally or better suited to the area than uses allowed under the current zoning of the land.

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 rezoning is being 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 ordinance may only be commenced if a special land use permit for such use or development is ultimately granted in accordance with the provisions of this ordinance.

f.

No variance(s) shall be made in connection with a use or development authorized by the provisions of this section for a conditional rezoning.

g.

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

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 owners offer of conditions any time prior to final rezoning action of the city council provided that, if such 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 a public hearing and consideration of the factors for rezoning set forth in article XXII of this ordinance, may recommend approval, approval with recommended changes or recommend denial of the rezoning; provided, however, that any recommended changes to the offer of conditions are acceptable to and thereafter offered by the owner. Should the owner fail to offer the recommended changes provided by the planning commission, the planning commission shall recommend a denial of the conditional rezoning to the city council.

4.

City council review. After receipt of the planning commission's recommendation, the city council shall deliberate the conditional rezoning request and may approve or deny the request. The city council's deliberations shall include, but limited to, a consideration of the factors for rezoning set forth in article XXII of this ordinance. 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 section 401 of the Michigan Zoning Enabling Act (MCL 125.3401), refer such amendments to the planning commission for a report thereon within a time specified by the city council and proceed thereafter in accordance with said 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 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.

The statement of conditions shall:

(1)

Be in a recordable form that is acceptable to the Macomb County Register of Deeds.

(2)

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

(3)

Contain a statement acknowledging that the statement of conditions run with the land and is binding upon successor owners of the land providing the use or development remains consistent with conditional rezoning statement of conditions.

(4)

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.

(5)

Contain a statement acknowledging that the statement of conditions shall be recorded by the owner with the Macomb County Register of Deeds and further that the owner provide to the City of Utica an affidavit from the Macomb County Register of Deeds giving notice that the statement of conditions have been duly registered.

(6)

Contain the notarized signatures of all 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.

c.

Upon the rezoning taking effect, the city's zoning map shall be amended to the new zoning classification along with a designation that the land was with a statement of conditions. The city clerk shall maintain a listing of lands rezoned with a statement of conditions.

d.

The approved statement of conditions shall be filed by the owner with the Macomb County Register of Deeds and the owner shall provide the City of Utica an affidavit from the Macomb County Register of Deeds giving notice that the statement of conditions have been duly registered.

e.

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 provisions contained in the statement of conditions.

6.

Compliance with conditions.

a.

Any person who establishes a development or commences a use upon the land that has been rezoned with conditions shall continuously operate and maintain the 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 as set forth in article XXVI and be punishable accordingly. Additionally, any such violation shall be deemed a public nuisance per se and subject to judicial abatement as provided by law as set forth in article XXVI of this ordinance.

b.

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

7.

Time period for establishing development or use. Unless another time period is specified in the statement of conditions 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 12 months after the rezoning took effect and thereafter proceed diligently to completion. This time period shall not be extended regardless of any circumstances offered by the owner.

8.

Reversion of zoning. If the approved development and/or use of the rezoned land does not occur within the time frame specified under subsection 7. above, then the land shall revert to its former zoning classification as set forth in section 405 of the Michigan Zoning Enabling Act of 2006, as amended. 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 rezoning classification. The procedure for considering and making this reversionary rezoning shall thereafter be the same as applies to all other rezoning requests.

9.

Subsequent rezoning of land. When land that has been rezoned with a statement of conditions is thereafter rezoned to a different zoning classification or to the same zoning classification but with a different statement of conditions or without statement of conditions, whether as a result of a reversion of zoning pursuant to subsection 8. above or otherwise, the statement of conditions imposed under the former zoning classification shall cease to be in effect. Once the statement of conditions ceases to be in effect, the city clerk shall record a notice with the Macomb County Register of Deeds that the statement of conditions is no longer in effect.

10.

Amendment of conditions.

a.

During the time period for commencement of an approved development or use specified pursuant to subsection 7. above, 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.

11.

City right to rezone. Nothing in the statement of conditions nor in the provisions of this section shall be deemed to prohibit the city from rezoning all or any portion of the land that is subject to a statement of conditions to another zoning classification. Any rezoning shall be conducted in compliance with this ordinance and the Michigan Zoning Enabling Act of 2006, as amended.

12.

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 ordinance.

(Ord. of 11-9-2010)

1.

Intent.

a.

The intent of this section is to encourage innovation and to allow more efficient use of land through the use of regulatory flexibility in the consideration of proposed land uses within the city consistent with the requirements of the city's master land use plan. It is the further intent to replace the usual approval process involving rigid use and bulk specifications by the regulations contained in this section and by the utilization of an approved development plan.

b.

The planned unit development (PUD) permitted under this section shall be considered as an option to the development permitted in all zoning districts and shall be mutually agreeable to the developer and the city. Development under this section shall be in accordance with a comprehensive physical development plan establishing functional use areas, density patterns, and vehicular and pedestrian circulation systems. The development is to be in keeping with the physical character of the city and the area surrounding the proposed development, preserving as much natural vegetation and terrain as possible.

2.

General requirements for PUD. PUDs may be permitted after review and recommendation of the conceptual development plan by the planning commission and approval of the city council in accordance with the procedures set forth herein and after public hearings on the concept plan have been held by the planning commission and the city council, subject to the following conditions:

a.

Basic land conditions.

(1)

PUDs may be permitted in all zoning districts.

(2)

The site area used for computing density shall consist of land that is under single ownership or control.

(3)

The proposed development must be in basic accord with the intent of the PUDs.

(4)

The city may also qualify sites where an innovative, unified, planned approach to developing the site would result in a significantly higher quality of development, the mitigation of potentially negative impacts of development, or more efficient development than conventional zoning would allow.

b.

Uses permitted.

(1)

All uses permitted as principal uses permitted, or special approval land uses and accessory uses permitted in all zoning districts. Multiple uses contained in a PUD must be complementary in nature. If a PUD includes residential uses, the housing types may be clustered to preserve common open space, in a design not feasible under the underlying zoning district regulations. The PUD must provide a complementary variety of housing types and/or a complementary mixed-use plan of residential and/or non-residential uses that is harmonious with adjacent development.

c.

Residential density.

(1)

The maximum permitted densities within a PUD shall be governed by the zoning district in which it is located. The overall dwelling density for single or multiple family residential districts cannot exceed the maximum dwelling unit density computed for the entire gross site area based on the allowable density of the underlying zoning district.

(2)

At the discretion of the city council, after review and recommendation by the planning commission, the maximum density permitted may be increased, by up to 25 percent of the permitted zoning density within that district, provided that the development meets the intent and all other standards of the PUD provisions and all other city ordinances.

(3)

A majority of the proposed residential units within all residential districts must be developed as either single family, two-family, or multiple family as determined by the underlying zoning.

d.

Mixed use and commercial PUDs.

(1)

A PUD may include residential and non-residential uses as determined by the city council after review and recommendation of the planning commission. The use of creative development concepts including mixed uses and green infrastructure should be used to create commercial nodes and gateways and facilitate renovation of existing retail centers as opposed to creating strip commercial centers and large surface level parking areas along major thoroughfares.

(2)

Setback and other dimensional requirements of the underlying zoning district(s) shall be used as guidelines for reviewing a proposed mixed-use or commercial PUD, which requirements may be modified by the city council to achieve the intent of the PUD after review and recommendation of the planning commission.

(3)

Permitted commercial uses shall be limited to those determined by the city council after review and recommendation of the planning commission, to be suitable for the site and compatible with the surrounding area. Any uses listed as special approval land uses shall be required to comply with specific conditions relating to such uses, although no additional review process is needed, other than the PUD approval process.

(4)

Attached residential units may be permitted as a transitional use between commercial uses and lower density residential in a mixed-use PUD where the underlying zoning is commercial.

(5)

Elderly housing may be permitted in a mixed-use or commercial PUD. The permitted dwelling unit density of the elderly housing component shall be evaluated based upon the type of elderly housing proposed (i.e., independent, assisted, etc.), the conditions of the site, anticipated traffic impacts, and character of surrounding uses and the neighborhood.

e.

Design and layout conditions. The planning commission and city council shall use any applicable standards for approval contained in city ordinances related to land use and any adopted development guidelines.

(1)

Where a planned or proposed major, secondary, or collector thoroughfare is included partially or wholly within the project area of a PUD, such portion of the roadway shall be provided as a public right-of-way with the width standards as stated in the master road plan for the right-of-way. The alignment of the roadway shall be in general conformance to the proposed alignment as shown on the master plan.

(2)

In order to provide an orderly transition of density, where the project being proposed for use as a PUD immediately abuts a residential district, (not including districts separated by a major thoroughfare), the city may require that the area immediately abutting the district shall be developed with a like development or landscaped open space.

(3)

Site design standards should include frontage beautification, buffering devices, landscaping, green infrastructure and storm water treatment, pedestrian amenities, walkway linkages, controlled vehicular access, and attractive signage.

(f)

Area, height and bulk conditions.

(1)

All yards, height, bulk, minimum floor area, lot coverage, lot area, and lot width requirements for single-family development shall be in conformance with the requirements of the applicable zoning districts, including special development options, unless otherwise modified by the approved development plan.

(2)

All yards, height, bulk, minimum floor area, and lot coverage requirements for multiple-family and attached development shall meet the requirements of C-1, C-2, MXD and DMXD districts, as applicable, unless otherwise modified by the approved development plan.

(3)

All other uses permitted within the applicable districts shall be subject to the requirements of the respective districts unless otherwise modified by the approved development plan.

3.

Submittal procedures and conditions. Two distinct steps are required to develop a parcel of land as a PUD development: approval of the concept plan and site plan approval. Any person owning or controlling land may make application to the city council for consideration of a PUD. In order to adequately review the site plan, the applicant shall be required to submit the following materials to the city:

a.

Submittal of proposed PUD concept plan. The proposed PUD concept plan shall contain at least the following:

(1)

A boundary survey of the exact acreage being requested done by a registered land surveyor or civil engineer (Scale: 1 inch = 200 feet).

(2)

A current aerial photograph of the area shall be provided (Scale: 1 inch = 200 feet).

(3)

Application form and required fee.

(4)

A narrative indicating the period of time within which the project will be completed.

(5)

A site plan with four-sided elevations showing a layout of the uses and structures in the PUD and their locations including:

(a)

Layout of proposed land use, acreage allotted to each use, residential density overall and by underlying zoning district, and generalized building footprints;

(b)

Roads, parking areas, drives, driveways, and pedestrian paths;

(c)

Building setbacks and spacing;

(d)

General location and type of landscaping proposed;

(e)

Any significant woodlands that will be preserved;

(f)

A preliminary layout of the storm water drainage plan, including detention or retention pond locations;

(g)

Locations of public or private utilities; and

(h)

Identification of each phase, if a multi-phase development is proposed.

(6)

Any additional graphics or written materials reasonably requested by the planning commission or city council to assist in determining the impacts of the proposed site plan, including, but not limited to, economic or market studies; impact on public primary and secondary schools and utilities; traffic impacts; impact on significant natural, historical, and architectural features and drainage; impact on the general area and adjacent property; and estimated construction costs.

b.

Planning commission review of proposed PUD plan. Upon receipt of an application by the city, such request shall be referred to the planning commission for its review and recommendation. In its review, the planning commission shall consider the following:

(1)

That all applicable provisions of this section have been met. Insofar as any provision of this section shall be in conflict with the provisions of any other section of this code, the provisions of this section shall apply to the lands embraced within a PUD area.

(2)

That adequate areas have been provided for all utilities, walkways, recreational areas, parking areas and other open spaces, and areas to be used by the public or by residents of the community.

(3)

The plan provides for an efficient, aesthetic, and desirable use of the open areas and the plan is in keeping with the physical character of the city and the area surrounding the development.

(4)

Upon finding that the conditions outlined above have been satisfactorily met, the planning commission will within a reasonable time forward its report and recommendation to the city council.

c.

Approval of PUD concept plan. Upon receipt of the report and recommendation from the planning commission, the city council shall hold a public hearing and consider whether or not all conditions have been satisfactorily met

(1)

The city council shall review the conceptual plan, together with the findings of the planning commission, and shall approve, approve with conditions, or deny the conceptual plan.

(2)

Once an area has been included within a plan for a PUD that has been approved by the city council, no development may take place in such area nor may any use thereof be made except in accordance with a city council approved amendment thereto.

(3)

The owner must receive final site plan approval for the proposed development within 12 months of approval of the conceptual plan, obtain a building permit within 18 months of conceptual plan approval, and complete development of the PUD within 30 months of conceptual plan approval. This time limitation may be extended by the city council in response to a request from the owner.

(4)

Approval of the concept plan by the city council shall not constitute final site plan approval. Approval of the conceptual plan shall serve as a guide in the preparation and review of the final site plan.

4.

Site plan review. Upon approval of the PUD conceptual plan by the city council, a site plan review is required in accordance with ordinance site plan review requirements and procedures prior to the issuance of building or zoning compliance permits. Site plans shall also provide the following:

a.

Structural outline (building envelope) of all structures proposed on the site;

b.

Architectural renderings of building facade elevations, typical floor plans and topography shall be drawn at a two-foot contour interval. Elevation drawing shall be drawn to scale. Where more than one type of structure or design is intended, the sample elevation and corresponding floor plans of each type shall be submitted;

c.

A plan identifying the areas to be dedicated as open space and recreational use showing access, location and any improvements. To assure the permanence of the open space and its continued maintenance, the developer shall provide a proposed open space agreement for review and approval by the city attorney. The open space agreement must be in a form satisfactory to the city and shall include the following:

(1)

The proposed manner of holding title to the open space;

(2)

The proposed manner of payment of taxes;

(3)

The proposed method of regulating the use of open space;

(4)

The proposed method of maintenance of the open space area and the financing thereof;

(5)

Any other facts relating to the legal or practical problems of ownership and maintenance of the open space;

d.

The location of access drives, streets, off-street parking areas, and sidewalks;

e.

A landscape plan showing location, extent and type of plantings and screening in accordance with the zoning ordinance.

5.

Regulatory flexibility. The city council may increase, decrease, waive, or otherwise modify the current standards within the zoning ordinance including, but not limited to: Use, density, intensity, setbacks, building heights, parking, design standards, project design standards, and landscape standards provided the modification is found to improve the quality of development above and beyond what could be developed under the underlying zoning, or results in a higher level of public benefit, and to achieve the purpose of this article. The zoning board of appeals shall have no variance authority for PUD projects.

(Ord. of 12-11-2018)

1.

Intent and purpose. On November 4, 2008, Michigan voters approved a ballot initiative that legalized medical marihuana and on December 4, 2008, Michigan's Medical Marihuana Act, MCL 333.26421 et seq. ("MMMA"), took effect allowing both patients and/or their caregivers to cultivate medical marihuana within an enclosed, locked facility in order for those individuals to be entitled to the MMMA protections. As such, these enclosed locked facilities have been located on various locations of varying zoning classifications within the city.

The Stille-Derossett-Hale Single State Construction Code Act 230 of 1972 (MCL 125.1501 et seq.) allows a local unit of government to legally adopt and enforce the state building code at the local level. The purpose of the building code is to ensure public health, safety, and welfare by protecting life and property from all hazards related to the design, erection, repair, removal, demolition, or use and occupancy of buildings, structures, or premises. This is in relation to structural strength, adequate egress facilities, sanitary equipment, light and ventilation, and fire safety. Building permits are required when construction or alteration of a structure is in order when a patient caregiver has made alterations to a structure to support the cultivation of marihuana.

Since the passage of the MMMA, a caregiver's cultivation of marihuana, particularly within residential and commercial zoning districts within the city, has resulted in problems with insufficient or improper electrical supplies, inadequate ventilation leading to mold, offensive odors, other health hazards, and/or other hazards which are associated with the cultivation of marihuana in residential and commercial settings.

The Michigan Zoning Enabling Act, MCLA 125.3101 et seq., ("MZEA") provides the city with statutory authority to regulate land use within the city through its zoning ordinance. The Michigan Supreme Court in the case of DeRuiter v Byron Township, No. 158311, decided April 27, 2020, found that a municipality's zoning ordinance that geographically restricted such caregiver marihuana cultivation to a particular zoning district did not directly conflict with the MMMA and the township had the authority under the MZEA to require zoning permits and permit fees for the use of buildings and structures within its jurisdiction.

Therefore, this section as proposed is intended to permit those persons in need of marihuana for medicinal purposes, as allowed under the State Acts as defined herein, to be afforded a reasonable opportunity to be treated, and for those persons who are permitted to furnish medical marihuana to furnish it within the limitations of the State Acts and the geographical restriction imposed by the zoning ordinance in order to protect public health, safety, and welfare.

This section is also intended to protect and preserve the public health, safety, and welfare of the community, the quality of life, and the stability of property values including but not limited to the value of residential, commercial, and industrial districts.

This section is also intended to prohibit a caregiver's cultivation of marihuana in residential and commercial districts in order to protect and preserve peace, order, property, and safety of persons as a result of issues associated with the growth of marihuana in residential and commercial districts including problems with insufficient or improper electrical supply, problems with ventilation leading to mold, offensive odors, or other health hazards and other hazards which are associated with the cultivation of marihuana in residential and commercial settings and which is otherwise often difficult to detect and regulate. The MZEA provides the city with statutory authority to impose zoning limitations as set forth in this section. The city's zoning authority as it relates to patient caregiver operations pursuant to the MMMA has also been upheld by the Michigan Supreme Court in the case of DeRuiter v Byron Township, No. 158311, decided April 27, 2020.

2.

Definitions. The following words, terms and phrases, when used in this subsection, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning:

a.

MMMA means to the Michigan Medical Marihuana Act, MCL 333.26421 et seq. currently, or as amended ("Act" or "MMMA").

b.

Registered primary caregiver means a person meeting the definition of caregiver under the MMMA and who has been issued and possesses a registry identification card and possesses the documentation that constitutes a valid registry under the MMMA.

c.

Marihuana means that term as defined in Section 7106 of the Public Health Code, 1978 PA 368, currently MCL 333.7106, or as amended.

d.

Medical use means the acquisition, possession, cultivation, manufacture, use, internal possession, delivery, and/or transportation of marihuana or paraphernalia relating to the administration of marihuana to treat or alleviate a registered qualifying patient's debilitating medical condition, or symptoms associated with the debilitating medical condition, as further defined under the MMMA.

e.

Registered qualifying patient means a person meeting the definition under state law and who has been issued and possesses a registry identification card which is valid under the MMMA, as amended.

f.

Enclosed locked facility means a closet, room, or other comparable stationary and fully enclosed area equipped with secure locks or other functioning security devices that permit access only by a registered primary caregiver or registered qualifying patient. Marihuana plants grown outdoors are considered to be in an enclosed, locked facility if they are not visible to the unaided eye from an adjacent property when viewed by an individual at ground level or from a permanent structure and are grown within a stationary structure that is enclosed on all sides, except for the base, by chain-link fencing, wooden slats, or a similar material that prevents access by the general public and that is anchored, attached, or affixed to the ground; located on land that is owned, leased, or rented by either the registered qualifying patient, or a person designated through the department registration process, as the primary caregiver, for the registered qualifying patient, or patients for whom the marihuana plants are grown; and equipped with functioning locks or other security devices that restrict access only to the registered qualifying patient, or the registered primary caregiver, who owns, leases, or rents the property on which the structure is located. Marihuana plants grown outdoors in an enclosed, locked facility shall be subject to special approval land use under the zoning ordinance. Enclosed, locked facility includes a motor vehicle if both of the following conditions are met:

(1)

The vehicle is being used temporarily to transport living marihuana plants from one location to another with the intent to permanently retain those plants at the second location.

(2)

An individual is not inside the vehicle unless he or she is either the registered qualifying patient to whom the living marihuana plants belong, or the individual designated through the department of registration process as the primary caregiver for the registered qualifying patient.

g.

Transfer means to convey, sell, give, deliver, or allow the possession by another person or entity.

h.

MRTMA means the Michigan Regulation and Taxation of Marihuana Act, Initiated Law 1 of 2018, MCL 333.27952 et seq. currently, or as amended. ("MRTMA").

i.

Other provisions and terms. The other provisions and terms of the MMMA and MRTMA for purposes of deferential context are incorporated by reference as though more fully restated herein.

3.

Medical marihuana for registered qualifying patients or any individual over the age of 21. Registered qualifying patients, visiting qualified patients and individuals over the age of 21 years old, may use, possess, and store marihuana as provided in the MMMA, MCL 333.26421 et seq. as amended, and marihuana as provided in the MRTMA, MCL 333.27952 et seq. as amended, and as further regulated herein.

a.

Registered qualifying patient and individuals over the age of 21 years of age:

(1)

May use, possess, and store marihuana in their principal residence within the city and shall comply at all times and in all circumstances with the MMMA, MRTMA, and the General Rules of the Michigan Department of Community Health or the Michigan Department of Licensing and Regulatory Affairs, as they may be amended from time to time.

(2)

May only cultivate marihuana for him or herself in compliance with the MMMA and the MRTMA, on a residentially zoned parcel or on an industrial zoned parcel, in an enclosed locked facility, inaccessible on all sides and equipped with locks or other security devices that permit access only by the registered qualifying patient and individuals 21 years of age or older.

(3)

All necessary building, electrical, plumbing, and mechanical permits shall be obtained for any alterations of any portion of the structure in support of or in association with the cultivation of marihuana.

(4)

The storage of any chemicals such as herbicides, pesticides, and fertilizers shall be subject to inspection and approval by the city's building department.

(5)

The separation of plant resin from a marihuana plant by butane extraction or any other method that utilizes a substance with a flashpoint below 100 degrees Fahrenheit in any public place, a motor vehicle, inside a residential structure, or the curtilage of a residential structure is prohibited.

(6)

If a room with windows is utilized as a marihuana-cultivation location, any lighting methods that exceed usual residential use between the hours of 11:00 p.m. and 6:00 a.m. shall employ shielding methods, without alteration to the exterior of the residence or dwelling unit, to prevent ambient light spillage that causes or creates a distraction or nuisance to adjacent residential properties.

(7)

If the registered patient, or individual 21 years or older, is not the owner of the premises, then written consent must be obtained from the property owner to ensure the owner's knowledge of the use of the premises as permitted by this section, and the registered patient and individual 21 years or older shall maintain written proof that the use of the property under this section is approved by the property owner.

(8)

No person other than the registered patient or individual 21 years or older shall be engaged or involved in the growing, processing, handling of marihuana.

(9)

Use of the registered patient's residential dwelling unit for medical marihuana or an individual 21 years or older for recreational marihuana related purposes shall be clearly incidental and subordinate to its use for residential purposes. Not more than 100 square feet of any residential dwelling unit and/or accessory structure on a residential lot shall be used for the growing, processing, and handling of medical or recreational marihuana. Any modifications to the dwelling unit made for the purpose of cultivating medical or recreational marihuana shall comply with all applicable building, electrical, mechanical, and fire safety code requirements, including all requisite permit applications and related inspections. No part of an accessory building, detached garage, pole barn, or similar building or structure shall be used for the growing, processing, or distribution of medical or recreational marihuana unless such building or structure has been inspected and approved for the building, electrical, mechanical, and fire safety requirements of such use and fits the definition of an enclosed, locked facility.

(10)

No equipment or process shall be used in growing, processing, or handling medical or recreational marihuana which creates noise, vibration, glare, light, fumes, odors, or electrical interference detectable to the normal senses at or beyond the property line of the registered patient's or individual's (over the age of 21) residential property. In case of electrical interference, no equipment or process shall be used which creates visual or audible interference with any radio, television, or similar receiver off the premises or causes fluctuation of line voltage off the premises.

(11)

The registered qualifying patient, individuals over the age of 21, and the owners, agents, and employees of the parcel at which marihuana for personal or medical use is present are responsible jointly and severally for compliance with this section.

4.

Registered primary caregivers. Any registered primary caregiver may acquire, possess, cultivate, manufacture, transfer, or transport medical marihuana in compliance with the MMMA, MCL 333.26421 et seq. as amended. Cultivation of medical marihuana by a registered primary caregiver as defined under the MMMA is prohibited in any zoning district, except the industrial district, and further subject to the following:

a.

A registered primary caregiver may only grow, cultivate, manufacture, process, and store marihuana on a parcel in the industrial district and in an enclosed locked facility.

b.

The registered primary caregiver is responsible for utilizing an enclosed locked facility upon the industrial zoned parcel, compliant with the MMMA for cultivating, growing, manufacturing, processing, and storing marihuana for medical use only. The enclosed locked facility utilized by the primary registered caregiver shall provide separation by fully enclosed walls, or fences, for plants that are grown on behalf of each registered qualifying patient, on whose behalf the registered primary caregiver is furnishing marihuana for medical use, so it is accessible only to the primary caregiver and registered patient. The processing and storing of medical marihuana is permitted only by registered primary caregivers and registered qualifying patients.

c.

The registered primary caregiver may grow up to a maximum of 72 plants, but no more than 12 plants for each individual registered qualifying patient as set forth and in compliance with the MMMA.

d.

The registered primary caregiver is responsible for providing the security necessary to assure that the growing marihuana and usable product are accessible for use only by the primary registered caregiver for transfer only to registered qualifying patients who are registered to the registered primary caregiver, and must fully comply with the provisions of the MMMA.

e.

Each parcel upon which enclosed locked facilities with marihuana for medical use are present must be a minimum of 500 feet from any parcel upon which any school, school facility, child care facility, place of worship, public park, or residential zoned or used property is situated. Measurement of the buffer shall be from property line to property line.

f.

A certificate of occupancy is required and must be obtained from the city before the presence of marihuana is allowed on the parcel.

g.

Marihuana plants grown outdoors in an enclosed, locked facility shall be subject to the requirements of this ordinance.

h.

The consumption, transfer, or use of marihuana in public, or a place opened to the public, is prohibited.

5.

Certificate required. The operations of a registered primary caregiver within an industrial zoning district shall only be permitted upon the issuance of a zoning certificate to cultivate medical marihuana. Such certificate is required to be renewed annually and is subject to inspections by the building and fire department as well as the police department for compliance with the provisions of this ordinance and for the issuance of the certificate and its renewals.

a.

A complete and accurate application shall be submitted on a form provided by the city along with submission of the application fee. The application fee and renewal fee shall be an amount determined by resolution of the city council.

b.

The certificate application shall include the name and address of the applicant; the address of the property; a copy of the current state registration card issued to the primary caregiver; a full description of the nature and types of equipment which will be used in marihuana cultivation and processing; and a description of the location at which the use will take place. The planning and zoning administrator may require additional information necessary to demonstrate compliance with all requirements. The planning and zoning administrator shall review the application to determine compliance with this ordinance, the MMMA, and the MRTMA and any applicable Michigan Regulatory Agency General Rules. A certificate shall be granted if the application demonstrates compliance with this ordinance and the MMMA.

c.

The use shall be maintained in compliance with the requirements of this ordinance and the MMMA. Any departure shall be grounds to revoke the certificate and take other lawful action. If a certificate is revoked, the applicant shall not engage in the activity unless and until a new zoning authorization to cultivate medical marihuana certificate is granted.

d.

Information treated as confidential under the MMMA, including the primary caregiver registry identification card and any information about qualifying patients associated with the primary caregiver, which is received by the city shall be maintained separately from public information submitted in support of the application. It shall not be distributed or otherwise made available to the public and shall not be subject to disclosure to anyone unless required by law.

6.

Suspension.

a.

Any certificate issued under this ordinance may be suspended for a period not to exceed 90 days by the city clerk upon the investigation, recommendation or approval of the police chief, fire chief or building department for a minor violation of this ordinance or any building or fire codes or regulations.

b.

Such suspension shall be effective ten days after written notice thereof is given to the certificate holder. Such notice shall inform the certificate holder of the reason for such suspension, the duration of such suspension, the beginning of such suspension, and the right to appeal under the provisions of this ordinance.

c.

Such notice may be given by delivering the notice to the certificate holder, by delivering the notice to the establishment, or by depositing the notice in the United States Mail, postage prepaid, certified or registered mail, return receipt requested, addressed to the certificate holder at the address stated on the application and such notice shall be deemed given upon deposit of the notice in the United States Mail as provided in this subsection.

d.

This section is cumulative of all other rules, regulations and laws. An appeal, as provided in this article, from any suspension under this article, shall automatically stay such suspension pending such appeal:

(1)

After the effective date of the suspension and if an appeal is not made; or

(2)

If an appeal is made and the suspension is upheld in whole or in part, then and in either of those events, the police chief shall have the authority to take possession of the certificate wheresoever it may be found and hold the license until the suspension period has expired.

7.

Revocation. Any certificate issued under this article may be revoked by the city clerk upon the investigation, recommendation or approval of the police chief, fire chief or building department for a significant violation of this ordinance or should the certificate holder no longer qualify for a certificate holder as an original applicant, or the certificate holder has been suspended three times within a ten-year period, or has misrepresented or withheld information on his original or renewal application. Any certificate issued under this article may be revoked by the city clerk upon the investigation, recommendation or approval of the police chief, fire chief or building official for a significant violation of this article.

a.

Such revocation shall be effective immediately after written notice thereof is given to the certificate holder. Such notice shall inform the certificate holder of the reason for such revocation and the right to appeal under the provisions of this article. Such notice may be given by delivering the notice to the certificate holder, by delivering the notice to the establishment, or by depositing the notice in the United States Mail, postage prepaid, certified or registered mail, return receipt requested, addressed to the certificate holder at the address stated on the application and such notice shall be deemed given upon deposit of the notice in the United States Mail as provided in this subsection.

b.

This section is cumulative of all other rules, regulations and laws. An appeal, as provided in this article, from any revocation under this article, shall automatically stay such revocation pending such appeal:

(1)

After the effective date of the revocation and if an appeal is not made; or

(2)

If an appeal is made and the revocation is upheld, then and in either of those events, the police chief shall have the authority to take possession of the certificate wheresoever it may be found.

8.

Appeals.

a.

Any person aggrieved by an action or decision of a city official regarding the issuance, suspension or revocation of a certificate required under this ordinance may, within 30 days thereafter, appeal to a hearing examiner appointed by the common council. The appeal of a suspension or revocation of a license shall be accompanied by the posting of $5,000.00 cash bond. If the revocation or suspension is set aside, then the bond is to be refunded in full. If the revocation or suspension is upheld, then the bond is forfeited to the city as a reasonable estimate of the expenses associated with the appeal process.

b.

The appeal to the hearing examiner shall be initiated by filing a written objection with the hearing examiner. The written objection shall state what the action or decision of the city official should have been and why. A copy of the document containing the notice of the action or decision complained of shall be attached to the written objection. Upon receipt of the written objection and attachment, the hearing examiner shall set the objection for a hearing to be held within the next 15 days and advise all parties of the date, time and place of hearing. The city attorney may appear and represent the interests of the city and/or its officials.

c.

At hearings before the hearing examiner, all witnesses will be sworn. The hearing examiner will hear the testimony of any witnesses called by the parties with relevant information.

d.

Additionally, the hearing examiner will review all documents and exhibits submitted to him by the parties. The hearing examiner will not be bound by formal rules of evidence and will control the evidence, reserving to himself the power to exclude testimony or exhibits he does not consider relevant.

e.

The hearing examiner will maintain an accurate record of the evidence adduced at the hearing.

f.

Within a reasonable amount of time after the close of the hearing, the hearing examiner will reduce to writing his report, which will consist of a finding of facts and his decision. The hearing examiner will file the original of his report with the city clerk, will keep one copy for himself, and will send one copy to the person aggrieved and one copy to the city attorney.

g.

If any party is dissatisfied with the hearing examiner's decision, he may, within five days from the date the hearing examiner filed his report, file a written objection with the common council. When such an objection is filed, the common council will place the matter on the agenda of the common council for review at the next meeting of the common council which is at least five days after the date of the filing of the objection. If the objection is filed by the city, notice that the matter is on the agenda will be sent to the applicant by mail. When the matter comes before common council, the common council will review the matter, considering such information as is in the hearing examiner's file and report and will either affirm, reverse, or modify the decision of the hearing examiner.

h.

As to an appeal taken to common council, the decision of the common council shall be final.

(Ord. No. 173, § 1, 7-13-2021)