In order that the objectives of this ordinance be fully and equitably achieved; that there be a means of interpreting this ordinance, that adequate but controlled flexibility in the form of variances be provided in the application of this ordinance, that the health, safety, and welfare of the public be secured, and that justice be done, the zoning board of appeals and its powers and duties are hereby re-established, re-stated, and modified as set forth in the following sections.

(Ord. No. 177, § 3, 7-2-01)

The membership of the zoning board of appeals shall be reduced from nine (9) members to five (5) members. The members shall be appointed by the mayor and approved by the city council. The members shall consist of one (1) member from the city council, one (1) member from the planning commission, and three (3) residents from the city at large. The three (3) resident members shall not be members of the city council, planning commission, or employees of the city. Members shall be appointed for three-year terms, provided the term of the planning commission member shall terminate if his or her term on the planning commission terminates. A person who is appointed to the board to replace a member who did not complete a term shall serve initially only for the balance of time remaining in that term. The city council may also approve, at its discretion, up to two (2) alternate members of the board to serve three-year terms. If alternate members are appointed, they shall be called on a rotating basis as determined by the chairman of the board. Alternate members may be called on to serve as a regular member of the board, in the absence of a regular member, or to reach a decision in a matter where a member has chosen to abstain from voting due to a conflict of interest. Alternate members shall have the same voting rights as a regular member, and if used in a matter, shall continue to serve in that matter until a final decision is made.

(Ord. No. 177, § 3, 7-2-01)

(a)

Rules of procedure. The board shall adopt its own rules of procedure as may be necessary to conduct its meetings properly.

(b)

Majority vote. The concurring vote of a majority of the members of the board shall be necessary to reverse any order, requirement, decision, or determination of the zoning administrator, to decide in favor of the applicant any matter upon which they are required to pass under this ordinance; or to effect any variation in this ordinance, except that a concurring vote of two-thirds (⅔) of the members shall be necessary to grant a variance involving the use of land.

(c)

Officers. The board shall appoint a chair, vice-chair, and secretary, as prescribed in their rules of procedure.

(d)

Meetings.

(1)

Meetings shall be held at the call of the chairman and at such other times as the board shall specify in its rules of procedure.

(2)

The business of the board shall be conducted in compliance with the Open Meetings Act, Act 267 of the Public Acts of 1976 (MCL 15.261 to 15.275), as amended.

(e)

Minutes. Minutes shall be taken of each meeting. Minutes shall include the dates, time, place, members absent, members present, any decisions made at the meeting, and all roll call votes taken at the meeting. The minutes shall be filed with the secretary of the board and in the office of the city clerk.

(Ord. No. 177, § 3, 7-2-01)

(a)

Interpretations.

(1)

The board shall hear and decide upon requests for the interpretation of the provisions of this ordinance.

(2)

The board shall determine the precise location of boundary lines between zoning districts when such boundary lines may be in question.

(b)

Appeals. The board shall hear and decide appeals where it is alleged by an aggrieved party or by an official, department, bureau or board of the city, that there is an error in any order, requirement, permit, decision, or refusal made by the zoning administrator in the administration and enforcement of this ordinance.

(c)

Variances. The board shall hear and decide requests for variances from the requirements of this ordinance.

(Ord. No. 177, § 3, 7-2-01)

(a)

The board shall not have any authority other than that expressly conferred upon it by this ordinance and state law.

(b)

The board shall not hear any appeal regarding special uses.

(c)

The board shall not hear any appeal regarding planned unit developments.

(Ord. No. 177, § 3, 7-2-01)

(a)

Eligibility for filing an appeal. An appeal may be taken to the board by any person aggrieved, including a person, firm, or corporation, or by any officer, department, board, or bureau affected by a decision made by the zoning administrator in the administration of this ordinance.

(b)

Filing of appeal. All appeals shall be filed with the zoning administrator and shall identify the sections of the ordinance involved in the appeal and shall state the grounds for the appeal.

(c)

Fees for appeal. A fee, as established by the city council from time to time, shall be paid to the zoning administrator at the time of filing an appeal. The purpose of the fee is to recover any necessary advertisement and investigation expenses incurred by the board in connection with the appeal.

(d)

Time for filing an appeal. An appeal shall be filed with the zoning administrator within thirty (30) days of the date of the decision or order being appealed.

(e)

Stay. An appeal stays all proceedings in furtherance of the action appealed from unless the zoning administrator certifies to the board, after the appeal is filed, that by reason of facts stated in the certificate, a stay would in the opinion of the zoning administrator cause imminent peril to life or property. If such a certification is filed, the proceedings shall only be stayed by a restraining order. A restraining order may be granted by the board of appeals or by the circuit court, on application, on notice to the zoning administrator and on due cause shown.

(f)

Distribution of appeal materials to zoning board of appeals. The zoning administrator shall transmit to the board all of the papers constituting the record upon which the appeal is taken.

(g)

Date and notice of hearing. The board shall fix a reasonable time for the hearing of the appeal. The board shall give due notice of the hearing to the persons to whom real property within three hundred (300) feet of the premises in question is assessed, and to the occupants of single-and two-family dwellings within three hundred (300) feet. The notice shall be delivered personally or by mail addressed to the respective owners and tenants at the address given in the last assessment roll. If the tenant's name is not known, the term occupant may be used.

(h)

Representation at hearing. At the hearing, a party may appear in person, by agent, or by legal representative.

(i)

Decisions. The board may reverse, affirm, or modify the order, requirement, decision, or determination appealed. The board shall make any order, requirement, decision, or determination as in its opinion ought to be made in the premises, and to that end shall have all the powers of the zoning administrator or body from whom the appeal is taken. If an affirmative decision is made, the board may attach reasonable conditions to the decision.

(j)

Time. The board shall render a decision within sixty (60) days after the hearing, and in any event not less than ninety (90) days from the date the appeal was filed with the zoning administrator.

(k)

Final authority. A decision of the board shall be final. However, a person having an interest affected by the zoning ordinance may appeal to the circuit court.

(Ord. No. 177, § 3, 7-2-01)

(a)

Non-use or dimensional variances. The board may authorize a non-use or dimensional variance if it finds, based upon material, competent, and substantial evidence on the record, that all of the following conditions are satisfied:

(1)

That unless the variance is granted, there will be practical difficulty resulting to the applicant in carrying out the strict letter of the ordinance.

a.

An example of practical difficulty would be if dimensional zoning requirements could not be met on an existing lot due to narrowness, irregular shape, or location of natural features such as wetlands or flood plains on the site.

b.

Demonstration of practical difficulty should have a bearing on a condition relative to the site, or use upon the site, and not to the applicant personally. Economic hardship or optimal profit potential does not constitute practical difficulty.

(2)

That the practical difficulty is due to unique circumstances peculiar to the property and not to general neighborhood conditions and shall not alter the essential character of the area.

(3)

That the practical difficulty was not created by the applicant or any person who has or had an interest in the property.

(4)

That the granting of the variance will result in the spirit of the ordinance being observed, public safety being secured, and substantial justice being done for both applicant and other property owners in the district. Substantial justice, as it relates to the applicant, shall mean permitting the applicant substantial property rights, such as those enjoyed by adjoining properties in the same zoning district. Substantial justice, as it relates to other property owners in the district, shall mean trying to ensure that special development rights are not bestowed on the applicant that are not enjoyed by the other property owners in the same district, or that the granting of the applicant's variance does not result in substantial adverse impacts on adjoining properties.

(b)

Use variances. The board may authorize a variance in the use of property if it finds, based upon material, competent, and substantial evidence on the record, that all of the following conditions are satisfied:

(1)

That unless the variance is granted, there will be unnecessary hardship resulting to the applicant in carrying out the strict letter of the ordinance. Unnecessary hardship is defined as when the property cannot be reasonably used for any purposes permitted in that zoning district. An inability to maximize profit potential does not constitute unnecessary hardship.

(2)

That the unnecessary hardship must be due to unique circumstances peculiar to the property and not to general neighborhood conditions and shall not alter the essential character of the area.

(3)

That the applicant or any person who has or had an interest in the property did not create the problem for which the variance is being sought.

(4)

That the granting of the variance will result in the spirit of the ordinance being observed, public safety being secured, and substantial justice being done.

(c)

In approving a variance, the board shall only approve the minimum variance necessary to relieve the practical difficulty or unnecessary hardship.

(Ord. No. 177, § 3, 7-2-01)

The board shall record in the minutes of any variance hearing:

(1)

The decision made, including the vote;

(2)

The conditions, if any, which are attached to the variance;

(3)

For variances approved, a statement indicating the satisfaction of all required conditions;

(4)

For variances denied, a statement of the reasons for denial.

(Ord. No. 177, § 3, 7-2-01)

The construction or activity authorized by a variance approved by the board shall commence within one year of the date of the decision approving the variance, or the variance shall become void.

(Ord. No. 177, § 3, 7-2-01)

No application for a variance which has been denied wholly or in part by the board shall be resubmitted for rehearing for a period of one year from the date of the last denial, except on grounds of newly-discovered evidence or proof of changed conditions found to be valid by the board.

(Ord. No. 177, § 3, 7-2-01)