A.

There is established a zoning board of appeals (ZBA) which shall perform its duties and exercise its powers as provided in the Michigan Zoning Enabling Act, Public Act 110 of 2006, and in such a way that the objectives of this title shall be observed, public safety secured, and substantial justice done.

B.

The ZBA shall consist of nine members appointed by the city council. One of the regular members of the ZBA may be a member of the planning commission. Appointments shall be as follows: appointments for the first year shall be for a period of one, two and three years, respectively, so as nearly as may be to provide for the appointment of an equal number each year, thereafter each member to hold office for the full three-year term. Each member of the ZBA shall have been a resident of the city for at least one year prior to the date of appointment and shall be a qualified and registered elector of the city on such date and throughout his or her tenure in office. Appointed members may be removed for cause by the city council only after consideration of written charges and a public hearing. Vacancies on the ZBA shall be filled by the city council for the remainder of the unexpired term. The ZBA shall annually elect its own chairperson and vice-chairperson.

C.

The city council may, if it desires, appoint two alternate members for three-year terms. One or both alternate members may be called by the chairman, or in the absence of the chairman by the vice chairman, or, in the absence of the vice chairman, by the secretary to sit as a regular member of the ZBA if a regular member is absent from or unable to attend two or more consecutive meetings of the ZBA or absent from or unable to attend the ZBA for a period of more than thirty consecutive days. An alternate member may also be called to serve in the place of a regular member for the purpose of reaching a decision on a case in which the regular member has abstained for reason of conflict of interest. The alternate member having been appointed shall serve in the case until a final decision has been made. The alternate member shall have the same voting rights a regular member.

(Ord. 08-05 § 1 (part), 2008)

All meetings of the ZBA shall be held at the call of the chairman and at such times as the ZBA may determine. All hearings conducted by the ZBA shall be open to the public. The city clerk, or a designated representative, shall keep minutes of these proceedings showing the vote of each member upon each question, or if absent or failing to vote, indicating such fact, and shall also keep records of its hearings and other official action. Five members of the ZBA shall constitute a quorum for the conduct of its business. The ZBA shall have the power to subpoena and require the attendance of witnesses, administer oaths, compel testimony and the production of books, papers, files and other evidence pertinent to the matters before it.

(Ord. 08-05 § 1 (part), 2008)

A.

The ZBA shall hear only those matters which it is authorized to hear by the Michigan Zoning Enabling Act, Public Act 110 of 2006, and render its decision based upon the criteria contained in this chapter. The ZBA shall hear the following applications in accordance with the indicated standards.

B.

Administrative Appeals.

1.

The ZBA shall hear and decide appeals where it is alleged that there is an error in fact, judgment, procedure, or interpretation in any order, requirement, permit, or decision made by the building official in enforcing the provisions of this title. The applicant appealing the order, requirement, permit or decision shall be required to file the request for appeal to the ZBA within thirty days of the decision. The ZBA shall not have the authority to hear an appeal of a decision by the planning commission or the city council. In order to be aggrieved by a decision of the city, the person or other entity making the appeal must have a property interest and sufficient standing as recognized under the law to challenge the decision.

2.

Standards for Review of Appeals to Administrative Decisions. An appeal to an administrative decision may be reversed by the ZBA only if it finds that the action or decision appealed meets one or more of the following requirements:

a.

Was arbitrary or capricious;

b.

Was based on an erroneous finding of a material fact;

c.

Constituted an abuse of discretion;

d.

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

C.

Interpretations.

1.

The ZBA has the power to make an interpretation of the provisions of this title when it is alleged that certain provisions are not clear or that they could have more than one meaning. In deciding upon the request, the ZBA shall ensure that its interpretation is consistent with the intent and purpose of this chapter and the chapter in which the language in question is contained.

2.

The ZBA may make a determination of the precise location of the boundary lines between zoning districts in accordance with Chapter 18.02, Zoning Districts and Map and records, surveys, maps, and aerial photographs.

3.

The ZBA may make a determination of which zoning district to allow a use not currently listed as a permitted or special land use in any zoning district. If the use is not addressed in the zoning ordinance, the ZBA shall select the use listed in the zoning ordinance that most closely resembles the proposed use. Once the use is determined, the proposed use shall comply with any use standards that apply to the similar use. The determination as to whether a proposed use is similar in nature and class to another permitted or special land use within a district should be considered as an expansion of the use regulations, not a variance applying to a particular situation.

D.

Special Land Uses and Planned Unit Developments.

1.

The ZBA may grant dimensional or other site plan related variances (e.g., lot dimensions, setbacks, building height, lot coverage, parking, etc.) for special land uses. The ZBA shall not have the power to reverse or modify the planning commission's decision to approve or deny a special land use permit nor grant variances to any conditions placed on special land use approval.

2.

The ZBA shall not have the authority to grant variances to the PUD regulations of Chapter 18.11 or any requirements placed on PUD approval. However, the ZBA shall have the authority to hear and decide appeal requests by individual lot owners for variances from other sections of the zoning ordinance following final approval of the PUD, provided such variances do not affect the terms or conditions of the original PUD approval or constitute a variance to the PUD regulations of Chapter 18.11.

E.

Dimensional and Other Non-Use Variances.

1.

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

2.

Non-Use Variance Standards for Review. A non-use variance may be allowed by the ZBA only in cases where the applicant has shown there is reasonable evidence of practical difficulty in the official record of the hearing and that all of the following conditions are met:

a.

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

i.

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

ii.

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

iii.

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

iv.

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

b.

Practical Difficulty/Substantial Justice. Compliance with the strict letter of the restrictions governing area, setbacks, frontage, height, bulk, density, or other dimensional provisions would unreasonably prevent the use of the property. Granting of a requested variance or appeal would do substantial justice to the applicant as well as to other property owners in the district and such variance is necessary for the preservation and enjoyment of a substantial property right similar to that possessed by other properties in the same zoning district and in the vicinity. Any variance granted shall be the minimum necessary to allow the preservation of these substantial property rights. The possibility of increased financial return shall not of itself be deemed sufficient to warrant a variance.

c.

Impact on Surrounding Neighborhood. The variance will not be significantly detrimental to adjacent property and the surrounding neighborhood or interfere with or discourage the appropriate development, continued use, or value of adjacent properties and the surrounding neighborhood.

d.

Public Safety and Welfare. The granting of the variance will not impair an adequate supply of light and air to adjacent property or unreasonably increase the congestion in public streets, or increase the danger of fire or endanger the public safety, comfort, morals or welfare of the inhabitants of the city.

e.

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

F.

Use Variances.

1.

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

a.

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

b.

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

c.

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

d.

Applicant's problem has not been self-created;

e.

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

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

2.

Use Variance—Pre-Hearing Conference.

a.

Prior to the scheduling of a hearing, the applicant shall contact the building official for the purpose of scheduling a pre-hearing conference.

b.

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

i.

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

ii.

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

iii.

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

iv.

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

c.

The building official shall determine who should be present at the pre-hearing conference based upon the application submitted, and taking into consideration the discussion with the applicant or the applicant's representative.

d.

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

3.

Use Variance—Hearing Procedure.

a.

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

b.

Manner of Presentation.

i.

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

ii.

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

iii.

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

iv.

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

v.

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

vi.

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

vii.

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

4.

Use Variance—Decision of the Zoning Board of Appeals.

a.

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

b.

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

c.

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

d.

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

5.

Use Variance Standards for Review. A use variance may be allowed by the ZBA only in cases where there is reasonable evidence of unnecessary hardship in the official record of the hearing, and that all of the following conditions are met:

a.

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

b.

Unique Circumstances. That the condition or situation of the specific parcel of property or the intended use of such property for which the variance is sought is unique to that property and not commonly present in the general vicinity or in the zone district. The applicant must prove that there are certain features or conditions of the land that are not generally applicable throughout the zone and that these features make it impossible to earn a reasonable return without some adjustment. Such unique conditions or situations include:

i.

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

ii.

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

iii.

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

iv.

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

c.

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

d.

Capacity of Roads, Infrastructure and Public Services. The capacity and operations of public roads, utilities, other facilities and services will not be significantly compromised.

e.

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

(Ord. 08-05 § 1 (part), 2008)

A.

Area or Dimensional Variance Votes. A concurring vote of a majority of the members of the ZBA shall be required to grant a variance to the requirements of this title.

B.

Use Variance Votes. A concurring vote of two-thirds of the members of the ZBA shall be necessary to grant a variance from uses of land if permitted by this title. Nothing contained in this title shall be construed to give or grant to the ZBA the power or authority to alter or change this title or the zoning map, such power and authority being reserved to the city council in the manner provided by law.

C.

Appeal. In exercising the above powers, the ZBA may reverse or affirm wholly or partly, or may modify the order, requirement, decision or determination appealed from and may make such order, requirement, decision or determination as ought to be made, and to that end shall have all the powers of the building official from whom the appeal is taken. A concurring vote of a majority of the members of the ZBA shall be required to reverse an order, decisions, or determination of an administrative official.

D.

Decision Effective. The decision of the ZBA shall be final upon the earlier of:

1.

Issuance of a written decision signed by the authorized representative of the ZBA.

2.

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

E.

Conditions. In granting a variance the ZBA may attach conditions regarding the location, character, and other features of the proposed uses as it may deem reasonable in furtherance of the purpose of this title. Performance guarantees shall be required to ensure that conditions attached to a variance are complied with in accordance with Section 18.21.100.

F.

Validity of Variance. The order of the ZBA authorizing the erection or alteration of a building shall expire in one year, unless a building permit for such erection or alteration is started and proceeds to completion in accordance with the terms of such permit.

G.

Validity of Use Variance. The order of the ZBA authorizing a use of a building or premises shall expire in one year, unless such use is established within such period; provided, however, that where such use permitted is dependent upon the erection or alteration of a building, permit for said erection or alteration is obtained within such period and such erection or alteration is started and proceeds to completion in accordance with the terms of such permit.

H.

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

I.

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

J.

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

(Ord. 08-05 § 1 (part), 2008)

The decision of the ZBA shall be final. Appeals from decisions of the ZBA shall be to the circuit court, as provided by law. An appeal from a decision of a ZBA shall be filed within thirty days after the ZBA issues its decision in writing signed by the chairperson, or within twenty-one days after the ZBA approves the minutes of its decision.

(Ord. 08-05 § 1 (part), 2008)

Editor's note— Ord. No. 2020-02, § 4, adopted July 14, 2020, repealed § 18.22.060, which pertained to temporary use permits and derived from Ord. 08-05 § 1 (part), 2008.

The city council may, from time to time, prescribe and amend by resolution a reasonable schedule of fees to be charged to applicants for appeals to the ZBA. At the time the notice for appeal is filed, the fee shall be paid to the secretary of the ZBA, which the secretary shall forthwith pay over to the city treasurer to the credit of the general revenue fund of the city.

(Ord. 08-05 § 1 (part), 2008)