1280.03 ZONING BOARD OF APPEALS.
   (a)   Powers; Membership; Compensation.
      (1)   The Zoning Board of Appeals for the City, having been heretofore created in accordance with Public Act 207 of 1921, repealed and replaced by the Michigan Zoning Enabling Act, Public Act 110 of 2006, as amended, being MCL 125.3101 et seq., is hereby continued and, in addition to the general duties and powers conferred upon it by law, may exercise such powers as are conferred upon it by the Charter and this Zoning Code. The Board shall be organized as provided in this chapter.
      (2)   The word “Board,” when used in this Zoning Code, shall be construed to mean the Zoning Board of Appeals. The Board shall consist of seven members appointed by a majority vote of the City Commission. The members shall serve for terms as follows: Two for one year, two for two years and three for three years, in the first instance, and thereafter all appointments shall be for three years each, except for members serving because of their membership on the Planning Commission and/or the City Commission, whose terms shall be limited to the time they are members of those bodies. One regular member of the Board may be a member of the City Planning Commission. The remaining regular members of a Zoning Board of Appeals, and any alternate members under subsection (3) below, shall be selected from the electors of the City of Battle Creek residing within the City of Battle Creek. The members selected shall be representative of the population distribution and of the various interests present in the City of Battle Creek. One regular or alternate member of the Board may be a member of the City Commission; however, such a member shall not serve as Chairperson of the Board. The Chairperson of the Board shall be elected annually by the members of the Board. Vacancies shall be filled by the City Commission for the unexpired term. A successor shall be appointed not more than one month after the term of the preceding member has expired. A vacancy on the Board shall be filled for the remainder of the unexpired term in the same manner as the original appointment.
      (3)   The City Commission may appoint, in accordance with procedures specified in this Zoning Code, not more than two alternate members for the same term as regular members of the Board. The alternate members may be called, as specified in this Zoning Code, to sit as regular members of the Board if a regular member is absent from or unable to attend two or more consecutive meetings, or for a period of more than thirty consecutive days. An alternate member may also be called to serve for the purpose of reaching a decision on a case in which the regular member has abstained because of a conflict of interest. The alternate member appointed shall serve in the case until a final decision has been made. The alternate member shall have the same voting rights as a regular member of the Board.
      (4)   An employee or contractor of the City Commission may not serve as a member of the Zoning Board of Appeals.
      (5)   The City Commission may remove a member of the Board for inefficiency, misfeasance, malfeasance, or nonfeasance in office upon written charges and after a public hearing. A Board member shall disqualify theirself from a vote in which the member has a conflict of interest. Failure of a member to disqualify theirself from a vote in which the member has a conflict of interest constitutes malfeasance in office.
      (6)   The Board shall not conduct business unless a majority of the regular members of the Board are present.
      (7)   A member of the Board who is also a member of the Planning Commission or the City 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 or the City Commission. However, the member may consider and vote on other unrelated matters involving the same property.
   (b)   Meetings; Rules of Procedure; Records.
      (1)   Meetings of the Zoning Board of Appeals shall be held at the call of the Chairperson and at such other times as the Board in its rules of procedure may specify. There shall be a fixed place for meetings and all meetings shall be open to the public. The Chairperson or, in their absence, the acting Chairperson may administer oaths and compel the attendance of witnesses.
      (2)   The Board shall adopt its own rules of procedure and maintain a public record of its proceedings which shall be filed in the office of the City Clerk.
   (c)   Appeals to Zoning Board of Appeals.
      (1)   An appeal may be taken to the Zoning Board of Appeals by a person aggrieved or by an officer, department, board, or bureau of this state or the City. In addition, a variance in the zoning ordinance, may be applied for and granted under section 4 of the Uniform Condemnation Procedures Act, Public Act 87 of 1980, being MCL, 213.54, and as provided for under the Michigan Zoning Enabling Act. The Zoning Board of Appeals shall state the grounds of any determination made by the Board.
      (2)   Such appeal shall be taken within such time as is prescribed by the Board by general rule, by filing with the body or officer from whom the appeal is taken and with the Zoning Board of Appeals a notice of appeal, specifying the grounds for the appeal. The body or officer from whom the appeal is taken shall immediately transmit to the Board all of the papers constituting the record upon which the action appealed from was taken.
      (3)   An appeal shall stay all proceedings in furtherance of the action appealed from, unless the Zoning Administrator or their designee certifies to the Board, after the notice of appeal has been filed, that by reason of facts stated in the certificate a stay would, in the Zoning Administrator's opinion, cause imminent peril to life or property, in which case the proceedings shall not be stayed otherwise than by a restraining order, all of the papers constituting the record upon which the appeal was taken.
      (4)   The Board shall fix a reasonable time for the hearing of an appeal and notice shall be given as provided in Section 1281.01(c)(2).
      (5)   At a hearing under this section, a party may appear personally or by attorney. The Zoning Board of Appeals may reverse or affirm, wholly or partly, or modify the order, requirement, decision, or determination and may issue or direct the issuance of a permit.
      (6)   Fees, in accordance with a schedule enacted from time to time by the City Commission, by resolution, shall be paid to the Department at the time the notice of appeal is filed.
   (d)   Jurisdiction, Voting Requirements for Determinations.
      (1)   The Zoning Board of Appeals shall have the following powers:
         A.   To hear and decide questions that arise in the administration of the zoning ordinance, including the interpretation of zoning maps;
         B.   To hear and decide on matters referred to the Board or upon which the Board is required to pass under a zoning ordinance.
         C.   To hear and decide appeals from and review any administrative order, requirement, decision, or determination made by an administrative official or body charged with enforcement of this Zoning Code; and
         D.   To grant exceptions in the following instances:
            1.   Permit the extension of a district where the boundary line of a district divided a lot held in single ownership at the time of passage of this Zoning Code (Ordinance 10-2020, adopted on November 24, 2020);
            2.   Interpret this Zoning Code in such a way as to carry out the intent and purpose of the zoning district map, where the street layout existing on the ground varies from that shown on the map;
            3.   Permit the reconstruction of a nonconforming building which has been damaged by explosion, fire, act of God or the public enemy, to the extent of more than 50% of its insurable value, where the Board finds some compelling necessity requiring a continuance of the nonconforming use, and the primary purpose of continuing the nonconforming use is not to continue a monopoly; and
            4.   Waive or reduce the parking and loading requirements in the multiple dwelling, commercial or industrial districts whenever the character or use of the building is such as to make unnecessary the full provision of parking or loading facilities, or where such regulations would impose an unreasonable hardship upon the use of the lot, as contrasted with merely granting an advantage or convenience. The Board may waive or reduce the requirements of off-street parking whenever any property lies within a 300-foot radius of a publicly owned parking lot.
      (2)   The Board shall have the authority to grant the following variations:
         A.   Nonuse. If there are practical difficulties for nonuse variances relating to the construction, structural changes, or alterations of buildings or structures related to dimensional requirements of the zoning ordinance or to any other nonuse-related standard in the ordinance in the way of carrying out the strict letter of the zoning ordinance, then the Board may grant a variance so that the spirit of the zoning ordinance is observed, public safety secured, and substantial justice is done. The Board may impose conditions as otherwise allowed under the Michigan Zoning Enabling Act; and
         B.   Use. If there is an unnecessary hardship in the way of carrying out the strict letter of the zoning ordinance, then the Board may grant a use variance in accordance with this section, so that the spirit of the zoning ordinance is observed, public safety secured, and substantial justice done. The Board may impose conditions as otherwise allowed under the Michigan Zoning Enabling Act.
      (3)   Variance standards. In consideration of all appeals and proposed exceptions to or variations from this Zoning Code, the Board shall, before making any such exceptions or variations, in a specific case, first determine that the applicant has met all of the following conditions as set out for the specific type of variance requested:
         A.   Nonuse (dimensional) variances.
            1.   When it can be shown that a practical difficulty would, in fact, exist if the strict non-use requirements of this Zoning Code (e.g., lot area, width, setbacks, building height, etc.) were applied to a specific building project, the Board may grant a variance from these requirements. The practical difficulty from a failure to grant the variance must include substantially more than a mere inconvenience or a mere inability to attain a higher financial return.
            2.   The practical difficulty must be exceptional and peculiar to the subject parcel of land which do not generally exist throughout the City and may not be self-imposed or the result of an earlier action by the applicant. If the parcel of land could be reasonably built upon in conformance with the requirements of this Zoning Code by simply relocating or redesigning the structure(s), then a variance shall not be granted.
            3.   A variance shall not be granted when it will alter or conflict with the intent of this Zoning Code considering the public benefits intended to be secured by this Zoning Code and the rights of others whose property would be affected by the allowance of the variance.
            4.   Any variance granted shall be the minimum necessary to provide relief for the practical difficulty of the applicant.
         B.   Use Variances.
            1.   The building, structure or land cannot be reasonably used in a manner consistent with the uses allowed in the zoning district in which the property is located.
            2.   The condition or situation of the specific piece of property or the intended use of the property is unique to that property and not commonly present in the general vicinity or zoning district. Unique conditions or situations may include exceptional narrowness, shallowness, or shape of the property that existed when the applicable zoning ordinance provision took effect: exceptional topographic conditions or other extraordinary situation on the land, building, or structure: or the use or development of the property immediately adjoining the property in question; or any other physical situation on the land, building or structure deemed by the Board to be extraordinary.
            3.   The proposed use, if granted, will not alter the essential character of the neighborhood or the intent of the master plan.
            4.   The immediate hardship cited as the cause for the variance was not created by any affirmative action by the applicant.
   (e)   Finality of the Decision of Board; Appeal to Circuit Court.
      (1)   The decision of the Board shall be final. A party aggrieved by the decision may appeal to the Calhoun County Circuit Court. The burden of proof shall be on the appealing party.
      (2)   The Circuit Court shall review the record and decision to ensure the decision meets all of the following requirements:
         A.   Complies with the constitution and laws of the state.
         B.   Is based upon proper procedure.
         C.   Is supported by competent, material, and substantial evidence on the record.
         D.   Represents the reasonable exercise of discretion granted by law to the Board.
      (3)   If the Circuit Court finds the record inadequate to make the review required by this section or finds that additional material evidence exists that with good reason was not presented at the hearing before the Board, then the Court shall order further proceedings on conditions the Court considers proper. The Board may modify its findings and decision as a result of the new proceedings or may affirm the original decision. The supplementary record and decision shall be filed with the Court. The Court may affirm, reverse, or modify the decision. The Court may make other orders as justice requires.
      (4)   An appeal from a decision of the Board shall be filed within thirty days after the Board issues its decision in writing signed by the chairperson, if there is a chairperson, or signed by the members of the Board if there is no chairperson, or within twenty-one days after the Board approves the minutes of its decision.
(Ord. 10-2020.Passed 11-24-20.)