(a) Initiation. The City Commission may amend, supplement or change the regulations or the district boundaries of this Zoning Code pursuant to the authority and according to the procedure set forth in The Michigan Zoning Enabling Act, Public Act 110 of 2006, as amended, being MCL 125.3101 et seq. Changes in the text of this Zoning Code may be proposed by:
(1) The City Commission;
(2) The Planning Commission; or
(3) Any interested person or organization through a petition, which shall not be initiated for the same property more often than once every twelve months.
Changes in zoning district boundaries may be proposed by:
(1) The City Commission;
(2) The Planning Commission;
(3) The owner(s) of the premises concerned; or
(4)
The designated agent of a person having an ownership interest in the property.
(b) Definition. An amendment to this Zoning Code shall be deemed to be any change to the text or to the official map, including:
(1) Petitions for zoning ordinance amendments; or
(2) Conditional rezonings.
(c) Amendment Review Procedures. The amendment, be it a text or a map amendment, and application materials shall be prepared in accordance with the provisions of this section, and shall be reviewed in accordance with the following procedure. Amendments or application materials that do not meet the stipulated requirements shall be considered incomplete and shall not be eligible for consideration by the Planning Commission.
(1) Technical review. Prior to Planning Commission consideration, the proposed amendment and application materials shall be distributed to appropriate City departments and divisions and staff for review and comment. The proposed amendment and application materials may also be distributed to applicable outside agencies and designated City consultants for review.
(2) Public hearing. A public hearing shall be held for all proposed amendments in accordance with the procedures set forth in the Michigan Zoning Enabling Act, Public Act 110 of 2006, as amended, being MCL 125.3101 et seq., as summarized below:
A. On any amendment to this Zoning Code, the Planning Commission shall hold a public hearing prior to the amendment being referred to the City Commission for action. A record of the comments received at the public hearing shall become a part of the Planning Commission report and recommendation to the City Commission. The following requirements shall pertain to public hearings held before the Planning Commission:
1. Not less than fifteen-day notice of the date, time and place of the hearing shall be published in a newspaper of general circulation in the City.
2. Not less than fifteen-day notice of the date, time and place of the hearing shall be given, by regular mail, to each public utility company and to each railroad company owning or operating any public utility or railroad within the City that registers its name and mailing address with the City Clerk for the purpose of receiving such notices.
3. Not less than fifteen-day notice shall be given, by regular mail, to the owners of property that is the subject of the request. Notice shall also be given to all persons to whom real property is assessed within 300 feet of the subject property affected by the amendment, as listed in the most current assessment roll and to the occupants of all structures with 300 feet of the subject property regardless whether the property or structure is located in the zoning jurisdiction. Notification need not be given to more than one occupant of a structure, except that if a structure contains more than one dwelling unit or spatial area owned or leased by different persons, one occupant of each unit or spatial area shall be given notice. If a single structure contains more than four dwelling units or other distinct spatial areas owned or leased by different persons, then notice may be given to the manager or owner of the structure, who shall be requested to post the notice at the primary entrance to the structure.
4. The notice under subsection 3. above is considered to be given when personally delivered or when deposited during normal business hours for delivery with the United States postal service or other public or private delivery service. The notice shall be given not less than fifteen days before the date the request will be considered. If the name of the occupant is not known, then the term “occupant” may be used for the intended recipient of the notice. However, failure of property owners to receive such notice, shall not invalidate the amendment.
5. A notice under this section shall do all of the following:
a. Describe the nature of the request.
b. Indicate the property that is the subject of the request. The notice shall include a listing of all existing street addresses within the property. Street addresses do not need to be created and listed if no such addresses currently exist within the property. If there are no street addresses, then other means of identification may be used.
c. State when and where the request will be considered.
d. Indicate when and where written comments will be received concerning the request.
6. For any group of adjacent properties numbering eleven or more that is proposed for rezoning, the requirements of above subsection iii), and the requirement of above subsection 5.b., that street addresses be listed do not apply to that group of adjacent properties.
(3) Planning Commission consideration of proposed amendment. The Planning Commission shall review the proposed amendment, together with any reports and recommendations from staff, consultants, other reviewing agencies, and any public comments. The Planning Commission shall identify and evaluate all factors relevant to the petition, including the appropriate criteria listed in this section, and shall report its findings and recommendation to the City Commission.
(4) City Commission action on proposed amendment. Upon receipt of the report and recommendation from the Planning Commission, the City Commission may approve or deny the proposed amendment. If determined to be necessary, the City Commission may refer the amendment back to the Planning Commission for further consideration. In the case of an amendment to the official zoning map, the City Commission shall approve or deny the amendment, based upon its consideration of the criteria contained in this Zoning Code.
A. The City Commission, upon receipt of the Planning Commission study and report, shall publish a notice indicating the proposed amendment, proposed use and affected property in a newspaper of general circulation in the City. Such notice shall be published at least five days before the City Commission meeting, and shall indicate the time, date and place of such meeting.
(d) Standards of Review for Amendments. In considering any petition for an amendment to the text of this Zoning Code or to the zoning map, the Planning Commission and City Commission shall consider the following criteria that apply to the application in making findings, recommendations, and a decision. The Planning Commission and City Commission may also take into account other factors or considerations that are applicable to the application but are not listed below.
(1) Consistency with the goals, policies and objectives of the master plan and any sub-area plans. If conditions have changed since the master plan was adopted, consistency with recent development trends in the area shall be considered.
(2) Consistency with the basic intent and purpose of this Zoning Code.
(3) The capability of the street system to safely and efficiently accommodate the expected traffic generated by uses permitted in the requested zoning district.
(4) The capacity of the City's utilities and services are sufficient to accommodate the uses permitted in the requested district without compromising the health, safety, and welfare of the City.
(5) That conditions have changed since the Zoning Code was adopted or there was an error in the Zoning Code that justifies the amendment.
(6) That the amendment will not be expected to result in exclusionary zoning or spot zoning.
(7) If a rezoning is requested, compatibility of the site's physical, geological, hydrological and other environmental features with the uses permitted in the proposed zoning district.
(8) If a rezoning is requested, compatibility of all the potential uses allowed in the proposed zoning district with surrounding uses and zoning in terms of land suitability, impacts on the environment, density, nature of use, traffic impacts, aesthetics, infrastructure and potential influence on property values.
(9) If a rezoning is requested, the boundaries of the requested rezoning district will be reasonable in relationship to surrounding zoning districts, and construction on the site will be able to meet the dimensional regulations for the requested zoning district.
(10) If a rezoning is requested, the requested zoning district is considered to be more appropriate from the City's perspective than another zoning district.
(11) If a rezoning is requested to allow for a specific use, rezoning the land is considered to be more appropriate than amending the list of permitted or special land uses in the current zoning district to allow the use.
(12) If a rezoning is requested, the requested rezoning will not create an isolated or incompatible zone in the neighborhood.
(e) Notice of Adoption of Amendment. Following adoption of an amendment by the City Commission, one notice of adoption shall be filed with the City Clerk and one notice shall be published in a newspaper of general circulation in the City within fifteen days after adoption, in accordance with the Michigan Zoning Enabling Act, Public Act 110 of 2006, as amended, being MCL 125.3101 et seq. A record of all amendments shall be maintained by the City Clerk. A Zoning Map shall be maintained by the City Clerk, which shall identify all map amendments. The required notice of adoption shall be maintained by the Planning and Zoning Administrator and include all of the following information:
(1) In the case of a newly adopted Zoning Ordinance, the following statement: "A zoning ordinance regulating the development and use of land has been adopted by the City of Battle Creek."
(2) In the case of an amendment(s) to the existing Zoning Ordinance, either a summary of the regulatory effect of the amendment(s), including the geographic area affected, or the text of the amendment(s).
(f) Referendum.
(1) Within seven days after publication of the Zoning Ordinance, a registered elector residing in the zoning jurisdiction of the City may file with the City Clerk a notice of intent to file a petition under this section, in accordance with Section 401 of the Michigan Zoning Enabling Act, Public Act 110 of 2006, as amended, being MCL 125.3401.
(2) If a notice of intent is filed under subsection (1) above, the petitioner shall have thirty days following the publication of the zoning ordinance to file a petition signed by a number of registered electors residing in the zoning jurisdiction of the City not less than 15% of the total vote cast within the zoning jurisdiction for all candidates for governor at the last preceding general election at which a governor was elected, with the City Clerk requesting the submission of the zoning ordinance or part of the zoning ordinance to the electors residing in the zoning jurisdiction of the City for their approval, in accordance with Section 402 of the Michigan Zoning Enabling Act, Public Act 110 of 2006, as amended, being MCL 125.3402.
(3) Whenever there is a conflict between this section of the Zoning Ordinance or the Michigan Zoning Enabling Act, Public Act 110 of 2006, as amended, being MCL 125.3101 et seq., shall govern.
(g) Conditional Rezoning.
(1) Intent. The Planning Commission and City Commission recognize that, in certain instances, it would be an advantage to both the City and to a property owner seeking rezoning if the property owner proposes certain conditions and limitations as part of a petition for rezoning. Therefore, it is the intent of this section to provide a process consistent with the provision of Section 405 of the Michigan Zoning Enabling Act, Public Act 110 of 2006, as amended, being MCL 125.3405, to permit property owners to offer conditions regarding the use and/or development of land as part of the rezoning request. It is the further intent of this Zoning Code to accomplish, among other things, the objectives of the zoning ordinance and the master plan to achieve integration of the proposed land development project with the characteristics of the surrounding area.
(2) Definitions. The following definitions shall apply in the interpretation of this Section:
A. “Rezoning Conditions” shall mean conditions regarding the development and use of property proposed by the applicant and approved by the City as part of an approval under this section, including review and recommendation by the Planning Commission.
B. “Rezoning with Conditions Agreement” shall mean a written agreement approved and executed by the City and property owner setting forth the conditions attached to the rezoning pursuant to MCL 125.3405 (as amended) and any other terms mutually agreed upon by the parties relative to land for which the City has approved a rezoning with conditions.
C. “Rezoning with Conditions Plan” shall mean a plan of the property which is the subject of a rezoning with conditions, prepared by a Michigan licensed civil engineer or architect, that may show the location, size, height, design, architecture or other measure or feature for and/or of buildings, structures, improvements and features on, and in some cases adjacent to, the property. The details to be offered for inclusion within the rezoning with conditions plan shall be determined by the applicant, subject to approval of the City Commission after recommendation by the Planning Commission.
D. “Rezoning” shall mean the amendment of this Zoning Code to change the zoning map classification on property from its existing district to a new district classification.
(3) Authorization and eligibility.
A. The standards of this Section shall grant a property owner the option of voluntarily proposing conditions for the development and use of property in connection with a submission of a petition seeking a rezoning. Such conditions may be proposed at the time the application for rezoning is filed, or at a subsequent point in the process of review of the proposed rezoning.
B. In order to be eligible for consideration of a rezoning with conditions, a property owner must propose a rezoning of property to a new zoning district classification, and must, as part of such proposal, voluntarily offer certain site-specific conditions (to be set forth in a rezoning with conditions agreement) that are more strict or limiting than the regulations that would apply to the land under the proposed new zoning district. Such conditions may include, but are not limited to, the following:
1. The location, size, height or other measure for and/or of buildings, structures, improvements, setbacks, landscaping, buffers, design, architecture and other physical features of the proposed development.
2. Specification of maximum density or intensity of development and/or use, expressed in terms fashioned for the particular development and/or use. For example: units per acre, maximum usable floor area, or hours of operation.
3. Preservation of open space, natural resources and/or natural features.
4. Improvements to address traffic issues, including paving, substantial improvements to or funding of improvements to major roads to the benefit of the entire City.
5. Site improvements such as signage, lighting, landscaping, building materials for the exterior of some or all structures above and beyond what would otherwise be required by City ordinance.
6. Limitations on permissible uses of the property.
7. Any other conditions that may be voluntarily proposed by the property owner.
(4) Application and review procedures.
A. Application.
1. At the time of making application for amendment of this Zoning Code seeking a rezoning of property, or at a later time during the process of City consideration of such rezoning a property owner may submit a complete application for approval of a rezoning with conditions to apply in conjunction with the rezoning.
2. The application, which may be amended by the applicant during the process of consideration, shall specify the rezoning conditions proposed by the applicant, recognizing that rezoning conditions shall not authorize uses or development not permitted in the district proposed by the rezoning.
3. An application for a rezoning with conditions shall include a rezoning with conditions agreement (“the agreement”). The agreement shall set forth the rezoning conditions and may incorporate a rezoning with conditions plan.
4. The application shall include a notarized signature of the property owner indicating that the conditions attached to the rezoning are voluntarily offered.
B. Planning Commission review.
1. The proposed rezoning with conditions shall be noticed for public hearing before the Planning Commission as a proposed legislative amendment of the zoning ordinance.
2. Following the public hearing, and further deliberations as deemed appropriate by the Planning Commission, the Planning Commission shall make a recommendation to the City Commission on the proposed rezoning with conditions.
C. City Commission review. Upon recommendation by the Planning Commission, the City Commission shall make a final determination to approve or deny the rezoning with conditions as offered by the applicant. The City Commission may only consider the conditions offered by the applicant, and may not attach any other conditions to the rezoning other than those offered by the applicant. The City Commission's deliberations shall include, but not be limited to, a consideration of the review criteria for a rezoning with conditions.
(5) Review criteria. A rezoning with conditions shall only be approved if it meets the following requirements and standards:
A. The proposed rezoning with conditions will further the goals and objectives of the city master plan.
B. Rezoning conditions shall not authorize uses or development not permitted in the district proposed by the rezoning (and shall not permit uses or development expressly or implicitly prohibited in the rezoning with conditions agreement).
C. The use of the property in question shall be in complete conformity with all regulations governing development and use within the zoning district to which the property is proposed to be rezoned, including, without limitation, permitted uses, lot area and width, setbacks, height limits, required facilities, buffers, open space areas, and land use density; provided, however, the following shall apply:
1. Development and use of the property shall be subject to the more restrictive requirements shown or specified in the rezoning with conditions agreement, and/or in other conditions and provisions set forth in the rezoning with conditions agreement required as part of the rezoning with conditions approval. Such rezoning with conditions agreement shall supersede all inconsistent regulations otherwise applicable under the zoning ordinance.
2. As part of the grant of final approval of a rezoning with conditions, the City Commission shall be authorized to grant modifications to the strict terms of the zoning ordinance governing dimensional requirements on the property; provided, such authorization to grant modifications shall be conditioned upon the City Commission finding that each zoning ordinance provision sought to be modified will result in an enhancement of the development that would be in the public interest, and that approving the modification would be consistent with the city master plan and compatible with the surrounding area.
D. The proposed rezoning with conditions will result in integration of the proposed land development project with the characteristics of the project area, and result in an enhancement of the project area as compared to the existing zoning, and such enhancement would be unlikely to be achieved or would not be assured in the absence Of the use of a rezoning with conditions.
E. As compared to the existing zoning and considering the site-specific conditions and/or land use proposed by the applicant, it would be in the public interest to grant the rezoning with conditions. In determining whether approval of a proposed application would be in the public interest, the benefits which would reasonably be expected to accrue from the proposal shall be balanced against and be found to clearly outweigh the reasonably foreseeable detriments, taking into consideration reasonably accepted planning, engineering, environmental and other principles, and also taking into consideration the special knowledge and understanding of the City by the City Commission and Planning Commission.
F. The proposed conditions will not preclude future zoning and planning actions by or on behalf of the municipality.
G. Existing and available public services will be capable of serving proposed or potential development that will occur as a result of the rezoning with conditions without negatively impacting the delivery of public services to other properties in the City, or the conditions will ensure that public services will be sufficient to serve both the site and other properties in the City.
H. The offered condition(s) are beneficial to the public good and likely to be enforceable.
I. The condition does not have the same effect as a use variance.
J. The proposed conditions do not relieve the applicant of the responsibility of securing any applicable site plan, plat, condominium, or special land use approvals.
(6) Effect of approval. Approval of the rezoning with conditions and rezoning with conditions agreement confirms only the rezoning of the property, subject to any conditions reflected in the rezoning with conditions agreement and after recordation as set forth in subsection (8) below. Any applicable site plan, plat, condominium, special land use, or variance approvals shall be required before any improvements to the property may be undertaken.
If approved, the zoning district classification of the rezoned property shall consist of the district to which the property has been rezoned, accompanied by a reference to “CR Rezoning with Conditions”. The zoning map shall specify the new zoning district plus a reference to “CR” e.g., the district classification for the property might be “B-1, Corridor Commercial District (CR, Rezoning with Conditions)”, with a zoning map designation of “B-1/CR.” Use of the property so classified and approved shall comply with the conditions set Forth in the rezoning with conditions agreement. No development or use of the land inconsistent with the conditions of the rezoning with conditions agreement shall be permitted.
(7) Compliance with conditions.
A. Any person who establishes a development or commences a use upon 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 rezoning with conditions agreement. Any failure to comply with a condition contained within the rezoning with conditions agreement shall constitute a violation of this Zoning Code and shall be punishable accordingly. Additionally, any such violation shall be deemed a nuisance per se and subject to judicial abatement as provided by law.
B. No permit or approval shall be granted under this Zoning Code for any use or development that is contrary to an applicable rezoning with conditions agreement.
(8) Period of approval.
A. The rezoning with conditions and agreement shall expire after a period of one year from the effective date of the rezoning unless substantial progress towards obtaining site plan and other required approvals has been made, and shall expire after a period of two years unless development of the property is substantially begun within such two year period and proceeds diligently and in good faith as required by ordinance to completion.
B. In the event substantial progress towards obtaining site plan and other required approvals has not commenced within one year and bona fide development has not commenced within two years from the effective date of the rezoning, the rezoning with conditions and the rezoning with conditions agreement shall be void and of no effect.
C. The property owner may apply for a one year extension two times. The request must be submitted to the Planning Division before the approval time limit expires. The property owner must demonstrate why the extension should be granted, and must also demonstrate that there is a strong likelihood that the development or use will commence within the period of extension and proceed diligently thereafter to completion, and if the City Commission finds that there has not been a change in circumstances that would render the rezoning with conditions incompatible with adjacent or nearby use and zoning of land or is otherwise inconsistent with sound zoning policy.
An extension request shall be considered by the City Commission following a recommendation by the Planning Commission.
D. If the rezoning with conditions becomes void in the manner provided in this section, the following procedures shall apply:
1. The property owner may seek a new rezoning of the property within thirty days of the expiration of the period of approval.
2. If no application is made for a new rezoning of the property, the land shall revert to its former zoning classification as set forth in MCL 124.3405(2) (as amended). The City Commission shall direct the Planning Commission to proceed with consideration of rezoning the land to its former zoning designation following the standard rezoning procedures set forth in this Zoning Code.
3. Until such time as a new zoning district classification of the property has become effective, no development shall be undertaken or permits for development issued.
(9) Rezoning with conditions agreement requirements. A rezoning with conditions agreement shall be executed between the applicant and the City at the time of City Commission approval of a rezoning with conditions.
A. Rezoning with conditions agreements shall, at a minimum, contain all of the following items:
1. Identification of the requested zoning district and a listing of the conditions offered by the applicant.
2. A statement acknowledging that the rezoning with conditions was proposed by the applicant, and, further agreement and acknowledgment that the conditions and rezoning with conditions agreement are authorized by all applicable state and federal law and constitution, and that the agreement is valid and was entered into on a voluntary basis and represents a permissible exercise of authority by the City.
3. Agreement and understanding that the property in question shall not be developed or used in a manner inconsistent with the rezoning with conditions agreement.
4. Agreement and understanding that the approval and rezoning with conditions agreement shall be binding upon and inure to the benefit of the property owner and City, and their respective heirs, successors, assigns, and transferees.
5. The date upon which the rezoning with conditions becomes void, as specified in Section 1281.01(g)(8). If the City Council grants an extension of approval, a new rezoning with conditions agreement with the new expiration date shall be recorded.
6. Agreement and understanding that, if a rezoning with conditions becomes void in the manner provided in Section 1281.01(g)(8), no development shall be undertaken or permits for development issued until a new zoning district classification of the property has been established.
7. Agreement and understanding that each of the requirements and conditions in the rezoning with conditions agreement represents a necessary and reasonable measure which, when considered with all other conditions and requirements, is roughly proportional to the increased impact created by the use represented in the approved rezoning with conditions, taking into consideration the changed zoning district classification and the specific use authorization granted.
8. A legal description of the property affected by the rezoning with conditions.
9. Development regulations affected by the conditions of rezoning, including but not limited to density, setbacks, height, site coverage, signs, parking, architecture, etc.
10. Revocation of approval provisions returning the property to its original zoning designation if the developer violates the terms of the agreement.
B. A rezoning with conditions plan may be included as an exhibit to the agreement. The rezoning with conditions plan may show the conceptual layout of the proposed development or use, along with any other information deemed relevant by the applicant. Inclusion of a rezoning with conditions plan as an exhibit to a rezoning with conditions agreement shall not replace the requirement for preliminary and final site plan, subdivision, condominium, special land use or variance review and approval.
(10) Amendment of rezoning with conditions agreement. Amendment of a rezoning with conditions agreement shall be proposed, reviewed and approved in the same manner as a new rezoning with conditions.
(11) Recordation of rezoning with conditions agreement. A rezoning with conditions shall become effective following publication in the manner provided by law, and, after recordation of the rezoning with conditions agreement, whichever is later. All rezoning with conditions agreements shall be recorded with the Calhoun County Register of Deeds.
(12) Termination. The City Commission shall be the only body with the authority to terminate a rezoning with conditions agreement. The consideration to terminate the agreement shall be for reasons of expiration of the agreement, discovery of false information upon which the initial approval was based, or the existence or discovery of new information that alters the viability of the approved rezoning. The termination shall comply with any applicable provisions of this Zoning Code or the rezoning with conditions agreement. If the agreement is terminated, the City shall follow the procedures in Section 1281.01
(g)(8)D.
(13) City right to rezone. Nothing in the rezoning with conditions agreement or in the provisions of this section shall be deemed to prohibit the City from rezoning all or any portion of land that is subject to a rezoning with conditions to another zoning classification. Any such rezoning shall be conducted in compliance with this Zoning Code and the Michigan Zoning Enabling Act.
(14) If land that is subject to a rezoning with conditions agreement is thereafter rezoned to a different zoning classification or to the same zoning classification but with a different or no rezoning with conditions agreement, the rezoning with conditions agreement attached to the former zoning classification shall cease to be in effect. In such a case, the Planning and Zoning Administrator or their designee shall record with the Calhoun County Register of Deeds a notice that the rezoning with conditions is no longer in effect upon the property owner's written request.
(h) Fees. Petitions for an amendment to this Zoning Code shall be accompanied by a fee as prescribed in the schedule provided for in Section 802.24
. Such fee is applicable when filing a petition for zoning reclassification or special use permits and is nonrefundable.
(i) Protest Petition. An amendment to a zoning ordinance is subject to a protest petition under Section 1281.08
.
(j) An amendment to conform a provision of the zoning ordinance to the decree of a court of competent jurisdiction as to any specific lands may be adopted by the City Commission and the notice of the adopted amendment published without referring the amendment to any other board provided for under this chapter.
(Ord. 10-2020. Passed 11-24-20; Ord. 12-2023. Passed 10-17-23.)