(A) General. This section addresses the duties and responsibilities of the Zoning Board of Appeals, hereafter referred to as "the Board", and other officers and agencies, with respect to the administration of this chapter.
(B) Establishment of the Board. The Zoning Board of Appeals is hereby established under the City and Village Zoning Act, Act No. 207 of the Public Acts of 1921, being M.C.L.A. §§ 125.581 to 125.600. The Board shall consist of seven members, each to be appointed by the Common Council as provided for in this chapter, within ten days after the effective date of this chapter. The Common Council may also appoint not more than two alternate members for the same term as regular members of the Board. The alternate members may be called on a rotating basis as specified in this chapter to sit as regular members of the Board in the absence of a regular member or 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 reasons of conflict of interest. A member shall disqualify himself from a vote in which he or she has a conflict of interest. The alternate member called shall serve in the case until a final decision is made. The alternate member has the same voting rights as a regular member of the Board.
(C) Terms of office.
(1) Appointment. The terms of office for the membership of the Board shall be three years, expiring on January 1 in the year of expiration. Appointments of the first members of this Board created under this chapter shall be for terms of one, two, and three years, respectively, so as nearly as possible to provide for the subsequent appointment of an equal number of members each year, except that three members shall be appointed to the one-year term. After the initial appointments, each member shall hold office for the full three-year term.
(2) Removal from office. The Common Council shall, upon written charges and after a public hearing, remove members of the Board for nonperformance of duty or misconduct in office.
(3) Vacancies. Within 30 days, the Common Council shall fill a vacancy on the Board occurring otherwise than through the expiration of term for the unexpired term.
(4) Membership requirements. An appointed member shall be a resident of the city for not less than thirty days before his or her appointment and shall maintain residency during his or her term; if an appointed member discontinues his or her residency within the city, the Common Council shall declare the position vacant and shall appoint another qualified person within thirty days. An appointed member shall not hold another municipal office except that one appointed member may be a member of the Plan Commission.
(5) Compensation. Appointed and alternate members of the Board may be compensated at a rate to be determined by the Common Council during its adoption of the annual budget and may be reimbursed for pre-approved expenses related to performing their duties.
(F) Powers and duties of the Board.
(1) Meetings. All meetings of the Board shall be conducted under the Open Meetings Act, Act No. 267 of the Public Acts of 1976, being M.C.L.A. §§ 15.261 to 15.275. The Board shall meet annually in the first quarter of the calendar year for the purpose of electing officers and establishing rules and procedures under this chapter and applicable state laws for transaction of business. All meetings of the Board shall be held at the call of the Chairman under their adopted procedures and at such other times as the Board shall determine or specify in its rules of procedure. The Mayor shall be empowered to set the date and time of the annual meeting. The public shall be afforded an opportunity to speak at any public hearing under the rules of procedure and by-laws of the Board.
(2) Quorum and votes required. The Board shall not conduct business unless a majority of its members are present. The concurring vote of a majority of the members of the Board is necessary to reverse an order, requirement, decision, or determination of and administrative official or body, or to decide in favor of the applicant a matter upon which the Board shall pass under an ordinance, or to effect a variation in an ordinance except that a concurring vote of two-thirds of the members of the Board is necessary to grant a variance from uses of land permitted in an ordinance.
(3) Records to be public. The City Clerk shall keep a record of its resolutions, transactions, findings, and determinations, which record shall be a public record subject to the Freedom of Information Act, Act No. 442 of the Public Acts of 1976, being M.C.L.A. §§ 15.231 to 15.246.
(4) Chairman. The Board shall elect its chairman from amongst the members and create and fill such other offices as the Board may determine. The term of the Chairman shall be one year, with eligibility for reelection.
(5) Board Secretary. The code official shall appoint a secretary to assist the Board. The secretary shall keep minutes of the Board meetings for public record and conduct all correspondence, including notification of decisions. The secretary shall also certify records. The secretary shall prepare and submit minutes of the Board meetings to the Chairman and to the Board.
(6) General powers. The Board shall hear and decide appeals from and review any order, requirements, decision, or determination made by the code official. The Board shall also hear and decide matters referred to the Board or upon which the Board shall pass under this chapter. For special land use decisions, an appeal may be taken to the Board.
(7) Interpretations. The Board may interpret this chapter and the map and all matters relating thereto when a question arises in the administration of this chapter as to the meaning and intent of any provision or part of this chapter. Any text interpretation shall be narrow and in a manner as to carry out the intent and purpose of this chapter. Interpretations shall not have the effect of amending this chapter. Map interpretations shall be based on the rules of this chapter and any relevant historical information.
(8) Screening and lighting controversies. If any controversy as to the adequacy of any proposed or existing screening or the creation of any nuisance or annoyance by artificial lighting occurs, the Zoning Board of Appeals shall have the right and is hereby given the authority to interpret and determine the screening and lighting provisions and the purpose herein sought to be accomplished.
(9) Extension of licenses, permits, or approvals. Upon application, the Board may grant extensions in the time limits of each license, permit, or approval issued in accordance with § 155.021.
(10) Appeals of administrative decisions. The Board may hear and decide appeals when the appellant alleges that there is error in any order, interpretation, requirement, permit, decision, or refusal made by the code official in enforcing any provision of this chapter.
(11) Modification and variance of ordinance requirements.
(a) Non-use variance.
1. The Board shall be permitted to approve or approve with conditions by a simple majority vote of the Board a request for a dimensional or non-use variance provided that the property owner demonstrates practical difficulty by showing all of the following:
a. Strict compliance with the area, setbacks, frontage, height, bulk, or density requirements of this chapter would unreasonably prevent the property owner from using property for some lawful permitted purpose or would render conformity unnecessarily burdensome in the particular case.
b. A variance shall do substantial justice to both the property owner and neighboring property owners in the district or that a lesser requirement would give substantial relief and be more consistent with justice to others.
c. The plight of the property owner is due to unique circumstances of the property.
d. The problem of the property owner is not self-created.
2. If the property owner demonstrates the above criteria, the Board may consider the following types of non-use variance requests:
a. All matters referred to the Board or upon which the Board shall hear and decide under this chapter.
b. Permit such modification of the height, placement, and area regulations as may be necessary to secure an appropriate improvement of a lot which is of such shape or so located with relation to surrounding development or physical characteristics that the lot cannot otherwise be appropriately improved without such modification.
c. Permit the modification of the automobile parking space or loading space requirements when, in the particular instance, such modifications shall not be inconsistent with the purpose and intent of such requirement.
d. Permit variances for items such as buffering, screening, fencing, or landscaping.
(b) Use variance. The Board shall be permitted to grant by a two-thirds vote of the Board a use variance of the literal provisions of this chapter to a property owner provided that the property owner demonstrates all of the following:
1. Showing of unnecessary hardship on the property owner if this chapter was strictly enforced. The landowner shall prove that the land cannot be put to a reasonable use or yield a reasonable return under its existing zoning classification.
2. The hardship shall be unique or peculiar to the particular parcel and cannot be the result of general neighborhood conditions.
3. There are exceptional or extraordinary circumstances or conditions applicable to the property involved or to the intended use of the property that do not apply generally to other properties or uses in the same zone.
4. The variance is necessary to the preservation and enjoyment of a substantial property right possessed by other property in the same zone and proximity.
5. The variance shall not result in the alteration of the essential character of the neighborhood by impairing an adequate supply of light and air to adjacent property, increasing traffic congestion in public streets, increasing the danger of fire, endangering the public safety, or unreasonably diminishing or impairing established property values within the surrounding area.
6. The variance is a minimum variance that shall make possible the reasonable use of the land, building, or structure.
7. The variance shall be in harmony with the general purpose and intent of this chapter and shall not be injurious to the neighborhood or otherwise detrimental to the public welfare.
(12) Time limitations on a variance. If the Board approves a variance, the variance shall remain in effect only so long as the facts and circumstances as presented to the Board and upon which the variance was granted continue to exist, and that the conditions attached to the approval are satisfied and maintained. If the variance is not exercised within 12 months from the date the variance is granted (unless the Board establishes a different time period as a condition), the variance shall lapse. If the variance has lapsed and the petitioner desires to proceed with the benefits of the variance, the petitioner shall reapply for the variance and demonstrate that all of the requirements for approval of a variance have been met, based upon the facts and circumstances in existence when the new request was submitted. The Board shall have the right to deny the variance if the facts and circumstances pertaining to the request have changed, if the petitioner is not willing to satisfy the conditions attached to the original approval, or if the petitioner has not demonstrated that all of the substantive requirements for the granting of a variance have been satisfied as of the time the new application for variance is filed.
(G) Appeals and hearings.
(1) Filing, time limit. An appeal under this chapter shall be commenced by a person filing notice of appeal or petition as described in the rules and procedures of the Board, within 35 days, and with the appropriate filing fee as annually determined by the Common Council upon adoption of the budget, with the code official. The notice of appeal shall specify the specific grounds upon which the appeal is based and shall be signed by the applicant and property owner. The appeal shall specify the requirement from which a variance is sought and the nature and extend of such variance. The appeal shall be accompanied by a fully completed application along with any other information required by the Board. The code official shall immediately send to the Board all the papers constituting the record upon which the action appealed from was taken. No appeal under this chapter shall be taken if such applicant is in default to the city and is not eligible to be issued a permit under this chapter.
(2) Notification of hearing. The Board shall fix a reasonable time for the hearing of the appeal and give notice of the appeal to the persons to whom real property within 300 feet of the premises in question is assessed, and to the occupants of single and two-family dwellings within 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 a tenant's name is not known, the term "occupant" may be used. A person may appear in person or be represented by a duly authorized agent at the hearing.
(3) Effect of filing. An appeal under this chapter stays all proceedings in furtherance of the action appealed from unless the officer or body from whom the appeal is taken certifies to the Board, after the notice of appeal is filed, that by reason of facts stated in the certificate, a stay would in the opinion of the officer or body 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 or by the circuit court, on application, on notice to the officer or body from whom the appeal is taken and on due cause shown.
(4) Board to decide. The Board shall decide the appeal within 75 days. The Board may reverse or affirm, wholly or partly, or may modify the order, requirement, decision, or determination appealed from and shall make an order, requirement, decision, or determination as in the Board's opinion ought to be made in the premises, and to that end shall have all the powers of the officer or body from whom the appeal is taken, all subject to limitations identified in this chapter. If there are practical difficulties or unnecessary hardships in carrying out the strict letter of this chapter, the Board may in passing upon appeals grant a variance in any of its rules or provisions relating to the construction, or structural changes in, equipment, or alteration of buildings or structures, or the use of land, buildings, or structures, so that the spirit of this chapter shall be observed, public safety secured, and substantial justice done.
(5) Official record of hearing. The Board shall prepare an official record for each appeal and shall base its decision on this record. The official record shall include the relevant administrative record and administrative orders issued thereon relating to the appeal, the notice of the appeal, and such documents, exhibits, photographs, or written reports as may be submitted to the Board for its consideration, and the minutes of the hearing, findings of fact, and decisions and order of the Board. The record and decision of the Board shall comply with the constitution and the laws of the state, be based on proper procedure, be supported by competent material and substantial evidence on the record, and represent the reasonable exercise of discretion granted by law to the Board.
(6) Appeal to Circuit Court. The decision of the Board is final. However, a person having an interest affected by this chapter may appeal to the circuit court. If the court finds the record of the Board inadequate to make the review required under state law, or that additional material evidence exists that with good reason was not presented to the Board, the court shall order further proceedings before the Board on conditions that the court considers proper. The Board of appeals may modify its findings and decision as a result of the new proceedings, or may affirm the original decision. The supplementary decision shall be filed with the court.
(H) Limitations on the powers of the Board.
(1) Common Council decisions. Nothing contained herein shall empower the Board to override the decisions of the Common Council with respect to the approval or denial of any decision authorized to be made by the Common Council.
(2) Zoning Map. Nothing contained herein shall empower the Board to change the terms of this chapter, to effect changes in the Zoning Map, or to add to the uses permitted in any zoning district, except when specifically empowered to do so by this chapter.
(3) Variance conditions.
(a) In authorizing a variance or taking any other action within its jurisdiction, the Board may attach such conditions as may be deemed necessary in the furtherance of the purposes of this chapter, provided any conditions are in compliance with the standards contained herein. The conditions imposed by the Board may include conditions necessary to ensure that public services and facilities affected by a proposed land use or activity shall be capable of accommodating increased service and facility loads caused by the land use or activity, protect the natural environment, conserve natural resources and energy, ensure compatibility with adjacent uses of land, and to promote the use of land in a socially and economically desirable manner. Conditions imposed shall do all the following:
1. Be designed to protect natural resources, the health, safety, and welfare, as well as the social and economic well-being of those who shall use the land use or activity under consideration, residents and landowners immediately adjacent to the proposed land use or activity and the community as a whole;
2. Be related to the valid exercise of the police power and purposes which are affected by the proposed use or activity;
3. Be necessary to meet the intent and purpose of the zoning regulations, be related to the standards established in this chapter for the land use or activity under consideration and be necessary to ensure compliance with those standards.
(b) The conditions imposed with respect to the approval of a land use or activity shall be recorded in the record of the approval action and shall remain unchanged except upon the mutual consent of the approving authority and the property owner. The Board shall maintain a record of changes granted in conditions. Any changes in the conditions shall be filed with the Register of Deeds as provided herein.
(4) Basis of decisions. Every decision of the Board shall be based upon findings of fact, and every such finding shall be supported in the record and proceedings of the Board.
(Ord. 497, passed 2-3-2004; Am. Ord. 523, passed 6-13-2006; Am. Ord. 2011-7, passed 12-13-2011; Am. Ord. 2019-02, passed 10-8-2019; Am. Ord. 2020-28, passed 3-3-2020; Am. Res. 2021-46, passed 4-13-2021)