(A) Intent. It is recognized that there are certain instances where it would be in the best interests of the city, as well as advantageous to property owners seeking a change in zoning boundaries, if certain conditions could be proposed by property owners as part of a request for a rezoning. It is the intent of this section to provide a process consistent with the provisions of § 405 of the Zoning Enabling Act, Public Act 110 of 2006, being M.C.L.A. § 125.3405, as amended, by which an owner seeking a rezoning may voluntarily propose conditions regarding the use and/or development of land as part of the rezoning request.
(B) Application and offer of conditions.
(1) An owner of land may voluntarily offer, in writing, conditions relating to the use and/or development of land for which a rezoning is requested. This offer may be made either at the time the application for rezoning is filed or may be made at a later time during the rezoning process.
(2) The required application and process for considering a rezoning request with conditions shall be the same as that for considering rezoning requests made without any offer of conditions, except as modified by the requirements of this section.
(3) The owner’s offer of conditions may not purport to authorize uses or developments not permitted in the requested new zoning district.
(4) The owner’s offer of conditions shall bear a reasonable and rational relationship to the property for which rezoning is requested.
(5) Any use or development proposed as part of an offer of conditions that would require a special land use permit under the terms of this chapter may only be commenced if a special land use permit for such use or development is ultimately granted in accordance with the provisions of this chapter.
(6) Any use or development proposed as part of an offer of conditions that would require a variance under the terms of this chapter may only be commenced if a variance for such use or development is ultimately granted by the Zoning Board of Appeals in accordance with the provisions of this chapter.
(7) Any use or development proposed as part of an offer of conditions that would require site plan approval under the terms of this chapter may only be commenced if site plan approval for such use or development is ultimately granted in accordance with the provisions of this chapter.
(8) The offer of conditions may be amended during the process of rezoning consideration provided that any amended or additional conditions are entered voluntarily by the owner. An owner may withdraw all or part of its offer of conditions any time prior to final rezoning action of the City Council provided that, if such withdrawal occurs subsequent to the Planning Commission’s public hearing on the original rezoning request, then the rezoning application shall be referred to the Planning Commission for a new public hearing with appropriate notice and a new recommendation.
(C) Planning Commission review. The Planning Commission, after public hearing and consideration of the standards for approval set forth in division (E) below, may recommend approval, approval with recommended changes, or denial of the rezoning; provided, however, that any recommended changes to the offer of conditions are acceptable to and thereafter offered by the owner.
(D) City Council review. After receipt of the Planning Commission’s recommendation, the City Council shall deliberate upon the requested rezoning and may approve or deny the conditional rezoning request. The City Council’s deliberations shall include, but not be limited to, a consideration of the standards for approval set forth in division (E) below. Should the City Council consider amendments to the proposed conditional rezoning advisable and if such contemplated amendments to the offer of conditions are acceptable to and thereafter offered by the owner, then the City Council shall, in accordance with the State Zoning Enabling Act, being M.C.L.A. § 125.3401, refer such amendments to the Planning Commission for a report thereon within a time specified by the City Council and proceed thereafter in accordance with said statute to deny or approve the conditional rezoning with or without amendments.
(E) Factors. In reviewing an application for the rezoning or land where there is an offer of conditions, factors that should be considered by the Planning Commission and the City Council shall include the following:
(1) Whether the proposed rezoning is consistent with the goals, policies, and future land use map of the city’s Master Plan;
(2) The compatibility of all the potential uses allowed in the proposed zoning district with surrounding land uses and zoning districts in terms of land suitability, impacts on the environment, density, and influence on property values;
(3) Whether any public services and facilities would be significantly adversely impacted by a development or use allowed under the requested rezoning. Consideration of impact on drains and roads is specifically required; and
(4) Whether the uses allowed under the proposed rezoning would be equally or better suited to the area than uses allowed under the current zoning of the land.
(F) Approval.
(1) If the City Council finds the rezoning request and offer of conditions acceptable, the offered conditions shall be incorporated into a formal written statement of conditions acceptable to the owner and conforming in form to the provisions of this section. The statement of conditions shall be incorporated by attachment or otherwise as an inseparable part of the ordinance adopted by the City Council to accomplish the requested rezoning.
(2) The statement of conditions shall:
(a) Be in a form recordable with the Register of Deeds of the county in which the subject land is located or, in the alternative, be accompanied by a recordable affidavit or memorandum prepared and signed by the owner giving notice of the statement of conditions in a manner acceptable to the City Council;
(b) Contain a legal description of the land to which it pertains;
(c) Contain a statement acknowledging that the statement of conditions runs with the land and is binding upon successor owners of the land;
(d) Incorporate by attachment or reference any diagram, plans, or other documents submitted or approved by the owner that are necessary to illustrate the implementation of the statement of conditions. If any such documents are incorporated by reference, the reference shall specify where the document may be examined;
(e) Contain a statement acknowledging that the statement of conditions or an affidavit or memorandum giving notice thereof shall be recorded with the Register of Deeds of the county by the owner with a copy of the recorded document provided to the city within 45 days of its recording; and
(f) Contain the notarized signatures of all of the owners of the subject land preceded by a statement attesting to the fact that they voluntarily offer and consent to the provisions contained within the statement of conditions.
(3) Upon the rezoning taking effect, the zoning map shall be amended to reflect the new zoning classification along with a designation that the land was rezoned with a statement of conditions. The City Clerk shall maintain a listing of all lands rezoned with a statement of conditions.
(4) The approved statement of conditions or an affidavit or memorandum giving notice thereof shall be filed by the owner with the Register of Deeds of the county. The owner shall provide a copy of the recorded document to the city within 45 days of the date of its recording. The City Council shall have authority to waive this requirement if it determines that, given the nature of the conditions and/or the time frame within which the conditions are to be satisfied, the recording of such a document would be of no material benefit to the city or to any subsequent owner of the land.
(5) Upon the rezoning taking effect, the use of the land so rezoned shall conform thereafter to all of the requirements regulating use and development within the new zoning district as modified by any more restrictive provisions contained in the statement of conditions.
(G) Compliance with conditions.
(1) 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 statement of conditions. Any failure to comply with a condition contained within the statement of conditions shall constitute a violation of this chapter and be punishable accordingly. Additionally, any such violation shall be deemed a nuisance per se and subject to judicial abatement as provided by law.
(2) No permit or approval shall be granted under this chapter for any use or development that is contrary to an applicable statement of conditions.
(H) Time period for establishing development or use. Unless another time period is specified in the ordinance rezoning the subject land, the approved development and/or use of the land pursuant to building and other required permits must be commenced upon the land within 36 months after the rezoning took effect and thereafter proceed diligently to completion. This time limitation may, upon written request, be extended by the City Council if:
(1) It is demonstrated to the City Council’s reasonable satisfaction that there is a strong likelihood that the development and/or use will commence within the period of extension and proceed diligently thereafter to completion;
(2) The City Council finds that there has not been a change in circumstances that would render the current zoning with statement of conditions incompatible with other zones and uses in the surrounding area or otherwise inconsistent with sound zoning policy; and
(3) The written request shall be made to the City Council requesting the extension within six months of the end of the 36-month period.
(I) Reversion of zoning. If approved development and/or use of the rezoned land does not occur within the time frame specified under division (H) above, then the land shall revert to its former zoning classification as set forth in M.C.L.A. § 125.3405(2). The reversion process shall be initiated by the City Council requesting that the Planning Commission proceed with consideration of rezoning of the land to its former zoning classification. The procedure for considering and making this reversionary rezoning shall thereafter be the same as applies to all other rezoning requests.
(J) Subsequent rezoning of land. When land that is rezoned with a statement of conditions is thereafter rezoned to a different zoning classification or to the same zoning classification but with a different or no statement of conditions, whether as a result of a reversion of zoning pursuant to division (I) above or otherwise, the statement of conditions imposed under the former zoning classification shall cease to be in effect. Upon the owner’s written request, the City Clerk shall record with the Register of Deeds of the county in which the land is located a notice that the statement of conditions is no longer in effect.
(K) Amendment of conditions.
(1) During the time period for commencement of an approved development or use specified pursuant to division (H) above or during any extension thereof granted by the City Council, the Council shall not add to or alter the conditions in the statement of conditions.
(2) The statement of conditions may be amended thereafter in the same manner as was prescribed for the original rezoning and statement of conditions.
(L) City right to rezone.
(1) Nothing in the statement of conditions nor 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 statement of conditions to another zoning classification.
(2) Any rezoning shall be conducted in compliance with this chapter and the State Zoning Enabling Act.
(M) Failure to offer conditions. The city shall not require an owner to offer conditions as a requirement for rezoning. The lack of an offer of conditions shall not affect an owner’s rights under this chapter.
(Ord. 357, passed 6-8-2015)