(A) Generally. On appeal, the ZBA shall have the authority to grant nonuse variances from the strict application of this chapter in cases where strict enforcement would cause undue hardship as a result of special circumstances that affect an individual property but which do not generally affect other properties in the same zoning district. Such nonuse variances shall be subject to the provisions of this section.
(B) Application. Application for a nonuse variance shall be made to the Zoning Board of Appeals by filing of not less than five copies of an application form with the Zoning Administrator. Fees are required to be paid in accordance with the fee schedule in effect as established by the City Council at the time the application is made. This information below shall be considered a minimum and the Zoning Administrator, in consultation with the Chairperson of the ZBA, may require additional information deemed necessary for the ZBA to make a fully informed decision on the application. The application shall include the following information:
(1) The applicant’s name, address, and phone number;
(2) The address, parcel number, and current zoning district classification of the property;
(3) The application shall be executed by the owner(s) of the property. The applicant may be represented by a party other than the owner(s) who has a legal financial interest in the property (such as a purchase agreement) provided that the application contains an affidavit signed by the property owner(s) indicating the party and the nature of the legal interest. An agent or attorney may also represent the applicant;
(4) The application shall grant a right of entry onto the subject property to the Zoning Administrator, members of the ZBA, and representatives and designees of the city for the purpose of inspecting the property and reviewing the application;
(5) The address of the applicant and any other person that represents the applicant at the hearing to whom all correspondence regarding the application and variance process should be sent;
(6) A narrative description of the requested variance that describes the section(s) of this chapter from which the applicant is seeking a variance as relief; the nature and extent of the requested nonuse variance; and the potential impact of the requested nonuse variance on adjacent and nearby properties; and that specifically addresses the standards for granting a nonuse variance that are set forth in division (E) below;
(7) A plot plan showing:
(a) Property lines with dimensions;
(b) Location of existing and proposed structures with dimensions;
(c) Open yards as required by the applicable zoning district regulations; and
(d) Proposed walls, fences and landscaping.
(8) The ZBA may, in its discretion, require that the applicant, at applicant’s expense, submit a detailed plot plan prepared by a licensed surveyor or professional engineer when it determines that such a plot plan is necessary in order for the ZBA to make an informed decision.
(C) Submission of the application. The application shall be filed with the Zoning Administrator, who shall review the application within 15 days of its receipt. In reviewing the application for completeness, the Zoning Administrator may consult with the Chairperson of the ZBA, the City Engineer, the City Planner, and any other parties whose input the Zoning Administrator deems necessary for the proper review of the application. If the Zoning Administrator finds that the application is not complete, he or she shall return the application with a written explanation of the additional information that is required. Once the application is found to be complete, the Zoning Administrator shall forward the application to the Secretary of the ZBA who shall schedule a meeting of the ZBA and schedule the application for a public hearing at that meeting. Such meeting shall be held no sooner than 15 days and no more than 60 days from the date that notice of the meeting is provided pursuant to the next following division (D).
(D) Notice of public hearing. Upon receipt of an application for a nonuse variance, a notice stating the time, date, and place of the public hearing shall be published in a newspaper of general circulation within the city and shall be sent to the person requesting the nonuse variance not less than 15 days before the public hearing. In addition, if the application for a nonuse variance involves a specific parcel, written notice stating the nature of the nonuse variance request and the time, date, and place of the public hearing shall be sent by first-class mail or personal delivery to all persons to whom real property is assessed within 300 feet of the boundary of the property in question and to the occupants of all structures within 300 feet of the boundary of the property in question. If a tenant’s or other occupant’s name is not known, the term “occupant” may be used. The notice shall contain:
(1) A description of the nature of the nonuse variance request under the specific section of this chapter;
(2) A legal description or address, and/or an approximate sketch of the property which is the subject of the request;
(3) A statement of when and where the public hearing will be held to consider the request; and
(4) A statement as to when and where comments will be received concerning the request.
(E) Public hearing.
(1) Any party other than the owner(s) that has a legal financial interest in the property (such as a purchase agreement or land contract) may apply for and present a nonuse variance request, provided that the application contains an affidavit signed by the legal property owner(s) of record attesting to the financial interest of the applying party and the nature of the legal interest that is held. The applicant, as well as other financially interested parties, including the owner(s), who request or oppose a nonuse variance may be represented by an agent or attorney.
(2) The Chairperson of the ZBA may administer oaths to each person who speaks, or who offers evidence or testimony at the public hearing. The Chairperson may compel the attendance of witnesses.
(3) The applicant and interested members of the public shall have the opportunity to address the ZBA and present evidence in regard to the application, in accordance with rules and procedures adopted by the ZBA from time to time. The ZBA may also take into consideration the testimony provided by the Zoning Administrator, the Planning Commission, and parties with relevant knowledge or expertise.
(F) Standards for granting a variance. In reviewing the request for a nonuse variance, the ZBA shall consider the application in regard to the criteria set forth below and in regard to any additional criteria imposed by case law or statutory law and shall make written findings of fact. No variance shall be granted by the ZBA unless its written findings of fact and the record show that each of the following standards is met.
(1) There is a real and demonstrable hardship as evidenced by one of the following:
(a) Strict compliance with the requirements of this chapter will have the effect of unreasonably preventing the property owner from using the property for a purpose permitted by this chapter because of:
1. The exceptional narrowness, shallowness, or shape of a specific piece of property;
2. The exceptional topographic conditions;
3. Other extraordinary situation of the land or building; or
4. The use of property immediately adjoining the subject property.
(b) Strict compliance with the requirements of this chapter would be unnecessarily burdensome.
(2) The granting of the nonuse variance is necessary for the preservation and enjoyment of a substantial property right possessed by other property owners in the same vicinity and district, but which is denied to the property in question.
(3) The hardship arises from a unique, identified characteristic of the property and is not shared generally by other properties in the area and is not related to general conditions in the area of the property.
(4) The hardship arises from the physical characteristics of the property and is not a personal hardship.
(5) The hardship was not created, imposed, caused, or exacerbated by the applicant, and existed as of the effective date of this chapter or pertinent amendment thereto.
(6) The nonuse variance is directly related to the identified hardship and is the minimum necessary to afford relief from the hardship.
(7) The nonuse variance would result in substantial justice being done for the applicant and for other property owners in the district.
(8) The nonuse variance will not be injurious to the public health, safety, and welfare, and will not be contrary to the intent and purposes of this chapter.
(9) The nonuse variance will not significantly alter the character of the surrounding area.
(G) Approval or denial of nonuse variance. If the ZBA finds that all nine of the standards set forth in division (F) above are satisfied, then it shall approve the nonuse variance. If the ZBA finds that one or more of the required standards are not met, it shall deny the nonuse variance. The ZBA may approve a lesser nonuse variance if, in its opinion, the lesser nonuse variance will result in substantial justice being done, and if the lesser nonuse variance is in compliance with the nine standards set forth in division (F) above. The ZBA may impose conditions on an affirmative decision in accordance with the following requirements.
(1) Such conditions shall be designed to protect natural resources, the health, safety, and welfare, and the social and economic well-being of:
(a) Those who will use the land use or activity under consideration;
(b) Residents and landowners immediately adjacent to the proposed land use or activity; and
(c) The community as a whole.
(2) Such conditions shall be related to the valid exercise of the city’s authority and purposes that are affected by the proposed nonuse variance.
(3) Such conditions shall be necessary to meet the intent and purpose of this chapter, 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.
(H) Finality of decision. The decision of the ZBA shall be final. Any party aggrieved by the decision of the ZBA on such a case and with proper standing, may appeal the decision of the ZBA to the Circuit Court for the county. Any nonuse variance granted by the ZBA shall be valid for one year from the date of approval. If the use or construction authorized by a nonuse variance does not commence within one year of the date, of approval and, in the case of construction, is not completed within two years of the date of approval, the appeal shall become null and void and of no effect, with or without written notification by the ZBA.
(I) Reapplication. An application for a nonuse variance that is determined to be substantially the same as a nonuse variance that has been denied by the ZBA shall not be filed and shall not be accepted by the ZBA within 12 months of the date of denial.
(J) Appeal of the ZBA decision. Any party aggrieved by a decision of the ZBA may appeal to the County Circuit Court as provided in and subject to M.C.L.A. § 125.3606 and M.C.L.A. § 125.3607.
(Ord. passed 4-12-2011)