[Amended 1-22-2018 by Ord. No. 2018-001]
The purpose of this article is to establish a Zoning Board of
Appeals (ZBA) pursuant to Public Act 110 of 2006, as amended, including
its responsibilities, procedures, and standards of review, to ensure
that the objectives of this chapter are fully and equitably achieved.
A.
Establishment. A ZBA is hereby established in accordance with Public
Act 110 of 2006, as amended. The Village Council shall act as the
ZBA in accordance with Public Act 110 of 2006, as amended.
B.
Alternate members. The Village Council may appoint not more than
two alternate members to the ZBA. The alternate members shall be called
on a rotating basis to sit as regular members of the ZBA in the absence
of a regular member if the regular member will be unable to attend
one or more meetings of the ZBA. An alternate member may also be called
to serve 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. An alternate member shall serve on
a case until a final decision is made. The alternate member shall
have the same voting rights as a regular member of the ZBA. An employee
or contractor of the Village Council may not serve as an alternate
member of the ZBA.
C.
Terms of appointment. Terms of appointment of ZBA members shall be
limited to the time they are members of the Village Council. Alternative
members, if appointed, shall be appointed for three-year terms.
D.
Removal from office/conflict of interest. A member of the ZBA may
be removed by the Village Council for misfeasance, malfeasance, or
nonfeasance in office upon written charges and after a public hearing.
A member shall disqualify himself or herself from deliberations and
a vote in which the member has a conflict of interest. Failure of
a member to disqualify himself or herself from deliberations and a
vote in which the member has a conflict of interest constitutes malfeasance
in office.
A.
Rules of procedure and officers. The ZBA may adopt rules of procedure
for the conduct of its meetings and the implementation of its duties.
The Village President shall serve as the Chairperson of the ZBA and
the Village President Pro Tem shall serve as the ZBA's Vice Chairperson.
B.
Meetings and quorum. Meetings of the ZBA shall be held at the call
of the chairperson and at such other times as the ZBA in its rules
of procedure may specify. A majority of the regular membership of
the ZBA shall comprise a quorum, which may include an alternate member(s)
sitting in for a regular member(s). The ZBA shall not conduct official
business unless a quorum is present. All meetings shall be open to
the public and conducted pursuant to the requirements of the Open
Meetings Act (PA 267 of 1976, as amended).
C.
Oaths and witnesses. The chairperson may administer oaths and compel
the attendance of witnesses.
D.
Records/minutes. The ZBA shall maintain a record of its proceedings
which shall be filed in the office of the Village Clerk, and shall
be a public record according to the Freedom of Information Act. All
minutes shall state the grounds for each determination, including
findings of fact and conclusions, and shall be available to the public
according to the Open Meetings Act.
E.
Legal counsel. The Village Attorney shall act as legal counsel for
the ZBA.
The ZBA shall act upon questions as they arise in the administration
of this chapter and take other actions as specified in this chapter.
The ZBA shall perform its duties and exercise its powers as provided
in Public Act 110 of 2006, as amended. The ZBA shall not have the
power to alter or change the zoning district classification of any
property, nor make any change in the terms or intent of this chapter,
but shall have the power to act on those matters so specified in this
chapter, including Ordinance interpretations, variances, and the review
of an order, requirement, decision, or determination made by an administrative
official or body charged with the administration or enforcement of
this chapter.
A.
Authority. The ZBA shall hear and decide appeals where it is alleged
by the appellant that there is an error in any order, requirement,
permit, or decision by the Zoning Administrator or by any other body
or official in administering or enforcing the provisions of this chapter.
Within this capacity the ZBA may reverse or affirm, wholly or partly,
or may modify the order, requirement, decision, or determination of
such body or official. The ZBA shall have all the powers of the body
or official that made the decision subject to the appeal. This authority
shall not extend to decisions on special land use applications and
ordinance amendment petitions.
B.
Standards. The ZBA shall reverse or otherwise modify the decision
of such body or official from whom the appeal is taken only if it
finds that the action or decision appealed:
C.
Procedures:
(1)
Application requirements. A written application for an appeal
for administrative review shall be completed and filed with the Zoning
Administrator on forms established for that purpose, within 21 days
after the date of the meeting during which the meeting minutes addressing
the decision being appealed was approved. Application for an administrative
review shall specify, at a minimum, the name, address, and phone number
of the applicant; the decision being appealed; and the basis for the
appeal. A minimum of seven copies of the application shall be submitted
along with any required application fees.
(2)
Stay. An appeal of an administrative decision shall stay all
proceedings in furtherance of the action appealed unless the officer
or body from whom the appeal is taken certifies to the ZBA, after
the notice of appeal is filed, that by reason of facts stated in the
certification, a stay would in the opinion of the officer or body
would 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 ZBA or by the circuit court,
on application, on satisfactory demonstration of due cause.
(3)
Record of facts/transmission of record. Upon receipt of an application
for administrative review, the officer or body that made the decision
being appealed shall transmit to the ZBA all papers constituting the
record associated with the decision being appealed. In hearing and
deciding administrative appeals, the ZBA's review shall be based
upon the record of the administrative decision being appealed.
(a)
The ZBA shall not consider new information which had not been
presented to the administrative official or body that made the decision
subject to the appeal except where the ZBA first remands the matter
back to the body that made the original administrative decision with
an order to consider the new information and affirm or modify its
original decision.
(4)
Hearing. Upon receipt of an application, the chairperson of
the ZBA shall fix a reasonable time and date for a hearing, taking
into account adequate time for members of the ZBA to review the application
prior to such hearing. Notice of the hearing shall comply with § 155-24.09.
See § 155-24.06 regarding timely action. Upon the hearing,
any party may appear in person or by agent or attorney.
(5)
Decision. The ZBA shall render a decision in the form of a motion
containing a full record of the findings and determination of the
ZBA and basis for such determination, and shall be made part of the
meeting minutes. The concurring vote of a majority of the members
of the ZBA shall be necessary to reverse or otherwise modify the action
subject to the appeal. A member of the ZBA shall not participate in
a public hearing, deliberation, or vote, on the same matter that the
member voted on as a member serving in the capacity of the Planning
Commission or Village Council. However, the member may consider and
vote on other unrelated matters involving the same property.
A.
Authority. The ZBA shall hear and decide upon requests to interpret
the provisions of this chapter when it is alleged that certain provisions
are not clear or that they could have more than one meaning, including
the determination of the precise location of the boundary lines between
zoning districts, application of off-street parking requirements for
a specific use, and whether a particular use is authorized in a particular
district.
B.
Standards. In deciding on an interpretation, the ZBA shall be guided
by the following:
(1)
An interpretation shall be consistent with the intent and purpose
of this chapter and the specific article in which the language in
question is contained.
(2)
A text interpretation shall apply to the specific provision
for which the interpretation is requested, and shall not extend to
matters beyond such specific provision.
(3)
A zoning district boundary interpretation shall be guided by
§ 155-3.02.
(4)
All interpretations shall take into account any relevant interpretations
previously issued by the ZBA and any relevant past ordinance administration
practices.
(5)
Prior to deciding a request for an interpretation, the ZBA may
confer with Village staff and consultants to gain insight into the
provision subject to interpretation and any consequences which may
result from differing decisions.
C.
Procedures.
(1)
Application requirements. A written application for an interpretation
shall be completed and filed with the Zoning Administrator on forms
established for that purpose. Application for an interpretation shall
specify, at a minimum, the name, address, and phone number of the
applicant; the standard, regulation or provision requiring an interpretation;
and a plot plan, site plan, or similar drawing illustrating the application
or relevance of such interpretation. A minimum of seven copies of
the completed application shall be submitted along with any application
fees.
(2)
Hearing. Upon receipt of an application, the chairperson of
the ZBA shall fix a reasonable time and date for a hearing, taking
into account adequate time for members of the ZBA to review the application
prior to such hearing. Notice of the hearing shall comply with § 155-24.09.
See § 155-24.06 regarding timely action. Upon the hearing,
any party may appear in person or by agent or attorney.
(3)
Decision. The ZBA shall render a decision in the form of a motion
containing a full record of the findings and determination of the
ZBA, and basis for such determination, and shall be made part of the
meeting minutes. The concurring vote of a majority of the members
of the ZBA shall be necessary to make an interpretation.
(a)
A decision providing an interpretation may be accompanied by
a recommendation to the Planning Commission for consideration of an
amendment of the Ordinance to address what the ZBA may find is a problematic
aspect of the Ordinance.
A.
Authority. The ZBA shall have the power to authorize specific variances
from specific site development standards of this chapter, such as
lot area and width requirements, building height and setback requirements,
yard width and depth requirements, lot depth to width ratio requirements,
off-street parking and loading space requirements, and sign requirements.
The ZBA shall not have the power to authorize variances pertaining
to permitted uses of land in a district.
B.
Standards. The ZBA shall have the power to authorize variances from
specific site development requirements provided that all of the standards
listed below are met and the record of proceedings of the ZBA contains
evidence supporting each conclusion.
(1)
That there are practical difficulties that prevent carrying
out the strict letter of this chapter due to unique circumstances
specific to the property such as its narrowness, shallowness, shape,
or topography, that do not generally apply to other property or uses
in the same district, and shall not be recurrent in nature. These
difficulties shall not be deemed economic, but shall be evaluated
in terms of the use of a particular parcel of land.
(2)
That the practical difficulty or special circumstance is not
a result of the actions of the applicant.
(3)
That the variance will relate only to property described in
the variance application.
(4)
That the variance will be in harmony with the purpose of this
chapter and the intent of the district, including the protection of
public health, safety and welfare in general and vehicular and pedestrian
circulation specifically.
(5)
That the variance will not cause a substantial adverse effect
upon surrounding property including property values and the development,
use and enjoyment of property in the neighborhood or district.
(6)
That strict compliance with the site development requirement
in question would unreasonably prevent the owner from using the property
for a permitted purpose, or would render conformity unnecessarily
burdensome.
(7)
That the variance requested is the minimum amount necessary
to overcome the inequality inherent in the particular property or
mitigate the practical difficulty.
C.
Procedures.
(1)
Application requirements. Application for a variance shall specify, at a minimum, the name, address, and phone number of the applicant; the legal description for the lot subject to the variance; a specification of the Ordinance's standards for which a variance is sought and the specific variance being requested; and a plot plan, site plan, elevation drawing or similar drawing prepared by a registered land surveyor or registered engineer that clearly illustrates property lines, property line bearings and dimensions, existing buildings and structures, and the proposed improvements to the lot for which the variance is requested. In all variance proceedings, it shall be the responsibility of the applicant to provide information, plans, testimony and/or evidence from which the ZBA may make the required findings, including any information the applicant may choose to submit to demonstrate conformance with the standards of Subsection B above. A minimum of seven copies of the completed application shall be submitted along with any application fees.
(2)
Hearing. Upon receipt of an application, the chairperson of
the ZBA shall fix a reasonable time and date for a hearing, taking
into account adequate time for members of the ZBA to review the application
prior to such hearing. Notice of the hearing shall comply with § 155-24.09.
See § 155-24.06 regarding timely action. Upon the hearing,
any party may appear in person or by agent or attorney.
(3)
Decision. The ZBA shall render a decision in the form of a motion
containing a full record of the findings and determination of the
ZBA, and basis for such determination, and shall be made part of the
meeting minutes. The concurring vote of a majority of the members
of the ZBA shall be necessary to grant a variance.
(a)
In granting a variance, the ZBA may prescribe appropriate conditions
and safeguards in conformity with this chapter. In the case where
the ZBA prescribes such conditions, the ZBA may require that a performance
guarantee be furnished to ensure compliance with such conditions,
according to § 155-31.06. Violations of such conditions
and safeguards, when made a part of the terms under which the variance
is granted, shall be deemed a violation of this chapter. See Section
504 of the Michigan Zoning Enabling Act (MCLA § 125.3504)
regarding conditional approvals.
(b)
A variance shall become null and void unless the construction
authorized by such variance has been commenced within 180 days after
the granting of the variance, and there is a continuous good faith
intention to continue construction to completion. The ZBA may extend
this time limit upon its finding that no substantial changes have
occurred to ordinance regulations, abutting properties, or other conditions
that undermine the basis for the original issuance of the variance.
(c)
No application for a variance that has been acted upon shall
be resubmitted for a period of one year from the date of denial, except
on the grounds of newly discovered evidence or proof of changed conditions
having bearing on the basis for the original denial, in the discretion
of the ZBA.
A.
Circuit court review. The decision of the ZBA shall be final. However,
any party aggrieved by an order, determination or decision of the
ZBA may obtain a review thereof in the Circuit Court provided that
application is made to the Court within 30 days after the ZBA issues
its decision in writing signed by the chairperson, or within 21 days
after the ZBA approves the minutes of its decision. The Circuit Court
shall review the record and decision of the ZBA to insure that the
decision:
