§ 40-12.04. Duties and Powers of the Zoning Board of Appeals

A.

General. The Zoning Board of Appeals has the power to act on matters as provided in this Ordinance and the Michigan Zoning Enabling Act, Act 110 of the Public Acts of 2006, as amended (MCL 125.3601 et seq.). The specific powers of the Board are enumerated in the following Sections of this Article.

B.

Delegated Duties. The Zoning Board of Appeals shall hear and decide upon the following:

(1)

Appeals of administrative decisions.

(2)

Requests for interpretation of the Zoning Ordinance or Zoning Map.

(3)

Requests for dimensional and other non-use variances.

(4)

All matters upon which it is required to pass under this Ordinance.

(5)

Use Variances as set forth in Section 12.04.G.

C.

Appeals—Appeals of Administrative Decisions. The Zoning Board of Appeals shall hear and decide appeals where it is alleged there is error of law in any order, requirement, decision or determination made by an administrative official or body in the enforcement of this Ordinance.

(1)

Appeals shall be filed in writing within thirty (30) days of the written decision in question with the Zoning Administrator. The appellant must have a property interest and standing to be recognized under the law to challenge the decision. The appellant shall submit a clear description of the order, requirement, decision, or determination for which the appeal is made and the grounds of the appeal. The applicant may be required by the Zoning Board of Appeals to submit additional information to clarify the appeal.

(2)

Appeals may be taken by the person aggrieved or by any officer, department, board, agency, or bureau of the City or State governments. In addition, a variance in the Zoning Ordinance may be applied for and granted under Section 4 of the Uniform Condemnation Procedures Act, 1980 PA 87, MCL 213.54.

(3)

An appeal stays all proceedings in the furtherance of the action appealed from, unless the Zoning Administrator certifies to the Zoning Board of Appeals that a stay would cause imminent peril to life and property. In such case, proceedings shall not be stayed other than by a restraining order which may be granted by the Zoning Board of Appeals or by a court of record on application, on notice to the Zoning Administrator from whom the appeal is taken, and on due cause shown.

(4)

An administrative decision may be reversed, in whole or in part, or may be modified. To that end, the Zoning Board of Appeals shall have all the powers of the Zoning Administrator from whom the appeal is taken. In reaching its decision, the Zoning Board of Appeals shall only modify or reverse an administrative decision being appealed if one (1) or more of the following requirements are met:

(a)

The administrative decision was arbitrary or capricious;

(b)

The administrative decision was based on an erroneous finding of material fact;

(c)

The administrative decision constituted an abuse of discretion; or

(d)

The administrative decision was based on erroneous interpretation of the Zoning Ordinance or zoning law.

D.

Interpretation.

(1)

The Zoning Board of Appeals shall hear and decide requests for interpretation of this Ordinance or the Zoning Map, taking into consideration the intent and purpose of the Ordinance and the Master Plan. In an interpretation of the Zoning Map, the Zoning Board of Appeals shall be governed by the Rules of Interpretation and Interpretation of District Boundaries. The Zoning Board of Appeals shall not have the power to alter or change zoning district boundaries, except where uncertainty exists as to the location of a boundary, land use classifications of any property, or Zoning Ordinance text.

(2)

A record shall be kept by the Zoning Board of Appeals of all decisions for interpretation of this Ordinance or Zoning Map. The Zoning Board of Appeals may request the Planning Commission to initiate an Ordinance amendment that shall correct or clarify the Ordinance.

E.

Dimensional and Other Non-Use Variances.

(1)

Where a literal enforcement of the provisions of this ordinance would involve practical difficulties within the meaning of this Article and existing law, the Zoning Board of Appeals shall have the power to authorize such variation of the provisions of this Ordinance with such conditions and safeguards as it may determine as may be in harmony with the spirit of this Article and so that public safety and welfare be secured, and substantial justice done.

(2)

Dimensional or other non-use variances shall not be granted by the Zoning Board of Appeals unless it can be determined that all of the following facts and conditions exist:

(a)

Exceptional characteristics of property for which the variance is sought make compliance with dimensional requirements substantially more difficult than would be the case for the great majority of properties in the same zoning district. Characteristics of property which shall be considered including, but not limited to, exceptional narrowness, shallowness, smallness, irregular shape, topography, vegetation and other similar characteristics.

(b)

The characteristics which make compliance with dimensional requirements difficult must be related to the property for which the variance is sought, not some other location.

(c)

The characteristics which make compliance with the dimensional requirements shall not be of a personal nature.

(d)

The characteristics which make compliance with dimensional requirements difficult must not have been created by the current or a previous owner.

(e)

The proposed variance will not be harmful or alter the essential character of the area in which the property is located, will not impair an adequate supply of light and air to adjacent property, or unreasonably increase the congestion in public streets, or increase the danger of fire or endanger the public safety, or unreasonably diminish or impair established property value within the surrounding area, or in any other respect impair the public health, safety, comfort, morals or welfare of the inhabitants of the City.

(3)

The Zoning Board of Appeals shall not find that any of the above criteria have been met without substantial evidence provided by the applicant to that effect.

(4)

The proposed variance will be the minimum necessary, and no variance shall be granted where a different solution not requiring a variance would be possible.

F.

Special Variations. In addition to the general powers given in Section 40-12.04.B, the Zoning Board of Appeals shall have the authority in specific cases, after public notice and hearing, to authorize, by permit, a variation from the use, height and area district regulations herein established in harmony with their general purpose and intent as follows:

(1)

The erection and use of a building, or an addition to an existing building of a public service corporation and for public utility purposes, in any location to a greater height or larger area than the district requirements herein established, which the board shall find reasonably necessary for the public convenience.

(2)

The reconstruction, within a period not to exceed 12 months, of a building location in a district restricted against its use which has been destroyed by fire or other calamity, to the extent of not more than 75 percent of its assessed valuation.

G.

Use Variance. A use variance may be allowed by the Zoning Board of Appeals only in cases where there is reasonable evidence of unnecessary hardship in the official record of the hearing, and that all of the following conditions are met:

(1)

The applicant has demonstrated that the site cannot reasonably be used for any of the uses allowed within the current zoning district designation. The Zoning Board of Appeals may require submission of documentation from professionals or certified experts to substantiate this finding.

(2)

That the condition or situation of the specific parcel of property or the intended use of such property for which the variance is sought is unique to that property and not commonly present in the general vicinity or in the zoning district. The applicant must prove that there are certain features or conditions of the land that are not generally applicable throughout the zone and that these features make it impossible to earn a reasonable return without some adjustment. Such unique conditions or situations include:

(a)

Exceptional narrowness, shallowness or shape of a specific property on the effective date of the ordinance from which this chapter is derived.

(b)

Exceptional topographic conditions or other extraordinary situation on the land, building or structure.

(c)

The use or development of the property immediately adjoining the property in question.

(d)

Any other physical situation on the land, building or structure deemed by the Zoning Board of Appeals to be extraordinary.

(3)

The use variance will not alter the essential character of the neighborhood, be contrary to the intent of the Master Plan, or be a detriment to adjacent properties.

(4)

The capacity and operations of public roads, utilities, other facilities and services will not be significantly compromised.

(5)

The immediate practical difficulty causing the need for variance request was not self-created by the applicant.

H.

Assistance. The board may call upon the Mayor of the City to secure the assistance of any other City department in the performance of its duties and it shall be the duty of such other departments to render such assistance as may be reasonably required.

I.

Expiration.

(1)

No order of the Zoning Board of Appeals permitting the erection or alteration of buildings or structures shall be valid for a period longer than one (1) year, unless a building permit for the erection or alteration is obtained within such period and the erection or alteration is commenced and proceeds to completion in accordance with the terms of the permit. The Zoning Administrator may grant extensions, not to exceed six (6) months for each extension, upon a showing of good cause and good faith effort being made to achieve completion.

(2)

No order of the Zoning Board of Appeals permitting a use of a building or premises shall be valid for a period longer than one (1) year unless the use is established within such period; provided, however, that if the use is dependent upon the erection or alteration of a building, the order shall continue in full force and effect if a building permit is obtained within such period and the erection or alteration is commenced and proceeds to completion in accordance with the terms of the permit.

(Ord. No. 600, § 1, 1-8-2018)