City of New Buffalo, MI Article 21 Zoning Board of Appeals

Section 21-1 Creation and membership.

There is hereby created a Zoning Board of Appeals, herein referred to as the "Board of Appeals," the membership, powers and duties of which are prescribed in this ordinance.

Section 21-2 Composition.

The Board of Appeals shall consist of seven members, one of whom shall be a citizen member of the Planning Commission with appointment by the City Council coinciding with that persons term on the Planning Commission, and six members who shall be appointed by the City Council. In the latter instance and for initial appointments, two of said members shall be appointed for a one-year term, and two of said members shall be appointed for a two-year term, and two members shall be appointed for a full three-year term. After initial appointments each member shall serve three-year terms. In addition, the City Council may appoint two alternate members who shall serve three-year terms. All of the regular and alternate members of the Board shall be citizens of the United States and primary residents of the City of New Buffalo. No elected officer or employee of the City of New Buffalo shall be a member of the Board. Any vacancy in the Board shall be filled by the City Council for the remainder of the unexpired term.

Section 21-3 Rules of procedure.

The Board shall annually elect its own Chairman, Vice Chairman and Secretary. Meetings of the Board shall be held at the call of the Chairman and at such times as the Board may determine by rule. All meetings of the Zoning Board of Appeals shall be open to the public.

Section 21-4 Meetings.

A. Meetings. All meetings of the Zoning Board of Appeals shall be held at the call of the Chairman and at such times as such Board of Zoning Appeals may determine. All hearings conducted by the Board of Zoning Appeals shall be open to the public. The City Zoning Administrator or his/her representative, shall keep minutes of its proceedings showing the vote of each member upon each question, or if absent or failing to vote, indicating such fact; and shall also keep records of its hearings and other official action. Four members of the Zoning Board of Appeals shall constitute a quorum for the conduct of its business. The Zoning Board of Appeals shall have the power to subpoena and require the attendance of witnesses, administer oaths, compel testimony and the production of books, papers, files and other evidence pertinent to the matters before it.

B. Hearings. The Zoning Board of Appeals shall make no decision regarding a variance except after a public hearing is conducted by the Zoning Board of Appeals. Notification of hearings shall be in accordance with the following requirements:

1. Public notice of the appeal shall be sent by regular mail or personally delivered at least 15 days prior to the scheduled hearing to all persons owning real property within 300 feet of the premises in question, and to the occupants of single and multiple-family dwellings within 300 feet.

2. The public notice shall be addressed to the respective owners and tenants at the address given in the last assessment roll. If the tenant's name is not known, the term "occupant" may be used.

3. An affidavit of mailing shall be maintained.

4. The applicant shall be notified by certified mail at least 15 days prior to the scheduled hearing.

Section 21-5 Jurisdiction.

The Zoning Board of Appeals shall not have the power to make any change in the terms of this ordinance, but does have power to act on those matters where this ordinance provides for an administrative review, interpretation, and to authorize a variance as defined in this section and the laws of the State of Michigan. The Zoning Board of Appeals shall not have the authority to hear appeals from a decision made in respect to any special land use, planned unit development, or rezoning. The powers of the Zoning Board of Appeals include:

A. Hearing of appeals. To hear and decide appeals where it is alleged by the appellant that there is an error in any order, requirement, permit, decision or refusal made by the Zoning Administrator or any other administrative official in carrying out or enforcing any provisions of this ordinance.

B. Granting of variances. A variance from the specific requirements of this ordinance may be granted by the Zoning Board of Appeals in accordance with the requirements and procedures of this article.

C. Zoning ordinance interpretation. The Zoning Board of Appeals may interpret the provisions of this ordinance to carry out the intent and purposes of the Zoning Ordinance where the meaning of the provisions is uncertain.

D. Granting of temporary uses and buildings.

1. The Zoning Board of Appeals may permit, upon proper application, temporary uses or buildings not otherwise permitted in the district, not to exceed 12 months and to provide up to a twelve-month extension when appropriate.

2. The Zoning Board of Appeals, in granting permits for temporary uses and buildings, shall do so under the following conditions:

a. The granting of the temporary use or building shall in no way constitute a change in the basic uses permitted in the district nor on the property where the temporary use or building is permitted.

b. The granting of the temporary use or building shall be issued in writing, stipulating all conditions as to time, nature of development permitted and arrangements for removing the use at the termination of the temporary permit.

c. All setbacks, land coverage, off-street parking, lighting and other requirements shall be made at the discretion of the Zoning Board of Appeals.

d. The use or building shall be in harmony with the general character of the district.

e. No temporary permit shall be granted without first giving notice to owners of adjacent property of the time and place of a public hearing to be held as provided for in this ordinance.

f. Prior to granting a temporary permit the Board may seek the review and recommendation of the Planning Commission.

Section 21-6 Decisions.

A. Procedure. An appeal may be taken by a person aggrieved, or by an officer, department, or board of the City. Such appeal shall be taken within 21 days, as prescribed by the rules of the Zoning Board of Appeals, by the filing with the officer or body from whom the appeal is taken and with the Zoning Board of Appeals of a notice of appeal specifying the grounds for the appeal.

B. Filing. The party from whom the appeal is taken shall immediately transmit to the Zoning Board of Appeals all the papers constituting the record upon which the action appealed was taken. These papers shall include a completed application form and site plan along with staff review comments. Said site plan shall include the following information:

1. Project Information, including:

a. The applicant's name;

b. North arrow;

c. Complete and current legal description and size of property in acres;

d. Size of property in acres or square feet;

e. A survey shall be required for dimensional variance.

2. Existing features.

a. Property lines and dimensions;

b. Zoning and current land use of applicant's property and all abutting properties and of properties across any public or private street from the site;

c. Lot lines and all structures on the property;

d. The Zoning Board of Appeals may require buildings and structures within 100 feet of the site's property lines to also be shown.

3. Proposed construction.

a. Building footprints, setbacks, and building height; and

b. Location and dimensions of parking spaces (if applicable).

4. Additional information may be required by the Zoning Board of Appeals, including, but not limited to:

a. Existing and proposed topography;

b. Location and method of screening waste dumpsters;

c. A landscaping plan;

d. Details of exterior lighting;

e. Details of site circulation and access design;

f. Any information specified in Section 19-6 which the Zoning Board of Appeals determines to be necessary in order to properly evaluate the request and render a decision.

5. A completed application form, supplied by the Zoning Administrator, and an application fee.

C. Stay of proceedings. An appeal stays all proceedings in furtherance of the action appealed from unless the officer or body from whom the appeal is taken certifies to the Zoning Board of Appeals, 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, in which case proceedings shall not be stayed otherwise than by a restraining order. This restraining order may be granted by the Zoning Board of Appeals or Circuit Court on application or notice to the officer or body from whom the appeal is taken and due cause shown.

D. Decisions.

1. The concurring vote of a majority of the membership of the Board shall be required to reverse an order, requirement, decision, or determination of an administrative official or body, or to decide in favor of the applicant a matter upon which the Board is required to pass, or to effect a variation in the ordinance; except that a concurring vote of 2/3 of the membership shall be necessary to grant a use variance.

2. The Zoning Board of Appeals shall render its decision upon any appeal or application submitted to it within 60 days after the hearing thereon.

3. All decisions of the Zoning Board of Appeals shall become final five days after the date of entry of an order, unless the Board shall find, and so certify on the record, that it is necessary to cause such order to have immediate effect, in order to preserve property or personal rights.

4. Any variance granted by the Board shall only be valid for a period of 12 months from the date of approval, unless substantial construction, as determined by the Board, has occurred and is progressing meaningfully toward completion. The Board may grant up to an additional twelve-month extension, if requested by the property owner in writing prior to the expiration of the original twelve-month period, upon showing that the expiration of the variance will cause an undue hardship on the owner.

E. Record of actions. For each decision of the Zoning Board of Appeals, a record shall be prepared. Such record shall include, at a minimum, the following items:

1. Description of the applicant's request.

2. The Zoning Board of Appeal's motion including an explanation of how the request meets each standard outlined in Section 21-8B, for non-use variances, or Section 21-8C, for use variances, or conversely, an explanation of how the request does not meet each said applicable standard.

3. The Board's vote on the motion.

4. A summary or transcription of all relevant material and evidence presented at hearing; and

5. Any conditions attached to an affirmative decision.

F. Appeals to circuit court. The decision of the Zoning Board of Appeals shall be final. However, a person having an interest affected by the decision of the Zoning Board of Appeals may appeal to the Circuit Court. Upon appeal, the Circuit Court shall review the record in accordance with the requirements of the City/Village Zoning Act.[1] The court may affirm, reverse, or modify the decision of the Zoning Board of Appeals, or may remand the decision to the Zoning Board of Appeals for further hearings or action.

[1] Editor's Note: See now the Michigan Zoning Enabling Act, MCLA § 125.3101 et seq.

G. Resubmission. No variance request which has been decided by the Zoning Board of Appeals shall be submitted for reconsideration within a one-year period from the date of the original application unless the Board finds that at least one of the following conditions exist:

1. That the conditions involving all of the reasons for the original denial have been significantly altered.

2. That new conditions or circumstances exist which change the nature of the original request.

Section 21-7 Conditions of approval.

A. The Zoning Board of Appeals may impose reasonable conditions in conjunction with approval of an appeal, variance, or any other decision which they are required to make.

B. Conditions shall be imposed in a manner in accordance with the City/Village Zoning Act[1] and related to the standards by which the decision is reached.

[1] Editor's Note: See now the Michigan Zoning Enabling Act, MCLA § 125.3101 et seq.

C. The Zoning Administrator shall prepare within five days of the Board meeting, a written statement of each of the Board's actions, specifying the motion, vote, and conditions imposed. This statement shall be signed and dated by the applicant.

D. The Board of Appeals may require that the applicant demonstrate compliance with all required conditions prior to the issuance of a building permit by the Building Official and/or require a performance guarantee in accordance with Section 22-3B.

Section 21-8 Variance procedures.

A. Authority for variances. The Zoning Board of Appeals, after public hearing, shall have the power to grant requests for variances from the provisions of this ordinance where it is proved by the applicant that there are practical difficulties or unnecessary hardship in the way of carrying out the strict letter of the ordinance relating to the construction, equipment, or alteration of buildings or structures so that the spirit of the ordinance shall be observed, public safety secured and substantial justice done.

B. Granting of non-use variances. A non-use variance may be allowed by the Zoning Board of Appeals only in cases where there is reasonable evidence of practical difficulty in the official record of the hearing and that all of the following conditions are met:

1. That there are exceptional or extraordinary circumstances or conditions applying to the property in question that do not apply generally to other properties in the same zoning district;

2. That the condition or situation of the specific piece of property for which the variance is sought is not of so general or recurrent a nature as to make reasonably practical the formulation of a general regulation for such conditions or situations. Unique circumstances include: exceptional narrowness, shallowness or shape of a specific property on the effective date of this article, or by reason of exceptional topographic conditions or other extraordinary situation on the land, building or structure or by reason of the use or development of the property immediately adjoining the property in question, the literal enforcement of the requirements of this article would involve practical difficulties;

3. That such variance is necessary for the preservation and enjoyment of a substantial property right similar to that possessed by other properties in the same zoning district and in the vicinity. The possibility of increased financial return shall not of itself be deemed sufficient to warrant a variance;

4. The variance will not be significantly detrimental to adjacent property and the surrounding neighborhood;

5. The variance will not impair the intent and purpose of this ordinance;

6. The immediate practical difficulty causing the need for the variance request was not created by any action of the applicant.

C. Granting of use variances. 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 that all of the following conditions are met:

1. That the building, structure, or land cannot be reasonably used for any of the uses permitted by right or special approval in the zone district in which it is located.

2. That the condition or situation of the specific piece of property or the intended use of such property for which the variance is sought is not of so general or recurrent a nature as to make reasonably practical the formulation of a general regulation for such conditions or situations. Unique circumstances include: exceptional narrowness, shallowness or shape of a specific property on the effective date of this article, or by reason of exceptional topographic conditions or other extraordinary situation on the land, building or structure or by reason of the use or development of the property immediately adjoining the property in question, the literal enforcement of the requirements of this article would cause unnecessary hardship.

3. That the proposed use will not alter the essential character of the neighborhood.

D. Prior to Zoning Board of Appeals hearing on a request for a use variance, the Planning Commission shall consider such request and forward a report to the Zoning Board of Appeals. For this report the Planning Commission shall consider the Master Plan, the ability of the property owner to use the property for a use already permitted under the existing zoning classification, the effect of the request on the essential character of the neighborhood, and other such factors as the Planning Commission may deem relevant.

Section 21-9 Fees.

The City Council may prescribe and amend by resolution a reasonable schedule of fees to be charged to applicants for appeals to the Zoning Board of Appeals.

Section 21-10 Appeals of special land uses and planned unit developments.

The Board of Appeals is not authorized to receive, hear, nor act on appeals of special land uses and planned unit developments.