It is recognized that there are certain instances where it would
be in the best interest of the Township, 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 Section 405 of the Michigan Zoning
Enabling Act, PA 110 of 2006,[1] 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.
[1]
Editor's Note: See MCLA § 125.3405.
A.
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.
B.
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.
C.
The owner's offer of conditions may not purport to authorize uses
or developments not permitted in the requested new zoning district.
D.
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.
E.
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.
F.
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.
G.
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 Township Board, 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.
The Planning Commission, after public hearing and consideration
of the factors for rezoning set forth in this chapter, 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.
After receipt of the Planning Commission's recommendation, the
Township Board shall deliberate upon the requested rezoning and may
approve or deny the conditional rezoning request. The Township Board's
deliberations shall include, but not be limited to, a consideration
of the factors for rezoning set forth in this chapter. Should the
Township Board 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 Township
Board shall, in accordance with the provisions of the Michigan Zoning
Enabling Act, PA 110 of 2006,[1] refer such amendments to the Planning Commission for a
report thereon within a time specified by the Township Board and proceed
thereafter in accordance with said statute to deny or approve the
conditional rezoning with or without amendments.
[1]
Editor's Note: See MCLA § 125.3101 et seq.
A.
If the Township Board 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 Township Board to accomplish
the requested rezoning.
B.
The statement of conditions shall:
(1)
Be in a form recordable with the Berrien County Register of
Deeds 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 Township Board.
(2)
Contain a legal description of the land to which it pertains.
(3)
Contain a statement acknowledging that the statement of conditions
runs with the land and is binding upon successor owners of the land.
(4)
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.
(5)
Contain a statement acknowledging that the statement of conditions
or an affidavit or memorandum giving notice thereof may be recorded
by the Township with the Register of Deeds.
(6)
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.
C.
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 Township
Clerk shall maintain a listing of all lands rezoned with a statement
of conditions.
D.
The approved statement of conditions or an affidavit or memorandum
giving notice thereof shall be filed by the Township with the Register
of Deeds. The Township Board 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 Township
or to any subsequent owner of the land.
E.
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.
A.
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 and/or specific performance as provided
by law.
B.
No permit or approval shall be granted under this chapter for any
use or development that is contrary to an applicable statement of
conditions.
Unless another time period is specified in this chapter 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 one year after the rezoning took effect and thereafter
proceed diligently to completion. This time limitation may, upon written
request, be extended by the Township Board if:
A.
It
is demonstrated to the Township Board'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; and
B.
The
Township Board 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.
If approved development and/or use of the rezoned land does not occur within the time frame specified under § 380-19.07 above, then the land shall revert to its former zoning classification. The reversion process shall be initiated by the Township Board 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.
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 § 380-19.08 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 Township Clerk shall record with the Register of Deeds a notice that the statement of conditions is no longer in effect.
A.
During the time period for commencement of an approved development
or use or during any extension thereof granted by the Township Board,
the Township shall not add to or alter the conditions in the statement
of conditions.
B.
The statement of conditions may be amended thereafter in the same
manner as was prescribed for the original rezoning and statement of
conditions.
Nothing in the statement of conditions nor in the provisions
of this section shall be deemed to prohibit the Township from rezoning
all or any portion of land that is subject to a statement of conditions
to another zoning classification. Any rezoning shall be conducted
in compliance with this chapter and the Michigan Zoning Enabling Act,
PA 110 of 2006.[1]
[1]
Editor's Note: See MCLA § 125.3101 et seq.
The Township 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.
In reviewing an application for the rezoning of land, whether
the application be made with or without an offer of conditions, factors
that should be considered by the Planning Commission and the Township
Board include, but are not limited to, the following:
A.
Whether the rezoning is consistent with the policies and uses proposed
for that area in the Township's Master Land Use Plan.
B.
Whether all of the uses allowed under the proposed rezoning would
be compatible with other zones and uses in the surrounding area.
C.
Whether any public services and facilities would be significantly
adversely impacted by a development or use allowed under the requested
rezoning.
D.
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.
