The intent of this article is to outline procedures and standards
for the Zoning Board of Appeals (ZBA) when considering requests for
variances and appeals.
Any person or entity aggrieved by a decision of the Township
staff or Planning Commission may appeal the decision to the ZBA.
A. An appeal shall be made within 30 days of a decision by the Township.
B. The grounds of the appeal shall be specified in writing by the appellant.
C. All documentation upon which the action was taken shall be provided
to the ZBA.
D. An appeal shall stay all proceedings in furtherance of the action
appealed, except if the person from whom the appeal is taken certifies
to the ZBA, after the appeal has been filed, that a stay would cause
imminent peril to life or property, in which case the proceedings
may be stayed only by a restraining order issued by the ZBA or circuit
court.
E. The ZBA shall reverse, modify or refer back with findings a decision
of the Township staff or the Planning Commission only if it finds
that the action or decision appealed meets at least one of the following
conditions:
(1)
Was arbitrary or capricious.
(2)
Was based on an erroneous finding of fact.
(3)
Constituted an abuse of discretion.
(4)
Was based on erroneous interpretation of this chapter.
Types of variances and review criteria are identified below.
The ZBA shall have the authority to grant a lesser variance than requested.
In addition, the ZBA may require conditions related to the site, operation
and/or use to mitigate the impact of any variance.
A. Non-use variances. The ZBA may authorize a variance from this chapter
when the applicant demonstrates all of the following conditions exist:
(1)
Practical difficulty. A practical difficulty exists on the subject
site, such as exceptional narrowness, shallowness, shape or area,
or presence of floodplain or topographic conditions, and strict compliance
with the requirements of this chapter would render conformity unnecessarily
burdensome. The practical difficulty shall have bearing on the subject
site, or use of the subject site, and not to the applicant personally.
Economic hardship or profit potential is not a consideration for practical
difficulty.
(2)
Unique situation. The demonstrated practical difficulty results
from exceptional or extraordinary circumstances or conditions applying
to the subject site at the time the ordinance was adopted, or amended,
which are different than typical properties in the same zoning district
or the vicinity.
(3)
Not self-created. The conditions resulting in a variance request
can not be self-created and would have existed regardless of ownership
of the property.
(4)
Substantial justice. The variance would provide substantial
justice by granting property rights similar to those enjoyed by the
majority of other properties in the same zoning district or the vicinity.
The decision shall not bestow upon the property special development
rights not enjoyed by other properties in the same zoning district
or which might result in substantial adverse impacts on properties
in the vicinity. Adverse impacts may include, but are not limited
to, the supply of light and air, significant increases in traffic,
increased odors, noise, use, an increase in the danger of fire, or
other activities which may endanger the public health, safety or welfare.
(5)
Minimum variance necessary. The variance shall be the minimum
necessary to grant relief created by the practical difficulty.
(6)
Compliance with other laws. The variance shall be the minimum
necessary to comply with state or federal laws, such as farming activities
protected by the Right to Farm Act or accessibility to meet the needs
of individuals with disabilities protected under the Americans with
Disabilities Act.
B. Variance from Article
28, Private Roads. The ZBA may grant a variance from the standards of Article
28, Private Roads, when the applicant demonstrates all of the following conditions exist:
(1)
A practical difficulty exists on the subject site, such as exceptional
narrowness, shape, area or topographic features, presence of quality
trees, limited sight distance, wetlands, floodplain or other physical
conditions related to the property, that makes compliance with the
requirements of this chapter unnecessarily burdensome or would result
in unnecessary loss of important natural features.
(2)
Granting the variance will not compromise traffic operations,
public safety or accessibility by emergency vehicles.
C. Variance from Article
29, Wireless Communications. The ZBA may grant a variance from the standards of Article
29, Wireless Communications, when the applicant demonstrates that one or more of the following conditions exist:
(1)
The location requirements of this chapter do not reasonably
address the applicant's coverage or capacity needs.
(2)
Co-location is not feasible because existing structures cannot
support the facility, co-location would result in unreasonable interference,
or reasonable financial terms are not available.
(3)
The tower is self-collapsing and the setback area provided will
accommodate the structure and provide a reasonable buffer should it
fall or break.
(4)
An increased tower height is required as a result of signal
interference due to topography, tall buildings, trees or other obstructions
or would reduce the number of towers to the benefit of the Township.
(5)
Negative impacts are mitigated through provision for future
co-location.
(6)
The wireless communications and accessory facilities are designed
to be compatible with the existing character of the proposed site,
neighborhood and general area, such as a steeple, bell tower or similar
form.
D. Use variance. A use variance may be requested when a proposed use
is not listed as a permitted or a special land use in the district
in which the property is located. Approval of a use variance requires
2/3 of the entire ZBA membership (five votes). Use variances shall
only be granted when the applicant demonstrates that all of the following
conditions exist:
(1)
The proposed use is compatible with existing or planned uses
on surrounding properties.
(2)
The site cannot reasonably be used for any of the uses allowed
under current zoning.
(3)
Public utilities and streets are sufficient to accommodate the
proposed use.
(4)
An unnecessary hardship exists on the subject property due to
very unique circumstances, such as:
(a)
Exceptional narrowness, shallowness or shape of the property;
(b)
Exceptional topographic conditions or other extraordinary situation
pertaining to the land, building or structure;
(c)
The use or development of the property immediately adjoining
the subject property; or
(d)
Any other physical situation pertaining to the land, building
or structure as determined by the ZBA.
(5)
The requested use variance is the minimum necessary to permit
a reasonable use of the land.
(6)
The conditions causing the use variance request were not created
by any affirmative action of the applicant and would have existed
regardless of ownership of the property.
E. Fence variance. The ZBA may grant a variance from the standards of Article
31, Fences, when the applicant demonstrates all of the following conditions exist:
(1)
A practical difficulty is present on the property and results
in conditions which do not generally exist throughout the Township.
(2)
The practical difficulty which will result from a failure to
grant the variance includes substantially more than mere inconvenience
or an inability to attain a higher financial return.
(3)
Granting the variance will result in substantial justice, considering
the hardships that will be suffered by a failure of the ZBA to grant
a variance, the rights of others whose property would be affected
by the variance and the public and the general purpose of the fence
standards.
F. Text interpretations. The ZBA shall be responsible for interpreting
the provisions or meaning of standards contained in this chapter in
such a way as to carry out the stated intent of the zoning districts,
chapter and the goals of the Master Plan. In making an interpretation,
the ZBA shall adhere to the following:
(1)
The ZBA shall avoid broad interpretations.
(2)
Text interpretations shall be confined to the question raised,
shall be based on a thorough reading and understanding of the entire
chapter and shall not have the effect of amending the chapter.
(3)
If the chapter is silent on a particular use, and the use is
not deemed similar to others already listed in the chapter, the ZBA
does not have the authority to make such an interpretation; instead,
the applicant must seek a use variance from the ZBA or an amendment
from the Board of Trustees following an evaluation, public hearing
and recommendation by the Planning Commission.
G. Map interpretations. The ZBA shall be responsible for interpreting
the boundaries of the Zoning Map where the actual alignment of streets
or natural features used to separate zoning districts varies from
the alignment shown on the Zoning Map or where the zoning district
boundary does not follow property lines but was intended to do so.
(1)
Map interpretations should be made based on relevant historical
information, including prior editions of the Zoning Map, and current
and prior editions of the Master Plan Map.
H. Text amendments. The ZBA may suggest text amendments to the Planning
Commission and Board of Trustees based upon the frequent application
for, or granting of, specific variances or problems with interpretation.
Suggestions shall be submitted in writing to the Planning Commission.
Any approval granted by the ZBA may be made subject to conditions,
provided the conditions ensure the applicable review standards are
satisfied. For site plan or design-related conditions, the ZBA may
require the plans be reviewed and approved by staff or the Planning
Commission. Any conditions must be made part of the record of the
approval. The ZBA may require that a bond or performance guarantee
be furnished to insure compliance with certain conditions.
The ZBA shall not have the power to alter or change the zoning district classification of any property, approve a variance within special development options, except as permitted by Article
20, overturn a Planning Commission decision to deny a special land use, or make ordinance text amendments.
Variances shall be valid for one year, except for the following
conditions:
A. If the Planning Commission grants an extension of an approved site
plan, the variance approval shall expire when, or if, the site plan
approval expires.
B. If a building permit is obtained and meaningful construction is continually
proceeding toward completion in accordance with the terms of the building
permit.