ARTICLE V: ZONING BOARD OF APPEALS
Section
5.01 Intent and Purpose
The purpose of this Article
is to ensure that the objectives of this Ordinance are fully and equitably
achieved, that a means be provided for competent interpretation of this
Ordinance, that flexibility be provided for in the strict application of this
Ordinance, that the spirit of the Ordinance be observed, public safety secured,
and substantial justice done.
Section
5.02 Membership; Appointment of
Members; Terms of Office; Removal
A. Membership: A Zoning Board of Appeals, first established by the Zoning Ordinance adopted
B. Appointment
of Members: The Township Board may
appoint not more than two (2) alternate members for the same term as regular
members of the Zoning Board of Appeals. No alternate
member may be either a member of the Township Board or the Planning Commission. The alternate members may be called as
needed, on a rotating basis, to sit as regular members of the Zoning Board of
Appeals in the absence
of a regular member if the regular member is absent from or will be unable to
attend one (1) or more consecutive meetings of the Zoning Board of
Appeals. 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 Zoning Board of Appeals.
C. Terms
of Office: Members shall be
appointed for three (3) year terms except for members serving because of their
membership on the Planning Commission or Township Board, whose terms shall be
limited to the time they are members of those bodies. A successor shall be appointed not more than
one (1) month after the term of the preceding member has been expired.
Vacancies for unexpired terms shall be filled for the remainder of the
term.
D.
Removal: A member of the zoning board of appeals may be removed by the
legislative body for misfeasance, malfeasance, or nonfeasance in office upon
written charges and after public hearing. A member shall disqualify himself or
herself from a vote in which the member has a conflict of interest. Failure of
a member to disqualify himself or herself from a vote in which the member has a
conflict of interest constitutes malfeasance in office.
A. Rules
of Procedure: The Zoning Board of
Appeals shall adopt
rules of procedure for the conduct of its meetings and the implementation of
its duties. The Zoning Board of Appeals shall annually
elect a chairperson, a vice chairperson, and a secretary.
B. Meetings
and Quorum: Meetings of the Zoning
Board of Appeals shall be held
at the call of the chairperson and at such other times as the Zoning Board of
Appeals’ Rules of Procedure may specify. The Zoning Board of Appeals shall not conduct
business unless a majority of the regular members of the Zoning Board of
Appeals are present. All meetings shall
be open to the public and conducted pursuant to the requirements of the Open
Meetings Act, PA 267 of 1976.
C. Oaths
and Witnesses: The chairperson or, in his or her absence, the acting
chairperson may administer oaths and compel the attendance of any witness in
order to ensure a fair and proper hearing.
D. Records:
The minutes of all meetings shall contain the grounds for every determination
made by the Zoning Board of Appeals including all
evidence and data considered, all findings of fact and conclusions drawn by the
Zoning Board of Appeals for every
case, along with the vote of each member and the final ruling on each
case. The Zoning Board of Appeals shall
file its minutes in the office of the Township Clerk.
E. Legal
Counsel: An attorney for the
Township shall act as legal counsel for the Zoning Board of Appeals pursuant to
procedures established by the Township Board.
The Zoning Board of Appeals shall act upon
questions as they arise in the administration of the Zoning Ordinance. The Zoning Board of Appeals shall perform
its duties and exercise its powers as provided in the Michigan Zoning Enabling
Act, PA 110 of 2006, as amended. The
Zoning Board of Appeals 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 the Zoning Ordinance, but does have the power to act on those matters
for which the Zoning Ordinance provides an administrative review,
interpretation, variance, or temporary land use permit. Within this capacity the Zoning Board of
Appeals may reverse or affirm, wholly or partly, or may modify the order,
requirement, decision, or determination of any Township official or the Planning
Commission, or any official administering or enforcing the provisions of the
Zoning Ordinance as set forth in Section 5.05 and may issue or direct the
issuance of a permit.
Section 5.05 Authorized
Appeals
The Zoning Board of Appeals shall hear the
following specified categories of appeals in accordance with the following
standards:
A. Administrative
Review: The Zoning Board of Appeals shall 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 any Township
official or by the Planning Commission in administering or enforcing the
provisions of the Zoning Ordinance.
B. Interpretation
of the Ordinance: The Zoning Board of Appeals shall hear and
decide upon requests to:
1. Interpret
the provisions of the Zoning Ordinance when it is alleged that certain
provisions are not clear or that they could have more than one meaning. In
deciding upon such request, the Zoning Board of Appeals shall ensure
that its interpretation is consistent with the intent and purpose of the Zoning
Ordinance, the Article in which the language in question is contained, and all
other relevant provisions in the Zoning Ordinance.
2. Determine
the precise location of the boundary lines between zoning districts when there
is dissatisfaction with a decision made by the Zoning Administrator. (See
Section 7.04.)
3. Classify
a use that is not specifically mentioned as a part of the use regulations of
any zoning district so that it conforms to a comparable permitted or prohibited
use, in accordance with the purpose and intent of each district. Where there is no comparable permitted or
prohibited use, the Zoning Board of Appeals shall so
declare, the effect being that use is not permitted in the Township until or
unless the text of the Zoning Ordinance is amended to permit it.
4. Determine
the parking space requirements of any use not specifically mentioned by
classifying it with one of the groups listed in Article XIV by an analysis of
the specific needs. If no comparable use
is found, the Zoning Board of Appeals shall so
inform the petitioner and indicate that the parking space requirements will
have to be established by amendment of the Zoning Ordinance.
C. Variances
The
ZBA shall have the power to authorize, upon appeal, specific
variances from such dimensional requirements as lot area and width regulations, building height and
square foot regulations, yard width and depth regulations, such requirements as
off‑street parking and
loading space, and sign regulations, and other similar requirements as
specified in the Zoning Ordinance. To
obtain a variance, the applicant
shall submit sufficient information to enable the Board of Appeals to determine
that a practical difficulty exists, by explaining:
1.
How the strict enforcement of the provisions of the Township Zoning
Ordinance would cause practical difficulties and deprive the owner of rights
enjoyed by all other property owners owning property within the same zoning
district.
2. The
conditions and circumstances unique to the property, which are not similarly
applicable to other properties in the same zoning district.
3.
The conditions and circumstances unique to the
property were not self created
4. Why
the requested variance will not confer special privileges that are
denied other properties similarly situated and in the same zoning district.
5. Why
the requested variance will not be contrary to the spirit and intent
of the Zoning
Ordinance.
6. The difficulty shall not be deemed solely
economic.
Use variances are strictly
prohibited. A variance shall not permit
the establishment, within any district,
of any use, which is not permitted by right, special use permit or by a
temporary land use.
The
Zoning Board of Appeals shall not approve an application for a variance unless it has found positively that a
practical difficulty exists under the preceding criteria.
D. Conditions: In granting any variance, the Zoning Board of
Appeals may prescribe
appropriate conditions and safeguards in conformity with this Ordinance. (See
Section 6.15.) 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 Ordinance and shall
automatically invalidate the variance.
E. Variance Authorization Period: Each variance granted
under the provisions of this Ordinance shall become null and void unless:
1. The construction authorized by such variance or permit has
commenced within six (6) months of granting of the variance.
2. The occupancy of land, premises, or buildings has taken
place within one (1) year after the granting of the variance.
F. Rehearing: No rehearing on an application denied by
the Zoning Board of Appeals shall be reconsidered except upon the grounds
of newly discovered evidence or a falsehood previously relied upon which is
found upon inspection by the Zoning Board of Appeals to be valid. A
rehearing shall be processed in the same manner as the original application,
including payment of the required fee. A request for rehearing shall be made on
behalf of the applicant by either the Township Board or Zoning Board of Appeals
within eight (8) days. No land use permit shall be granted which relies upon a
variance before eight (8) days following the decision of the Zoning Board of
Appeals have expired.
G. Reapplication: After eight (8) days following a
decision by the Zoning Board of Appeals, no application for a
variance, Ordinance interpretation, or appeal which has been denied, wholly or
in part, by the Zoning Board of Appeals shall be resubmitted
for a period of one (1) year from the date of the last denial, except on proof
of changed conditions found upon inspection by the Board to be valid.
Section
5.06 Appeal Procedures
A. Notice
of Appeal: Appeal requests for Ordinance interpretation and requests for variances may be made to the Zoning Board of Appeals by any person
aggrieved, or by an officer, or department, board, or bureau of the
state or of the Township, by filing a written Notice of Appeal with the Township
Clerk on forms established for that purpose and accompanied with such
information as is necessary to decide such request. At a minimum, eight (8)
copies of the information required to be submitted for a land use permit
(either a plot plan or site plan) in Section 4.03.D. shall be submitted. Upon
receipt of a Notice of Appeal, the Township Clerk shall promptly transmit the
records concerning the appealed action, as well as any related information to
the chairperson of the Zoning Board of Appeals. Any appeal
from the ruling of the Zoning Administrator concerning the enforcement of the
provisions of this Ordinance shall be filed within thirty (30) days after the
date of the Zoning Administrator's decision or the decision shall be final.
B. Stay:
An appeal shall stay all proceedings in furtherance of the action appealed from
unless the Zoning Administrator certifies to the Zoning Board of Appeals after notice
of appeal has been filed with he or she, that by reason of facts stated in the
certificate a stay would, in the Zoning Administrator's opinion, cause imminent
peril to life or property, in which case the proceedings shall not be stayed
otherwise than by a restraining order, issued by the Zoning Board of Appeals or by a court
of record.
C. Hearing:
Upon receipt of a Notice of Appeal or of an application for
Ordinance interpretation, or variance request, the chairperson of the Zoning Board of Appeals shall schedule
a reasonable time and date for a public hearing and give notice as provided in
section 103 of PA 110 of 2006, as amended.
Upon
receipt of a Notice of Appeal seeking an interpretation of the Zoning
Ordinance, or an appeal of an administrative decision, a notice stating the
time, date, and place of the public hearing shall be published in a newspaper
of general circulation within the Township and shall be sent to the person
requesting the interpretation not less than fifteen (15) days before the public
hearing.
If
the request for an interpretation or appeal of an administrative decision
involves a specific parcel, written notice stating the nature of the
interpretation request and the time, date,and place of the public hearing on
the interpretation request shall be sent by first-class mail or personal
delivery to all persons to whom real property is assessed within three hundred
(300) feet of the boundary of the property in question and to all occupants of
all structures within three hundred (300) feet of the boundary of the property
in question. If a tenant’s name is not
known, the term “occupant” may be used.
D. Appearance:
At the hearing, a party may appear in person or by agent or attorney. The Zoning Board of Appeals may recess
such hearing from time to time, and, if the time and place of the continued
hearing are announced at the time of adjournment, no further notice shall be
required.
E. Decision:
The Zoning Board of Appeals shall render
its decision within sixty (60) days of filing of a Notice of Appeal, or
application for Zoning Ordinance interpretation or variance, unless in the
opinion of Zoning Board of Appeals, an extension of time is necessary to review
information pertinent to making the decision.
The concurring vote of a majority of the members of the Zoning Board of
Appeals shall be necessary to reverse an order, requirement, decision, or
determination of the administrative official or body, to decide in favor of the
applicant on any matter upon which the Zoning Board of Appeals is required to
pass under the Zoning Ordinance or to grant a variance in the Zoning
Ordinance.
F. Fee:
A fee as established by the Township Board shall be paid to the Township Clerk
at the time the petitioner files an application with the Zoning Board of
Appeals. The purpose
of such fee is to cover, in part, the necessary advertisements, investigations,
hearing records and other expenses incurred by the Board in connection with the
appeal. No fee shall be charged if the
Township is the moving party.
G. Performance
Guarantee: In authorizing any variance, or in granting any temporary
dwelling permits, the Zoning Board of Appeals may require
that a cash deposit, certified check, irrevocable bank letter of credit, or similar
instrument acceptable to the Township covering the estimated cost of conditions
or improvements associated with a project for which zoning approval is sought,
be deposited with the Township Clerk to insure faithful conformance with the
conditions or completion of the improvements. Such performance guarantee shall
be collected and returned pursuant to the requirements of Section 4.06.
Section
5.07 Review By Circuit
Court
The decision of the Zoning
Board of Appeals shall be
final. A party aggrieved by the decision
may appeal to the circuit court for