Zoning 6.4 Variances and Appeals

Chapter 4
Variances and Appeals

6.401 Jurisdiction, Powers, and Duties.

A. Powers and Duties. The Zoning Board of Appeals shall have the power and it shall be its duty to:

1. Generally. Hear and decide on all matters referred to it by the provisions of this Ordinance.

2. Appeals of Administrative Decision. Hear and decide appeals where it is alleged there is error of law in any order, requirement, decision or determination made by the building, planning, or public services department in the enforcement of this ordinance. See Section 6.405 for additional considerations.

3. Interpretation. Interpret the text of this Ordinance and all matters relating thereto whenever a question arises in the administration of this ordinance as to the meaning and intent of any provision or part of this ordinance. Any interpretations shall be in a manner as to carry out the intent and purpose of this ordinance and zoning map, and commonly accepted rules of construction for ordinances and laws in general. See Section 6.406 for additional considerations.

4. Variances. Where there are practical difficulties or unnecessary hardships, within the meaning of state law and this ordinance, in the way of carrying out the strict letter of this ordinance, the Zoning Board of Appeals shall have the power upon appeal in specific cases to authorize such variation or modification of the provisions of this ordinance so that the spirit of this ordinance shall be observed, public safety and welfare secured and substantial justice done. See Section 6.407 and Section 6.408 for additional considerations.

B. Review Considerations. In consideration of all appeals and all proposed variances to this ordinance the Zoning Board of Appeals shall, before granting any variance to this ordinance in a specific case, first determine that the proposed variance 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 values within the surrounding area or in any other respect impair the public health, safety, comfort, morals, or welfare of the inhabitants of the City.

C. Majority Vote Required. Except for use variances, the concurring vote of a majority of the Zoning Board of Appeals shall be necessary to reverse any order, requirement, or decision, or to decide in favor of the applicant on any matter upon which it is authorized by this ordinance to render a decision.

D. Limitations of Authority.

1. Nothing contained in this section shall be construed to give or grant to the Zoning Board of Appeals the power or authority to alter or change this ordinance or the zoning map or to rezone, such power and authority being reserved to the City Council.

2. Nothing in this section shall be construed to authorize the Zoning Board of Appeals to hear, review or decide any appeal from a decision of the City Council or Planning Commission to approve, approve with conditions, or deny a site plan or special exception use.

E. Conditions. In authorizing a variance or taking any other action within its jurisdiction, the Zoning Board of Appeals may attach such conditions as may be deemed necessary in the furtherance of the purposes of this ordinance, provided any conditions are in compliance with the standards for imposing conditions as contained in the Michigan Zoning Enabling Act, PA 110 of 2006 (as amended).

6.402 Exercising Powers.

In exercising the powers described in Section 6.401, the Zoning Board of Appeals may reverse or affirm, wholly or partly, or may modify the order, requirement, decision or determination appealed from and may take such order, requirement, decision or determination as ought to be made, and to that end shall have all the powers of the administrative official from whom the appeal is taken.

6.403 Notice.

The Zoning Board of Appeals shall make no recommendation except in a specific case and after a hearing conducted by such board. Notice such hearing shall be provided in the manner established in the Michigan Zoning Enabling Act, PA 110 of 2006 (as amended). Refer to Article 6, Chapter 9 for a summary of the noticing requirements and procedures set forth in the Michigan Zoning Enabling Act.

6.404 Effect of Actions.

A. Expiration of Approval.

1. No order of the zoning board of appeals permitting the erection or alteration of a building shall be valid for a period longer than 6 months unless a building permit for such erection or alteration is obtained within such period and such erection or alteration is started and proceeds to completion in accordance with the terms of the permit.

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 6 months unless such use is established within such period; however, where such use permitted is dependent upon the erection or alternation of a building, such order shall continue in force and effect if a building permit for the erection or alteration is obtained within such period and such erection or alteration is started and proceeds to completion in accordance with the terms of such permit.

B. Resubmittal. No request or appeal which the Zoning Board of Appeals has denied wholly or in part may be resubmitted to or reheard by the Zoning Board of Appeals for a period of 6 months, unless, as determined by Staff, one or more of the following conditions has been met:

1. There is a substantial change in circumstances relevant to the issues or facts considered during review of the application that might reasonably affect the Zoning Board of Appeals’ application of the relevant review standards to the request or appeal.

2. New or additional information is available that was not available at the time of the original review that might reasonably affect the Zoning Board of Appeals’ application of the relevant review standards to the request or appeal.

3. The new request or appeal is materially different from the prior request or appeal.

C. Appeal. The decision of the zoning board of appeals shall be final. A party aggrieved by the decision may appeal to the Circuit Court for Oakland County, as provided in Public Act No. 110 of 2006. An appeal to the Circuit Court for Oakland County shall be filed within 30 days after the board certifies its decision in writing or approves the minutes of its decision. The court shall have jurisdiction to make such further orders as justice may require. An appeal may be had from the decision of any circuit court to the court of appeals.

6.405 Appeals of Administrative Decisions.

A. Authority. An appeal may be taken to the zoning board of appeals by any person, business or corporation or by an officer, department, board or bureau affected by a decision of an administrative officer. Such appeal shall be taken within such time as shall be prescribed by the zoning board of appeals by general rule, by filing with the planning administrator and with the zoning board of appeals a notice of appeal, specifying the grounds of the appeal. The planning administrator shall forthwith transmit to the board all of the papers constituting the record upon which the action appealed from was taken.

In exercising the powers granted in this chapter, the zoning board of appeals may reverse or affirm, wholly or partly, or may modify the order, requirement, decision or determination appealed from and may make such order, requirement, decision or determination as ought to be made, and to that end shall have all the powers of the administrative official from whom the appeal is taken.

B. Stay of Proceedings. An appeal shall stay all proceedings in furtherance of the action appealed from unless the planning administrator certifies to the zoning board of appeals that by reason of facts stated in the certificate a stay would, in his opinion, cause imminent peril to life or property, in which case the proceedings shall not be stayed otherwise 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 planning administrator and on due course shown.

C. Public Hearing. The board shall select a reasonable time and place for the hearing of the appeal and shall give due notice in accordance with the public hearing requirements of the Michigan Zoning Enabling Act, PA 110 of 2006 (as amended) as summarized in Article 6, Chapter 9 and shall render a decision on the appeal without unreasonable delay. Any person may appear and testify at the hearing, either in person or by duly authorized agent or attorney.

D. Fee. The City Council shall, from time to time, determine by resolution a fee which shall be paid to the secretary of the zoning board of appeals at the time notice of appeals is filed, which the secretary shall forthwith pay over to the City to the credit of the general fund of the City.

E. Required Findings. The Zoning Board of Appeals may reverse an administrative action only if it finds that the order, requirement, decision or determination was arbitrary or capricious, based upon an erroneous finding of a material fact, constituted an abuse of discretion, or based upon an erroneous interpretation of the Zoning Ordinance.

6.406 Interpretation of Zoning Ordinance Provisions.

The Zoning Board of Appeals shall have the power to hear and decide requests for interpretations of Zoning Ordinance provisions in such a way as to preserve and promote the character of the zoning district in question, and carry out the intents and purposes of the Zoning Ordinance and Master Plan.

6.407 Dimensional Variance.

A. Authority. The Zoning Board of Appeals may grant a dimensional (nonuse) variance to provide relief from a specific standard in this Ordinance relating to an area, a dimension or a construction requirement or limitation, upon the concurring vote of a majority of the members of the Zoning Board of Appeals.

B. Practical Difficulty. A nonuse variance shall not be granted unless the Zoning Board of Appeals finds that there is a practical difficulty in the way of carrying out the strict letter of this ordinance. In determining whether a practical difficulty exists, the Zoning Board of Appeals must find that:

1. Compliance with the strict letter of the restrictions governing area, setback, frontage, height, bulk, lot coverage, density or other dimensional or construction standards will unreasonably prevent the owner from using the property for a permitted purpose or will render conformity with such restrictions unnecessarily burdensome.

2. A grant of the variance will do substantial justice to the applicant as well as to other property owners in the district, and a lesser variance will not give substantial relief to the applicant as well as be more consistent with justice to other property owners in the zoning district.

3. The plight of the applicant is due to the unique circumstances of the property.

4. The problem is not self-created.

5. The spirit of this ordinance will be observed, public safety and welfare secured, and substantial justice done.

6. There is compliance with the standards set forth in Section 6.401.B.

7. There is compliance with the standards for discretionary decisions as contained in Section 6.303.

6.408 Use Variance.

A. Authority. The Zoning Board of Appeals may grant a use variance to authorize a land use which is not otherwise permitted by this ordinance in the district where the property is located, upon the concurring vote of two-thirds (2/3) of the members of the Zoning Board of Appeals.

B. Remedies Exhausted. An application for a use variance shall not be submitted or considered unless the applicant has first received a written determination from the planning department that the proposed land use is not permitted under this ordinance in the district where the property is located.

C. Unnecessary Hardship. A use variance shall not be granted unless the Zoning Board of Appeals finds, on the basis of substantial evidence presented by the applicant, that there is an unnecessary hardship in the way of carrying out the strict letter of this ordinance. In determining that an unnecessary hardship exists, the Zoning Board of Appeals must find that:

1. The property in question cannot be reasonably used or cannot yield a reasonable return on a prudent investment if the property would be used only for a purpose allowed in the zoning district.

2. The plight is due to unique circumstances peculiar to the property and not to general neighborhood conditions.

3. The use to be authorized by the variance will not alter the essential character of the area and locality.