Zoning Ordinance - Article 9

ARTICLE 9

BOARD OF ZONING APPEALS

Section 9.01 Authority.

This Ordinance establishes a Board of Zoning Appeals, the membership, powers, and duties of which are prescribed in Act 110 of 2006 of the Public Acts of the State of Michigan, particularly Article VI, MCL 125.3601 through 125.3607, as amended. (No. 1017, 12-11-06)

Section 9.02 Membership

1. The Board of Zoning Appeals shall consist of seven (7) members. All members shall be residents of the City of Ferndale for a period of not less than one year prior to their appointment. The members shall each be appointed by City Council for a term of three (3) years. City Council may remove a member, after a public hearing, due to nonperformance of duty or misconduct in office. Any vacancy on the Board shall be filled not more than one month after the term of the preceding member has expired by the City Council for the remainder of the unexpired term. If the remaining unexpired term is less than ninety (90) days, the position may remain vacant until the term expires. (No. 1017, 12-11-06)
2. Alternates. The City Council may also appoint two (2) alternate members to the Board of Zoning Appeals. Appointments of alternate members shall be for a term of three (3) years. The alternate members shall:
   1. Be called by the City Clerk to serve in the place of a regular member for the purpose of reaching a decision in a case in which the regular member has abstained for reasons of conflict of interest or due to an absence of a regular member.  The particular alternate member contacted and attending for a particular case shall serve in the appeal until a final decision has been made. The City Clerk shall attempt to rotate contacting and scheduling between the alternate members when a regular member is unavailable or when a conflict arises in a particular case.
   2. Alternate members, participating in a particular case in place of a regular member, shall have the same voting rights as a regular member of the Board of Zoning Appeals. (1052, 8-5-08)

Section 9.03 Officers of the Board.

The Chair and Vice-Chair of the Board shall be elected annually by the members of the Board. The City Clerk or his/her designee shall be the secretary of the Board.  The secretary of the Board shall keep minutes of the proceedings showing members present and absent, and the vote or abstention of each member upon each question; and shall keep all minutes of the Board's hearings and other official actions. The City Attorney shall act as legal counsel for the Board and shall be present at meetings upon request by the Chair or the Director.

Section 9.04 Meetings.

1. Regular meetings of the Board shall be called by the Chair or the Director in response to appeals filed with the City Clerk. The Board shall not conduct business unless a majority of the full membership of the Board is present.
2. The concurring vote of a majority of the full membership of the Board is necessary 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 under an ordinance, or to effect a variation in an ordinance. (No. 1025, 5-1-07) Each member of the Board shall have one (1) vote. A member shall abstain from a vote in which he/she has a conflict of interest. A potential conflict of interest shall be disclosed as soon as it becomes apparent. Failure of a member to disclose a conflict of interest to the Board may constitute misconduct in office.

Section 9.05 Powers and Duties.

The Board is a body of limited powers. The Board shall have the power to act on matters as provided in this Ordinance and Act 110 of 2006 of the Public Acts of the State of Michigan, particularly Article VI, MCL 125.3601 through 125.3607, as amended. Nothing contained in this Ordinance shall be construed to give or grant to the Board the power or authority to amend the Zoning Ordinance or to disregard its provisions, or to rezone parcels of land. The specific powers of the Board are: (No. 1017, 12-11-06)

1. To interpret the Ordinance text and the Zoning Map whenever a question arises in the administration of this Ordinance as to its meaning or intent. Any interpretations shall carry out the intent and purpose of this Ordinance, the Zoning Map, the Land Use Plan, and shall be made in accordance with commonly accepted rules of construction for ordinances and laws in general.
2. To hear and decide appeals from and review any order, requirement, decision, or determination made by an administrative official or body charged with the enforcement of this Ordinance, including the Director, the Building Department, and the Plan Commission, other than site plans and special land use or planned unit development applications. The Board shall also hear and decide matters referred to it, and matters upon which it is required to pass under the provisions of this Ordinance. The board of appeals shall decide the appeal within a reasonable time.
   1. The Board may reverse or affirm, in whole or in part, or may modify the decision and make a determination as, in the Board’s opinion, should have been made, and to that end, shall have all the powers of the officer or body from whom the appeal is taken.
   2. The Board may grant variances as provided by Section 9.07 of this Ordinance.

Section 9.06 Standards for Review.

The decision of the Board is final. However, a person having an interest  aggrieved by the Zoning Ordinance may appeal to the circuit court. Upon appeal, the circuit court shall review the record and decision of the Board to ensure that the decision complies with the constitution and laws of this state, is based upon proper procedure, is supported by competent, material, and substantial evidence on the record, and represents the reasonable exercise of discretion granted by law to the Board. In deciding appeals, the Board must find:  (No. 1017, 12-11-06)

1. The action proposed will not impair an adequate supply of light and air to adjacent properties; increase the danger of fire; unreasonably diminish or impair established property values within the surrounding area; harm the environment; or in any other respect impair the public health, safety, comfort, morals, or welfare of the inhabitants of the City;
2. The action proposed will be compatible with adjacent uses, and of such height, location, size and character that it will not be in harmony with the appropriate and orderly development of the surrounding neighborhood; (No. 1017, 12-11-06)
3. The action proposed will not unreasonably increase congestion in public streets, make vehicular and pedestrian traffic more hazardous than is normal for the district involved, taking into account sight distances, traffic flow, provisions for pedestrian traffic, and minimization of potential traffic conflicts;
4. The action proposed will not create a nuisance;
5. The plight of the applicant results from special or unique circumstances peculiar to the property and not from general neighborhood conditions; and
6. The alleged hardship has not been created by the applicant or any person having a current interest in the property.

Section 9.07 Variances.

If there are practical difficulties or unnecessary hardship in carrying out the strict letter of this Ordinance, the Board may, in deciding appeals, grant a variance in any of its rules or provisions relating to the construction, or structural changes in, equipment, or alteration of buildings or structures (No. 1025, 5-1-07), so that the spirit of the ordinance shall be observed, public safety secured, and substantial justice done.  In granting a variance, the Board shall state the grounds upon which it bases its decision, as dictated by the considerations outlined below. Granting of a variance by the Board shall not constitute an assurance that a building permit will be issued.

1. (No. 1025, 5-1-07)
2. Nonuse or dimensional variances. The applicant must present substantial evidence to show that if the Zoning Ordinance is applied strictly, practical difficulties to the applicant will result. To grant a nonuse or dimensional variance, the Board must find:
   1. Compliance with the strict letter of the restrictions governing area, setbacks, frontage, height, bulk or density, will unreasonably prevent the owner from using the property for a permitted purpose or would render conformity with such restrictions unnecessarily burdensome;
   2. The intent and purpose of this Ordinance will be observed and substantial justice will be done;
   3. A lesser variance than that requested would not give substantial relief to the owner of the property or be more consistent with justice to other property owners; and
   4. The standards set forth in Section 9.06 are satisfied.

Section 9.08 Procedure for Appeal.

1. An appeal may be filed by a person aggrieved, or by an officer, department, board, or bureau of the City with the City Clerk on a form supplied by the City. The notice of appeal shall be accompanied by a fee in an amount determined by the City Council. The officer or body from whom the appeal is taken shall immediately transmit to the Board all the documentation constituting the record upon which the action appealed from was taken. (No. 1017, 12-11-06)
2. An appeal shall be filed within thirty (30) days of the date of the order, determination or decision appealed from, or, if the appeal is from a decision of a public body, within thirty (30) days of the date of the approval of the minutes of the public meeting at which the decision was made.
3. The Board shall consider an appeal within a reasonable time. The City Clerk shall fix a reasonable time for a hearing upon receipt of a notice of appeal, and shall notify the person filing the appeal of the time and place of the appeal hearing. Notice of the appeal shall be provided to persons to whom real property is assessed within three hundred (300) feet of the subject property and to occupants of all structures within three hundred (300) feet.  (No. 1025, 5-1-07) The notice is to be delivered personally or by mail addressed to the respective owners and tenants at the address given in the last assessment roll. If a tenant's name is not known, the term "occupant" may be used.
4. An applicant may appear in person at the appeal, or be represented by an agent or attorney. The Board shall review all documentation submitted constituting the record upon which the action appeal from was taken.
5. All decisions of the Board shall be in the form of an approved motion or resolution reciting the facts and findings of the Board. The applicant and the officer or body appealed from shall be advised of the Board’s decision through a written communication within fourteen (14) days of the appeal hearing.
6. Any variance granted by the Board shall expire and be of no effect one (1) year following the date of approval unless construction has begun on the property. The approval shall remain valid only as long as the information provided to the Board is found to be correct, and the conditions upon which the decision was based are maintained.
7. An appeal shall stay all proceedings of the action appealed from unless the officer or body from whom the appeal is taken certifies to the Board, in writing, 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. If such a certification is filed, the proceedings shall only be stayed by a restraining order. A restraining order may be granted by the board of appeals or by the circuit court, on application, on notice to the officer or body from whom the appeal is taken and on due cause shown.
8. An applicant shall not resubmit a request for appeal which the Board has denied wholly or in part to be reheard by the Board for a period of one (1) year following the effective date of the decision by the Board, except where the Board determines that there is a substantial change in circumstances. Applications for rehearing shall be subject to the same rules and requirements as an original appeal. In the event that the Board grants a request for reconsideration, the time period to appeal the Board’s decision to circuit court shall commence thirty (30) days after the date of the Board's written decision on reconsideration.
9. The decisions of the Board shall be final. A person, officer, department, board, or bureau of the City of Ferndale having an interest aggrieved by this Ordinance or by a decision of the Board shall have the right to appeal to the circuit court. Such appeal must be taken within thirty (30) days after the date of the Board's written decision. (No. 1017, 12-11-06)

Section 9.09 Violations.

Any violation of this Article, including any improvement (No. 1025, 5-1-07) not in conformance with any variance granted, shall be deemed a violation of this Ordinance as provided in Section 1.07, and shall be subject to all applicable penalties.