Zoning Board of Appeals

Zoning Board of Appeals Agenda Commission Chambers 4243 Remembrance Rd NW Wednesday, March 22, 2023 6:30 PM 1. Call the meeting to order 2. Review Meeting Minutes 2.1. Review Meeting Minutes from December 28, 2022 3. General Public Comment 4. Agenda Items 4.1. Training by City Attorney Jeff Sluggett 4.2. Election of Officers 5. Zoning Board of Appeals Member/Staff Comments 6. Adjournment Page 1 of 25  ZONING BOARD OF APPEALS MINUTES Wednesday, December 28, 2022 6:30 p.m. Members present: Chair Robert Marz, Vice Chair Brian Boelens, Roger Crabtree, Patrick Nolan, Randy Smith Members absent: Elaina Huizenga-Chase, Tom Winkleman Staff present: Planning Director Paula Priebe, Community Development Director Frank Wash CALL THE MEETING TO ORDER Chairman Marz called the meeting to order at 6:30 p.m. in the Commission Chambers. REVIEW MEETING MINUTES Crabtree made a motion to approve the minutes from August 10, 2022 - Nolan supported. Motion carried unanimously. The minutes were approved with the addition of a note that the video recording stopped during Case #22-003, and no further minutes were recorded. GENERAL PUBLIC COMMENT This provision is made to encourage the expression of questions and concerns regarding non- public hearing items and issues not on the agenda. Speakers are asked to identify themselves by name and address. A maximum time of 6 minutes per person is required. There was no public comment. AGENDA ITEMS Case #22-004 - 3970 Lake Michigan Dr NW - Front Yard Setbacks - Perissos LLC Chairman Marz reviewed the criterion and applicant's responses: Regarding Exceptional or Extraordinary Circumstances: Applicant's response: Due to the nature of the Lake Michigan Drive (M45) right-of-way, there are some historical challenges related to vehicular access to and from the property, and the adjacent properties. As a condition of development, the City has requested that the property grant a 24- foot cross-access easement on the south side of the property that aligns with the current parking Zoning Board of Appeals Minutes 12-28-22 Page 2 of 25 lot drive aisle of the neighbors to the west (3986 and 3990 Lake Michigan Dr.) This easement significantly impacts the buildable lot area on the property and, were the proposed drive-through restaurant be built within the required front-yard setback, the drive-through lane would fall within the cross-access easement and, therefore restrict traffic. Regarding Preservation of Property Rights: Applicant's response: The C-3 (Highway Commercial) zoning established for this property is unique to a small group of properties on the east side of Kinney on both the north and south sides of Lake Michigan Drive. Properties west of Kinney to Wilson fall within the Standale Downtown District, with front yard setbacks of 67 feet from the back of the existing Lake Michigan Dr. curb (approximately 30 feet from the front property line). To the east of this short section of C-3 zoning the properties are designated ORP and/or C-1, each of which have front yard setbacks of 35 feet. The adjacent C-3 buildings to the immediate west are setback roughly 36 feet from the property line along Lake Michigan Drive. Granting this variance will allow this property to enjoy the same rights that are have been established for many years on the existing property as well as neighboring properties along Lake Michigan Drive. Regarding No Substantial Detriment: Applicant's response: The adjacent properties already are closer to the road than the proposed variance. Further, the existing structure on the property in question is closer than the proposed variance and the existing building takes up more width across the front than the proposed building, therefore creating more sight access to the neighboring properties. Additionally, the proposed cross-access easement will help resolve some historic vehicular access challenges associated with these properties. Therefore, granting the proposed easement generates benefits for the adjacent properties over current conditions and does not create any known detriments. Regarding Not a Recurrent Request that would Warrant a Change in Zoning Ordinance: Applicant's response: This condition appears to be very unique for C-3 (Highway Commercial) zoning within Walker and impacts only a small group of properties on the east side of Kinney on both the north and south sides of Lake Michigan Drive. Properties west of Kinney to Wilson fall within the Standale Downtown District, with front yard setbacks of 67 feet from the back of the existing Lake Michigan Dr. Curb (approximately 30 feet from the front property line.) To the east of this short section of C-3 zoning the properties are designated ORP and/or C-1, each of which have front yard setbacks of 35 feet. The adjacent C-3 buildings to the immediate west are setback roughly 36 feet from the property line along Lake Michigan Drive. Further, the required cross-access easement that is limiting the [sic]. Marz invited Priebe to present the case. Priebe presented her findings and staff report. She noted that many properties adjacent to the subject property have a front yard setback significantly less than 100 ft and she referred to Figure 2 in the staff report. The setbacks shown are all between 35'-40' from the property line. This allows the required setback to be reduced from 100' to 75' by right. The applicant is seeking to construct a new commercial building 45' from the property line, hence, the request is for a front setback variance of 30'. She also mentioned that there are other areas in C-3 zoning in the City. None of them have the same unique features of this property with the access from Lake Michigan Drive and the property lines being set back further from the Right of Way. There is the access from Lake Michigan Dr. The property line on some of the other parcels are at the sidewalk, which is not the case here. The access easement in the back make this parcel unique within the C-3 that doesn't apply in other areas. The unique property lines, shared access drive, and rear easement request all work together to create an unusual circumstance. They all reduce the buildable area on the property. The board could determine to be limiting their property rights relative to other properties in the vicinity, even though they are in a different zoning district. The existing building has sad several code violations in the recent past. The comments staff received Zoning Board of Appeals Minutes 12-28-22 Page 3 of 25 from the public had to do with seeing that property being redeveloped as a positive for the community rather than a detriment. No similar cases were found so this is not a recurring case that would warrant a change to the ordinance. Priebe invited comment from the board. Crabtree asked about the zoning location map attached to the agenda. It indicates the current property is zoning C-3 and ORP? Priebe replied no, there are three parcels immediately adjacent that are zoned ORP but the property in question is in the C-3 district. Marz invited the applicant to comment and he had no further comment. OPEN THE PUBLIC HEARING Crabtree made a motion to open the public hearing. Second by Smith. Motion carried unanimously. Priebe read two public comments into the record. First, a phone call from Lynn Kroll, Hair Unlimited, 330 Kinney immediately to south of the subject parcel. She is in favor of the variance if it requires the blighted property removed and a new development built. She had questions about access to the property. The second comment was via email from Craig Phillips on behalf of himself and Manjit Singh, of the property immediately to the west. They had questions about the cross- access easement. She explained that issue would be best discussed at a subsequent Planning Commission meeting. They said that they have no issues with the setback request as it is consistent with the other properties, and would not affect their property. Marz invited the board to comment. Smith asked how the cross-access easement affects the building footprint? Priebe stated with regard to the front setback, if the front setback variance was not granted, any redevelopment would have to be behind the line to the south - if the easement were to go where the cross-access drive is, they wouldn't be able to build to the south. It would limit the buildable area on the site and with a restaurant use, they want access around the building as well. It limits them to a small area in the middle of the property. With the granting of the variance, and being able to go 45 from the front property line, they gain back that 30 feet to build a lot larger area, adding half to the buildable area. Marz asked applicant Spencer Boorsma what type of restaurant this would be. Boorsma replied it is an Adobe In and Out. Marz asked what kind of seating capacity? Boorsma responded that it is a drive-through only building with no seating. There will be a walk- up window. Priebe reminded the board that any redevelopment would still have to go through the Planning Commission. Nolan added that they really are gaining a little setback of 7 feet. Because it is a drive-through it wouldn't have a great need for seating and plenty of room for cross-traffic easement. Zoning Board of Appeals Minutes 12-28-22 Page 4 of 25 Marz mentioned it would benefit the other businesses as well with the easement and the ability for traffic to go right through to Kinney to the red light. Crabtree asked if staff felt there was enough stacking distance. Priebe said that will be handled in more detail on a site plan at the Planning Commission level. She encouraged the board to focus too much as to what the development is, because this is a concept proposal and may not be what is coming to the site. If the variance is granted that would carry with the property. Ms. Kroll commented that she had concerns about her parking lot being used as a cut through and she would not support that, however is very much in support of the property redevelopment. Smith stated he is also a member of the DDA and they've been working for many years to clean up the eyesore. It would be a great addition to Standale. CLOSE THE PUBLIC HEARING Crabtree made a motion to close the public hearing. Second by Nolan. Motion carried unanimously. MOTION Crabtree made a motion to GRANT the requested variance of a 30’ front yard setback resulting in a front yard building setback of 45’ feet, located at 3970 Lake Michigan Drive NW. Smith supported the motion. Yays: 5 Nays: 0 ZONING BOARD OF APPEALS MEMBER/STAFF COMMENTS Chairman Marz announced his retirement after 41 years on the board. ADJOURNMENT Crabtree made a motion to adjourn. Supported by Nolan. Roger Crabtree, Secretary Laura Lundy, Recording Secretary Zoning Board of Appeals Minutes 12-28-22 Page 5 of 25  The Essential ABCs of ZBAs Jeff Sluggett BLOOM SLUGGETT, PC 161 Ottawa NW, Suite 400 Grand Rapids, Michigan 49503 (616) 965-9341 jeff@bloomsluggett.com {03637-004-00093557.6} Page 6 of 25  I. OVERVIEW Basis for ZBA Authority Michigan Zoning Enabling Act - Act No. 110 of the Public Acts of 2006 City’s Zoning Ordinance City’s Master Plan II. ADMINISTRATION OF ZONING AND PLANNING By designated officials: City Commission (e.g., budget, rezonings, text amendments, etc.) Zoning Administrator (e.g., process applications, administer Zoning Ordinance, make interpretations, etc.) Planning Commission (e.g., special exception uses, site plans, Zoning Ordinance amendment hearings, etc.) ZBA III. ZONING BOARD OF APPEALS A. Make Up of ZBA 1. Statutory Composition Sec. 601. (1) A zoning ordinance shall create a zoning board of appeals. . . . Subject to subsection (2), members of a zoning board of appeals shall be appointed by majority vote of the members of the legislative body serving. * * * (5) The remaining regular members of a zoning board of appeals, and any alternate members under subsection (7), shall be selected from the electors of the local unit of government residing within the zoning jurisdiction of that local unit of government . . . . The members selected shall be representative of the population distribution and of the various interests present in the local unit of government. * * * (7) The legislative body may appoint to the zoning board of appeals not more than 2 alternate members for the same term as regular members. An {03637-004-00093557.6} 1 Page 7 of 25  alternate member may be called as specified in the zoning ordinance to serve as a member of the zoning board of appeals in the absence of a regular member if the regular member will be unable to attend 1 or more meetings. An alternate member may also be called to serve as a member for the purpose of reaching a decision on a case in which the member has abstained for reasons of conflict of interest. The alternate member appointed shall serve in the case until a final decision is made. An alternate member serving on the zoning board of appeals has the same voting rights as a regular member. * * * (9) 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 a 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. * * * 2. Sec. 94-56. - Creation and membership. A board of zoning appeals is hereby established as provided in and having the powers given by Act No. 110 of the Public Acts of Michigan of 2006, as amended. The board shall consist of seven regular members and two alternate members, as appointed by the city commission. The alternate members may be called on a rotating basis to sit as regular members of the board in the absence of a regular member. . . . B. Role of the ZBA is unique: The ZBA has significant authority to interpret and ultimately enforce the legislative intent of zoning provisions. It is the final arbiter with respect to interpreting the Zoning Ordinance. This “quasi-judicial” responsibility is separate from the duties carried out by the City Commission, Planning Commission, Zoning Administrator, and others involved in zoning and planning. Like a judge, it determines what the Zoning Ordinance means and can authorize deviations based upon pre-established standards. • Not subject to City Commission or Planning Commission oversight • Only circuit court review as a quasi-judicial body C. ZBA is a public body subject to the state’s Open Meetings Act and Freedom of Information Act. {03637-004-00093557.6} 2 Page 8 of 25  1. Sec. 94-57(b): Meetings of the board of zoning appeals shall be held at the call of the chairman and at such times as the board in its rules of procedure may specify. The chairman or, in his absence, the acting chairman may administer oaths and compel the attendance of witnesses. All meetings of the board shall be open to the public. The board shall maintain a record of its proceedings which shall be filed in the office of the city clerk and shall be a public record. 2. Open Meetings - Presumption is openness General Rule: (1) “Meetings” of a (2) “public body” must be (3) open to the public unless an exemption specifically applies: Important Definitions MCLA 15.262(b): “Meeting” means the convening of a public body at which a quorum is present for the purpose of deliberating toward or rendering a decision on public policy. Not a meeting if: • Attendance at conferences (no intent to avoid OMA). • Social gatherings (no intent to avoid OMA). • Meeting with neighborhood groups/others if intent is solely to observe and gather information. Nonetheless, do not “talk shop” under such circumstances Prohibited meetings: • Informal advance meetings to deliberate regarding formal action to be taken (straw votes by phone). • E-mail (or text) deliberations count as well (see below). Quorum:“[M]inimum number of members who must be present for a deliberative assembly to legally transact business” or more than half of all the members Black’s Law Dictionary, 9th ed) (so, 4) E-Mail Meetings? E-mail communications among board members can violate the OMA if a quorum participates in deliberations or makes a decision through e-mail or similar electronic communication. One-way communications to board members or two-way communications between just two board members are acceptable, but very easy to “cross the line” into interactive e-mail communication among a quorum Interaction or communication among members is common theme (BUT Mackey {03637-004-00093557.6} 3 Page 9 of 25  case - not all need to interact for it to still be a meeting) MCLA 15.262(a): “Public body” means any state or local legislative or governing body, including a board,. . . , that is empowered by state constitution, statute, charter, ordinance, resolution, or rule to exercise governmental or proprietary authority or perform a governmental or proprietary function (i.e., decision making authority). • If delegated authority to make decisions or exercise authority - meet all OMA requirements. • Committees - is a sub quorum committee a “public body” that must comply with the OMA? • Case law indicates that a sub quorum committee is a “public body” under the OMA if it performs a governmental function. Purely advisory committees are not considered “public bodies” but only deliberations in such a group are permitted. • Pinebrook Warren, LLC (2022):. Medical marihuana review committee authorized to review and provide detailed recommendations of applicants; was not the decision maker. Michigan Court of Appeals concluded that work groups are not public bodies if advisory only. • Lesson: A subquorom committee can assess, evaluate, and make recommendations without becoming a public body, but cannot eliminate options from consideration by the full public body (do not winnow down). What is “open to the public”? Meetings must be held in a place generally open/accessible to the public; any person is permitted to attend; tight to tape record, videotape, live broadcast; any person has right to speak to public body; may define when public speech is permitted through adoption of written rules of procedure; person cannot be excluded from meeting except for a breach of the peace (e.g., repeated interruptions, disorderly conduct); generally, cannot restrict content (but, personal attacks can be prohibited); and voting must occur in a meeting open to the public; “secret” ballots not permitted Open to the Public: Electronic Meetings Are members of the ZBA permitted to participate and vote electronically (telephone or video conferencing)? - Covid legislation permitting, which amended OMA, not maintained after 2021 so answer is “no” except for military accommodation (See MCL 15.263a (1)(c).) {03637-004-00093557.6} 4 Page 10 of 25  - Reasonable accommodation under ADA? Open to the Public: Closed Sessions Parameters of closed sessions – may only be called for certain, limited purposes - improper to discuss any other matters during such a closed session, • Must maintain separate minutes of a closed session • Even when closed session permitted, the OMA prohibits making a decision except at an open meeting MCL 15.267(1) – Generally, closed sessions are only called upon 2/3 roll-call vote of total membership of public body. MCL 15.268 lists the permissible purposes for holding closed sessions. Most frequently used for ZBA: - To consult with attorney regarding trial strategy or case settlement in pending litigation if open session would have a detrimental financial effect - To consider materials exempt from disclosure by statute (such as confidential written communication from a community’s attorney which is exempt under FOIA due to attorney-client privilege) Decisions and Deliberations:  Deliberation: Because the OMA does not define the term “deliberation” the courts have turned to dictionary definitions and stated that “deliberation” includes “discussing,” which, in turn, is defined as the act of exchanging views: The Legislature failed to define the term “deliberating” in the context of the OMA. Black’s Law Dictionary (7th ed.), defines this word as “the act of carefully considering issues and options before making a decision or taking some action; esp., the process by which a jury reaches a verdict; as by analyzing, discussing, and weighting the evidence” (emphasis added). The word discussion is defined as the act of exchanging views on something; a debate. Id. (emphasis added). Although Black’s Law Dictionary does not define “debate,” the Random House Webster’s Unabridged Dictionary (2d ed.) (1998), defines the word as “a discussion, as of a public question in an assembly, involving opposing viewpoints.” {03637-004-00093557.6} 5 Page 11 of 25  Ryant v. Cleveland Township, 239 Mich. App. 430 (2000). Pursuant to the holding in Ryant, if the Board members exchange any affirmative or opposing views on a policy matter (e.g., funding priorities, modifications, etc.), that would be considered deliberations under the OMA.  Decision: • Formal determination, action or vote on a motion, proposal, recommendation, resolution or ordinance, • On which a vote by members of a public body is required • And by which a public body effectuates or formulates public policy. 3. Freedom of Information Act (FOIA). Under the FOIA, a person (except those incarcerated) who provides a public body with a written request that sufficiently describes a public record to enable the public body to find the public record has a right to inspect, copy, or receive copies of the requested public record of the public body. • Public Record: A writing prepared, owned, used, in the possession of, or retained by a public body in the performance of an official function, from the time it is created. Public record does not include computer software. • Writing: Includes handwritten, typewritten, and printed documents, and any other means of recording or retaining meaningful content, including letters, words, pictures, sounds, or symbols, or combinations thereof, and papers, maps, magnetic or paper tapes, photographic films or prints, microfilm microfiche, magnetic or punched cards, discs, and drums. • Note: FOIA does not mandate that the City answer questions, create new records, or justify decisions of a public body. Procedure Within five business days of receiving a FOIA request, the FOIA coordinator may • Grant the request • Issue a written notice to the requester denying the request • Grant the request in part and issue a written notice to the requester denying the request in part • Issue a written notice extending for not more than 10 business days the response period {03637-004-00093557.6} 6 Page 12 of 25  Note: A requester is entitled to appeal a denied request Current Topics: Personal phones and personal computers? Emails, texts, etc.; in performance of official functions on behalf of City? • Howell Education Association v Howell Board of Education, a 2010 decision of the Michigan Court of Appeals, addressed a FOIA request that had been submitted to the Howell Public Schools seeking emails from several teachers who all held union positions regarding union matters. The question presented was whether, to the extent the emails addressed union matters, they were public records for purposes of FOIA. All of the emails at issue were maintained on the school’s computer system. The Court of Appeals concluded that simply because the emails were on a school computer did not make them (therefore) public records and that the question, properly framed, was whether the documents in question were used “in the performance of an official function.” As the court noted, the school district “can function without the personal email. There is nothing about the personal email, given that . . . they have nothing to do with the operation of the schools, which indicates that they are required for the operation of an educational institution.” • So, reverse likely true (i.e., use of personal equipment for an official function) • Handwritten notes for personal use which are not circulated and are not used in the preparation of minutes and can retained or destroyed in member’s sole discretion; while a “writing” are not subject to FOIA as they were not prepared or used in furtherance of an official function (Hopkins v Township of Duncan, Michigan Court of Appeals, 2011) • Blackwell (2022): City received a FOIA request for messages sent to the mayor’s Facebook profile page. City denied, arguing not a public record and Michigan Court of Appeals agreed. The Facebook page in question was not owned, prepared, or relied upon by city for its official functions. Instead, mayor’s Facebook page belonged to the mayor’s political campaign and served only political purposes. Lesson: • Do not use unofficial or private social media accounts to perform official functions of your office. {03637-004-00093557.6} 7 Page 13 of 25  • That you are a public official does not make all your records “FOIA-able” D. Responsibility/Authority of ZBA Zoning Enabling Act; Sec. 603. (1) The zoning board of appeals shall hear and decide questions that arise in the administration of the zoning ordinance, including the interpretation of the zoning maps, and may adopt rules to govern its procedures sitting as a zoning board of appeals. The zoning board of appeals shall also hear and decide on matters referred to the zoning board of appeals or upon which the zoning board of appeals is required to pass under a zoning ordinance adopted under this act. It shall hear and decide appeals from and review any administrative order, requirement, decision, or determination made by an administrative official or body charged with enforcement of a zoning ordinance adopted under this act. For special land use and planned unit development decisions, an appeal may be taken to the zoning board of appeals only if provided for in the zoning ordinance. 1. Hears and decides appeal of administrative decisions. 2. Interprets zoning ordinance text and map. 3. Hears and decides applications for variances. E. Procedures Zoning Enabling Act; Sec. 603. (2) The concurring vote of a majority of the members of the zoning board of appeals is necessary to reverse an order, requirement, decision, or determination of the administrative official or body, to decide in favor of the applicant on a 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. Appeals, dimensional variances and interpretations pass by a majority of the members of the ZBA (4 of 7). What to do if only 4 members present? 3. One may appear before the ZBA in person, by an agent (i.e., engineer, architect, broker, etc.) or by attorney. Some communities will not hear a case unless the applicant (personally) appears. There is nothing in the Zoning {03637-004-00093557.6} 8 Page 14 of 25  Enabling Act that requires this. Consequently, it is suggested that ZBAs permit the applicant to be represented by whomever the applicant identifies. 4. Sec. 94-289. - Variances. If a site plan requires one or more variances, an application for the variance(s) shall be filed and considered by the board of zoning appeals after preliminary city staff review pursuant to section 94-282. The application for the variance(s) shall be considered by the board of zoning appeals pursuant to article III of this chapter before the planning commission considers the site plan pursuant to section 94-283 and this article X. F. Variances (Sec. 94-59, see below) 1. A variance is permission to violate the law (i.e., the zoning ordinance). 2. Non-use/dimensional (e.g., setbacks, height, lot coverage, etc.) 3. Use variance (permitting a use not otherwise allowed in that district) 4. Variances should be granted only sparingly—variances were never intended to be easily obtained. Unfortunately, for some communities this is not the case. Often, this is a result of the ZBA’s thinking that it exists to grant relief from the zoning ordinance. In fact, the opposite is true, the ZBA is tasked with upholding the ordinance, and granting relief only in unique (and warranted) circumstances. • Makes Zoning Administrator’s job harder, word gets out, calls into question legitimacy of Zoning Ordinance as written 5. Zoning Enabling Act and City’s Zoning Ordinance identify standards for variances • Practical difficulty (dimensional variance)(setbacks, height, location, lot coverage, etc.) • Unnecessary hardship (use variance)(allow a use different from that otherwise permitted in that zoning district) Sec. Sec 604. (7) If there are practical difficulties for nonuse variances as provided in subsection (8) . . . in the way of carrying out the strict letter of the zoning ordinance, the zoning board of appeals may grant a variance in accordance with this section, so that the spirit of the zoning ordinance is observed, public safety {03637-004-00093557.6} 9 Page 15 of 25  secured, and substantial justice done. The ordinance shall establish procedures for the review and standards for approval of all types of variances. The zoning board of appeals may impose conditions as is otherwise allowed under this act. (8) The zoning board of appeals of all local units of government shall have the authority to grant nonuse variances relating to the construction, structural changes, or alteration of buildings or structures related to dimensional requirements of the zoning ordinance or to any other nonuse-related standard in the ordinance. (9) The authority to grant variances from uses of land is limited to the following: (a) Cities and villages. ... (10) The authority granted under subsection (9) is subject to the zoning ordinance of the local unit of government otherwise being in compliance with subsection (7) and having an ordinance provision that requires a vote of 2/3 of the members of the zoning board of appeals to approve a use variance. (11) The authority to grant use variances under subsection (9) is permissive, and this section does not require a local unit of government to adopt ordinance provisions to allow for the granting of use variances. 6. Sec. 94-59. - Granting of variances. The board of zoning appeals may grant a variance from the provisions or requirements of this chapter if the board finds from reasonable evidence that all the following facts and conditions exist: (A) That there are exceptional or extraordinary circumstances or conditions applying to the property in question as to the intended use of the property that do not apply generally to other properties in the same zoning district. • Exceptional narrowness, shallowness or shape of a specific property on the effective date of the ordinance; or • Exceptional topographic or environmental conditions or other extraordinary situation on the land, building or structure; or • By reason of the use or development of the property immediately adjoining the property in question; such that literal enforcement of the ordinance requirements would involve practical difficulties. {03637-004-00093557.6} 10 Page 16 of 25  • Personal reasons are not relevant (personal possessions, nature of a business, etc.) (B) That such variance is necessary for the preservation and enjoyment of a substantial property right similar to that possessed by other properties in the same zoning district and in the vicinity. The possibility of increased financial return shall not of itself be deemed sufficient to warrant a variance. • Not greater rights, “similar” (C) That authorizing such variance will not be of substantial detriment to adjacent property, and will not materially impair the intent and purposes of this chapter or the public interest. • Public input • City development (Master Plan) (D) That the condition or situation of the piece of property or the intended use of such property for which the variance is sought is not of so general or recurrent a nature as to make reasonably practicable the formulation of a general regulation for such condition or situation. • Unique, not common to City or neighborhood. • ZBA cannot amend Zoning Ordinance. AND (E) With respect to the use variance, that the property for which a variance is sought cannot reasonably be used in a manner consistent with existing zoning. • Is rezoning an alternative? • What about an amendment to Zoning Ordinance? Burden rests with applicant • Don’t make arguments for applicant {03637-004-00093557.6} 11 Page 17 of 25  • Equal protection; all to be treated uniformly G. Appeals of Administrative Decisions/Interpretations Zoning Enabling Act Sec. 604. (1) An appeal to the zoning board of appeals may be taken by a person aggrieved (note: formerly “person affected”) or by an officer, department, board, or bureau of the state or local unit of government. . . . (2) An appeal under this section shall be taken within such time as shall be prescribed by the zoning board of appeals by general rule, by the filing with the officer from whom the appeal is taken and with the zoning board of appeals of a notice of appeal specifying the grounds for the appeal. The body or officer from whom the appeal is taken shall immediately transmit to the zoning board of appeals all of the papers constituting the record upon which the action appealed from was taken. (3) An appeal to the zoning board of appeals stays all proceedings in furtherance of the action appealed from unless the body or officer from whom the appeal is taken certifies to the zoning board of appeals after the notice of appeal is filed that, by reason of facts stated in the certificate, a stay would in the opinion of the body or officer cause imminent peril to life or property, in which case proceedings may be stayed by a restraining order issued by the zoning board of appeals or a circuit court. * * * The ZBA is authorized to issue an official interpretation of the ordinance on behalf of the City. There are several general rules to be followed by the ZBA when making an interpretation. These are: (a) Map interpretations should be based on rules found in the zoning ordinance and any relevant historical information. (b) Text interpretations should be narrow, be based on a thorough reading of the ordinance and not have the effect of amending the ordinance. (c) Give weight to reasonable practical interpretations by administrative officials if applied consistently over an extended period of time. H. Sec. 94-142 {03637-004-00093557.6} 12 Page 18 of 25  If no structural alterations are made, a nonconforming use of a structure, or structure and premises, may be changed to another nonconforming use if the zoning board of appeals specifically finds that the proposed use is equally appropriate or more appropriate to the zone district than the existing nonconforming use. In approving a change of use, the board of appeals may impose reasonable conditions. The changed use as approved by the board of appeals under this section shall be considered a nonconforming use for purposes of this chapter. I. Decisions 1. Zoning Enabling Act; Sec. 604. (1) An appeal to the zoning board of appeals may be taken by a person aggrieved or by an officer, department, board, or bureau of the state or local unit of government. In addition, a variance in the zoning ordinance may be applied for and granted under section 4 of the uniform condemnation procedures act, 1980 PA 87, MCL 213.54, and as provided under this act. The zoning board of appeals shall state the grounds of any determination made by the board. 2. Sec. 94-62. - Decisions of the board. The board of zoning appeals shall decide all applications and appeals within 30 days after the final hearing thereon. A copy of the board's decision shall be transmitted to the applicant or appellant and to the building inspector. Such decision shall be binding upon the building inspector and be observed by him, and he shall incorporate the terms and conditions of the decision in the permit to the applicant or appellant whenever a permit is authorized by the board. A decision of the board shall not become final until the expiration of five days from the date such decision is made, unless the board shall find the immediate effect of such decision is necessary for the preservation of property or personal rights and shall so certify on the record. No application or appeal which has been denied shall be resubmitted within 120 days after the denial by the board. 3. Each case must be considered on its own merits. 4. Role of staff? - Submit report? - Submit recommendations? {03637-004-00093557.6} 13 Page 19 of 25  - Advocate for applicant? 4. A thorough record is critical. Record must show facts of the case and detailed, specific reasons must be given for decision. Not simply “request meets (does not meet) standards of zoning ordinance.” The ZBA must state the reasons for its decision on a particular case. This is important for a number of reasons: (a) Should the issue be litigated, it provides the court with a full understanding of why a decision was made. Decisions made by the court are made on the basis of the record, not as a result of additional testimony. If the ZBA provides a solid record for its decision, based on the appropriate standards, a court is less likely to substitute its judgment for that of the ZBA. (b) It helps avoid the concern of setting a precedent. Every case must be heard on the merits of the facts presented and the decision based on the standards of the ordinance. (c) Should the case be reviewed at some point by a future ZBA or zoning administrator, it helps diminish ambiguity surrounding the rationale for the decision. 5. Process to make a decision should focus on discussion among the Board members; purpose is to synthesize the pertinent facts from the information presented and seek a majority viewpoint. In undertaking this task, remember: (a) All discussion must be in public and should be audible (limit/prevent “side bars”). (b) The public is not involved in this discussion unless the ZBA brings them in. (c) The discussion should focus on the standards in the zoning ordinance that must be met in order to approve the applicant’s request. (d) The discussion should proceed long enough for someone to feel confident in proposing a complete motion that embodies the most important findings. (e) Differences of opinion are acceptable. 6. Documenting decision: - Checklist? {03637-004-00093557.6} 14 Page 20 of 25  • Standards • Findings as to standards • Read from this as motion? - Facts are information pertinent to the decision. Some of the most important facts come from: • The application • Zoning Ordinance requirements • Physical characteristics of the property and adjacent parcels • Impact of the request on adjoining parcels, natural resources, public services, and character of the area (Reports from other units; e.g., KCRC?) • Impact on streets, traffic, parking • Neighbor and other public comments that relate to the above 7. Motions (a) The motion to approve, deny or approve with conditions should state the conclusion, and the rationale for the conclusion, indicating how the facts support the decision reached. A motion must have: been properly made; a description of the nature of the request; the action taken (approval, approval with conditions, denial, tabling), any conditions attached to affirmative decisions; and, the reasons for the action taken (applicability of standards). (b) Discussion on the issue, if thoroughly documented in the minutes, may be adequate to provide enough information related to compliance with the standards of the ordinance. Otherwise, a summary of the discussion is appropriate. Referencing staff reports, when available, is also appropriate. (c) Motions can/should be made to deny rather than simply allowing a failure to approve to stand. (No record otherwise.) (d) Speak with personal familiarity. 8. Conditions (a) Zoning runs with the land; it is not “restricted” to the property owner. To limit the scope of a variance, a ZBA is authorized by law to impose conditions that are reasonable and related to use or structure in question. {03637-004-00093557.6} 15 Page 21 of 25  (b) Sec. 94-60. - Conditions. In addition to the specific conditions of approval set forth in this chapter, reasonable conditions may be imposed by the board of zoning appeals upon an affirmative decision. The conditions may include conditions necessary to ensure that public services and facilities affected by a proposed land use or activity will be capable of accommodating increased service and facility loads caused by the land use or activity, to protect the natural environment and conserve natural resources and energy, to ensure compatibility with adjacent uses of land, and to promote the use of land in a socially and economically desirable manner. Conditions imposed shall do all the following: (1) Be designed to protect natural resources, the health, safety and welfare, as well as the social and economic well-being of those who will use the land use or activity under consideration, residents and landowners immediately adjacent to the proposed land use or activity, and the community as a whole. (2) Be related to the valid exercise of the police power and purposes which are affected by the proposed use or activity. (3) Be necessary to meet the intent and purpose of this chapter; be related to the standards established in the ordinance for approval of the application or appeal under consideration; and be necessary to ensure compliance with those standards. (c) It should do so to limit variation from ordinance as much as reasonably feasible. (d) Should also do so to limit the variance to the particular circumstances involved. *** BE EXPLICIT WITH CONDITIONS. *** 9. Can also require posting of performance guarantees: Sec. 505. (1) To ensure compliance with a zoning ordinance and any conditions imposed under a zoning ordinance, a local unit of government may require that a cash deposit, certified check, irrevocable letter of credit, or surety bond acceptable to the local unit of government covering the estimated cost of improvements be deposited with the clerk of the legislative body to insure faithful completion of the improvements. The performance guarantee shall be deposited at the time of the issuance of the permit authorizing the activity or project. The local unit of government may not require the deposit of the performance guarantee until it is {03637-004-00093557.6} 16 Page 22 of 25  prepared to issue the permit. The local unit of government shall establish procedures by which a rebate of any cash deposits in reasonable proportion to the ratio of work completed on the required improvements shall be made as work progresses. 10. Appeal is to Circuit Court (a) Zoning Enabling Act; Sec. 606. (1) Any party aggrieved by a decision of the zoning board of appeals may appeal to the circuit court for the county in which the property is located. The circuit court shall review the record and decision to ensure that the decision meets all of the following requirements: a. Complies with the constitution and laws of the state. b. Is based upon proper procedure. c. Is supported by competent, material, and substantial evidence on the record. d. Represents the reasonable exercise of discretion granted by law to the zoning board of appeals. (Hence, need for complete record.) (2) If the court finds the record inadequate to make the review required by this section or finds that additional material evidence exists that with good reason was not presented, the court shall order further proceedings on conditions that the court considers proper. The zoning board of appeals may modify its findings and decision as a result of the new proceedings or may affirm the original decision. The supplementary record and decision shall be filed with the court. The court may affirm, reverse, or modify the decision. (3) An appeal from a decision of a zoning board of appeals shall be filed within 30 days after the zoning board of appeals issues its decision in writing signed by the chairperson, if there is a chairperson, or signed by the members of the zoning board of appeals, if there is no chairperson, or within 21 days after the zoning board of appeals approves the minutes of its decision. The court may affirm, reverse, or modify the decision of the zoning board of appeals. The court may make other orders as justice requires. (b) Courts generally are more concerned about the record and applying the standards than the actual decision made by the ZBA. IV. MISCELLANEOUS A. DO: {03637-004-00093557.6} 17 Page 23 of 25  • Read and study information before the meeting • Visit the site. Before making any decision, it is necessary that those charged with that responsibility have an adequate amount of information to allow a reasonable conclusion. Visiting the site is often critical in rendering a good decision. Still, some precautions should be used. A site visit by a majority of the membership of a decision-making body should be preceded by notice under the Open Meetings Act. • Given the potential problems associated with Open Meetings Act compliance, as well as other regulations, such as the Americans with Disabilities Act (ADA), site visits by individual members is strongly encouraged. • Two cautions for individual visits: 1) do not go onto the site unless specific written permission has been granted by the property owner or the site is otherwise available to the public (such as an existing shopping center); and 2) do not talk to the property owner, neighbors or applicant outside of the meeting. This is known as an "ex parte" contact (or from only one point of view) and can be perceived as prejudicial. • The intent of information gathering is to ensure that everyone has the same information on which to base a decision. If a contact cannot be avoided, it should be reported to the rest of the ZBA, along with the general content of the conversation. • Be familiar with your Zoning Ordinance and Master Plan • Check with Zoning Administrator if questions • Prepare questions for applicant B. DO NOT: • Have ex parte communication with applicant or other interested parties • Be involved if directly interested in outcome • Allow yourself to be forced into a premature decision (but do not table/adjourn for sake of avoiding decision)(but can conditionally/tentatively approve/deny): Sec. 94-61 (6): {03637-004-00093557.6} 18 Page 24 of 25  Upon the day for hearing an application or appeal, the board of zoning appeals may adjourn the hearing in order to permit the obtaining of additional information, or to cause such further notice as it deems proper to be served upon such other property owners as it decides may be interested in such application or appeal. In the case of an adjourned hearing, persons previously notified and persons already heard need not be notified of the time of resumption of such hearing. Render decision within 30 days of final hearing (Sec. 94-62). {03637-004-00093557.6} 19 Page 25 of 25