HOUSE BILL No. 5010 July 3, 1997, Introduced by Rep. Brackenridge and referred to the Committee on Local Government. A bill to amend 1921 PA 207, entitled "City and village zoning act," by amending section 5 (MCL 125.585), as amended by 1986 PA 191. THE PEOPLE OF THE STATE OF MICHIGAN ENACT: 1 Sec. 5. (1) The legislative body of a city or village may 2 act as a board of appeals upon questions arising under a zoning 3 ordinance. THE LEGISLATIVE BODY SHALL NOT SERVE AS THE ZONING 4 BOARD OF APPEALS IF THE LEGISLATIVE BODY REVIEWS AND APPROVES 5 SPECIAL LAND USES UNDER SECTION 14A OR PLANNED UNIT DEVELOPMENTS 6 UNDER SECTION 14B AND THE ZONING ORDINANCE PROVIDES THAT THESE OR 7 OTHER DECISIONS MADE BY THE LEGISLATIVE BODY ARE APPEALED TO THE 8 ZONING BOARD OF APPEALS. The legislative body may establish rules 9 to govern its procedure as a board of appeals. In the 10 alternative, if the legislative body of a city or village 11 desires, the legislative body may appoint a board of appeals 03382'97 TMV 2 1 consisting of not less than 5 members, each to be appointed for a 2 term of 3 years. Appointments of the first members shall be for 3 terms of 1, 2, and 3 years, respectively, so as nearly as possi- 4 ble to provide for the appointment of an equal number of members 5 each year. After the initial appointments, each member shall 6 hold office for the full 3-year term. 7 (2)In accord withUNDER procedures specified in the 8 zoning ordinance, the legislative body of a city or village may 9 appoint not more than 2 alternate members for the same term as 10 regular members of the board of appeals. The alternate members 11 may be called on a rotating basis as specified in the zoning 12 ordinance to sit as regular members of the board of appeals in 13 the absence of a regular member. An alternate member may also be 14 called to serve in the place of a regular memberfor the purpose15of reachingTO REACH a decision on a case in which the regular 16 member has abstainedfor reasonsBECAUSE of A conflict of 17 interest OR BECAUSE THE REGULAR MEMBER MADE OR PARTICIPATED AS A 18 MEMBER OF THE BODY THAT MADE THE ORDER, REQUIREMENT, DECISION, OR 19 DETERMINATION APPEALED FROM. A REGULAR MEMBER SHALL ABSTAIN 20 EITHER IF REQUIRED BY LAW BECAUSE OF A CONFLICT OF INTEREST OR IF 21 THE REGULAR MEMBER MADE OR PARTICIPATED AS A MEMBER OF THE BODY 22 THAT MADE THE ORDER, REQUIREMENT, DECISION, OR DETERMINATION 23 APPEALED FROM. The alternate memberhaving been appointed24 shall serve in the case until a final decision has been made. 25 The alternate membershall haveHAS the same voting rights as a 26 regular member of the board of appeals. 03382'97 3 1 (3) The board of appeals shall hear and decide appeals from 2 and review any order, requirements, decision, or determination 3 made by an administrative official or body charged with the 4 enforcement of an ordinance adopted under this act. The board of 5 appeals shall also hear and decide matters referred to the board 6 or upon which the board is required to pass under an ordinance of 7 the legislative body adopted under this act. For special land 8 use and planned unit development decisions, an appeal may be 9 taken to the board of appeals only if provided for in the zoning 10 ordinance. 11 (4) In a city or village having a population of less than 12 1,000,000, the concurring vote of a majority of the members of 13 the boardshall beIS necessary to reverse an order, require- 14 ment, decision, or determination of an administrative official or 15 body, or to decide in favor of the applicant a matter upon which 16 the board is required to pass under an ordinance, or to effect a 17 variation in an ordinance except that a concurring vote of 2/3 of 18 the members of the boardshall beIS necessary to grant a vari- 19 ance from uses of land permitted in an ordinance. In a city 20 having a population of 1,000,000 or more, the concurring vote of 21 2/3 of the members of the board shall be necessary to reverse an 22 order, requirement, decision, or determination of an administra- 23 tive official or body, or to decide in favor of the applicant a 24 matter upon which the board is required to pass under an ordi- 25 nance, or to effect a variation in an ordinance. 26 (5) An appeal may be taken by a person aggrieved, or by an 27 officer, department, board, or bureau of the city or village. If 03382'97 4 1 a city or village hascreated or may createa board of rules or 2 board of building appeals, that board may be enlarged to consist 3 of not less than 5 members, and these may be appointed as the 4 board of appeals as provided in this section. 5 (6) An appeal under this section shall be taken, within a 6 time prescribed by the board of appeals by general rule, by the 7 filing with the officer or body from whom the appeal is taken and 8 with the board of appeals of a notice of appeal specifying the 9 grounds for the appeal. The officer or body from whom the appeal 10 is taken shall immediately transmit to the board all the papers 11 constituting the record upon which the action appealed from was 12 taken. 13 (7) An appeal under this section stays all proceedings in 14 furtherance of the action appealed from unless the officer or 15 body from whom the appeal is taken certifies to the board of 16 appeals, after the notice of appeal is filed, that by reason of 17 facts stated in the certificate, a stay would in the opinion of 18 the officer or body cause imminent peril to life or property, in 19 which case the proceedings shall not be stayedotherwise than20 EXCEPT by a restraining order.whichTHE RESTRAINING ORDER may 21 be granted by the board of appeals or by the circuit court, on 22 application, on notice to the officer or body from whom the 23 appeal is taken and on due cause shown. 24 (8) The board of appeals shall fix a reasonable time for the 25 hearing of the appeal and give due notice of the appeal to the 26 persons to whom real property within 300 feet of the premises in 27 question is assessed, and to the occupants of single and 2-family 03382'97 5 1 dwellings within 300 feet., the notice toTHE NOTICE SHALL be 2 delivered personally or by mail addressed to the respective 3 owners and tenants at the address given in the last assessment 4 roll.The board of appeals shall decide the appeal within a5reasonable time.If the tenant's name is not known, the term 6occupant"OCCUPANT" may be used. Upon the hearing, a party may 7 appear in person or by agent or by attorney. 8 (9) THE BOARD OF APPEALS SHALL DECIDE THE APPEAL WITHIN A 9 REASONABLE TIME. The board of appeals may reverse or affirm, 10 wholly or partly, or may modify the order, requirement, decision, 11 or determination appealed from and shall make an order, require- 12 ment, decision, or determination as in the board's opinion ought 13 to be made,in the premises,and to that end shall have all the 14 powers of the officer or body from whom the appeal is taken. If 15 there are practical difficulties or unnecessary hardship in the 16 way of carrying out the strict letter of the ordinance, the board 17 of appeals may in passing upon appeals vary or modify any of its 18 rules or provisions relating to the construction, or structural 19 changes in, equipment, or alteration of buildings or structures, 20 or the use of land, buildings, or structures, so that the spirit 21 of the ordinance shall be observed, public safety secured, and 22 substantial justice done. 23 (10) The board of appeals may impose conditions upon an 24 affirmative decision, as provided in section 4c(2). The legisla- 25 tive body of any city or village may authorize the remuneration 26 of the members of the board for attendance at each meeting. 03382'97 6 1 (11) The decision of the board of appeals shall be final. 2 However, a person having an interest affected by the zoning 3 ordinance may appeal to the circuit court. Upon appeal, the cir- 4 cuit court shall review the record and decision of the board of 5 appeals toinsureENSURE that the decision meets all of the 6 following REQUIREMENTS: 7 (a) Complies with the constitution and laws of this state. 8 (b) Is based upon proper procedure. 9 (c) Is supported by competent, material, and substantial 10 evidence on the record. 11 (d) Represents the reasonable exercise of discretion granted 12 by law to the board of appeals. 13 (12) If the court finds the record of the board of appeals 14 inadequate to make the review required by this section, or that 15 additional evidence existswhichTHAT is material and with good 16 reason was not presented to the board of appeals, the court shall 17 order further proceedings before the board of appeals on condi- 18 tionswhichTHAT the court considers proper. The board of 19 appeals may modify its findings and decision as a result of the 20 new proceedings, or may affirm the original decision. The sup- 21 plementary record and decision shall be filed with the court. 22 (13) As a result of the review required by this section, the 23 court may affirm, reverse, or modify the decision of the board of 24 appeals. 03382'97 Final page. TMV