A. Intent.
The Board of Appeals shall have the authority to approve special exceptions, variances, nonconforming structures, uses, and properties, and hear appeals on determinations made by the Zoning Administrator and the Planning Commission. It shall use the processes specified in this section.
B. Application submittal.
a. An application.
b. Two scaled hard copy site plans sized 24 inches by 32 inches.
c. The application fee.
d. The required supplementary materials.
e. An electronic copy of everything.
2. The application materials shall be submitted to the Community and Neighborhood Services Department by 5:00 p.m. 21 days prior to the Board of Appeals meeting. Applications shall only be accepted if all required contents are provided.
C. Public notices of applications.
Upon receipt of an application, the Community and Neighborhood Services Department shall adhere to the Michigan
Zoning Enabling Act, P.A. 110 of 2006 and mail a written notice to notify property owners and occupants within a 300-foot radius. If the proposed
development site borders an adjacent municipality, that municipal governmental office and the properties within 300 feet of the subject
site's property lines shall both be noticed. See
Sec. 39-12.06: Administrative Staff review process for site plans and
Sec. 39-12.07: Planning Commission application types and review process for noticing requirements pertaining to Administrative and
Planning Commission reviews.
D. Special exceptions.
The
Board of Appeals, after a
public hearing, shall have the power to grant a special exception for the following circumstances, and based on the following criteria. Special exceptions shall not be considered
variances, as specified in
§ 39-12.12E, and shall instead be subject to the approval criteria described in each special exception type below.
a. Criteria of approval. The
Board of Appeals may approve the ADU if it determines that the standards specified in
§ 39-9.07D are met.
2. Conversions in LDR from a
single detached dwelling unit to
two attached dwelling units. This is applicable when a noticed property
owner requests a conversion be reviewed as a special exception. See
§ 39-9.04D.
a. Criteria of approval. The
Board of Appeals may approve the conversion if it determines that the standards specified in
§ 39-9.04D and
§ 39-9.07D are met.
3. Along or within.
This is applicable when an applicant requests a vertical or horizontal extension of a building along or within the established setback line that will result in a nonconforming setback in the side or rear yard.
a. Criteria for approval. The Board of Appeals may approve the request if it finds find that the proposed use is conforming, the encroachment is in character with the existing neighborhood, and the extension of the building will not be detrimental to adjoining properties or to the neighborhood.
4. Substandard residential lot setback reduction.
This is applicable when an applicant requests a reduction in setbacks for the construction or renovation of a building located on an existing lot of record that does not meet the minimum standards of the zone district where it is located.
a. Criteria for approval. The Board of Appeals may reduce the side setback, lot width and/or lot area requirements if it determines, with evidence provided by the applicant, that 60% or more of the lots within 300 feet of the property line along the same side of the street are developed at a lesser front, rear, or side yard, lot width and lot area than required in the zone district; the encroachment is in character with the existing neighborhood; the encroachment will not be detrimental to adjoining properties or to the neighborhood; and the proposed dwelling unit shall not be erected, built, or constructed less than 10 feet from adjoining dwelling units.
5. Flag lots.This is applicable when a property owner requests to divide a parcel of land, located in LDR, CNR, MDR, TNR, or HDR, into two or more lots and the resulting lot(s) does not meet the minimum width requirement of the Zone District, at the front building setback.
a. Criteria of approval. The Board of Appeals may approve a flag lot request if it determines the following:
1) The proposed
flag lot shall have a twenty-foot-wide legal access to a
public street;
2) The
lots shall meet the area and width requirements of the
zone district where they are located. For purposes of calculating
lot size and area, no portion of the
lot that is less than 40 feet in width shall be considered;
3) The property split shall be compatible and harmonious with the established character of adjacent and nearby residentially developed lands and shall not have a detrimental effect on the reasonable enjoyment of adjacent properties;
4) The additional curb cut will not, in the opinion of the
Board of Appeals, have a negative impact on traffic safety and efficiency;
5) The property shall be served by City water and sewer; and
6) The split must comply with the Land Division Act,
Master Plan, street plan, utility plan or other plans or Code of Ordinances applicable to the use or division of land, and shall conform to all of the provisions thereof.
7) If the proposed
flag lot(s) will result in more than two single-family homes or two duplexes a fire apparatus access road may be required by the International Fire Code. See Section
39-5.06 for fire access requirements.
6. Fair housing accommodations.
This is applicable when a
UDO requirement would be an impediment to providing reasonable accommodation to individuals with disabilities, based on the Fair Housing Accommodation Policy in
Sec. 39-9.10: Fair housing accommodation policy.
a. Criteria for approval. The Board of Appeals may grant a special exception from UDO requirements if it determines that all of the following are met:
1) The requested accommodation is necessary to make housing available to an individual with disabilities under the Fair Housing Laws and will be used by an individual with disabilities protected under Fair Housing Laws.
2) The requested accommodation would not impose an undue financial or administrative burden on the City.
3) The requested accommodation would not require a fundamental alteration in the nature of the City's zoning requirements.
4) There is not an alternative accommodation which may provide an equivalent level of benefit to the applicant.
b. If the request is for a Recovery Residence, the Board of Appeals shall take the following into consideration when making its decision:
1) the recovery residence is state-licensed as a substance use disorder facility;
2) If it is managed under an established entity that conducts its own inspections and has its own standards for the benefit of occupants, e.g., CARF International, National Alliance for Recovery Residences (NARR) or any equivalent entity having similar requirements for membership;
3) The proposed on-site management of the property;
4) How the requested accommodation will benefit the people in the program; and
5) Whether the property is within 500 feet of another property that provides similar accommodations for five or more unrelated persons.
7. Group child-care home: to allow a private home to care for and supervise seven to 12 minor children for periods of less than 24 hours a day and for more than four weeks during a calendar year by an unrelated adult.
a. Criteria for approval.
1) The
applicant shall demonstrate that all criteria in
§ 39-4.02D is met;
2) The
applicant shall provide an application with the items specified in
§ 39-12.04C and the following items:
a) Sketch floor plan of floors and rooms proposed for use in the child-care operations;
b) Location of drives and parking areas serving the premises;
c) Location and heights of any walls, fences, or landscape barriers, including location of gates and types of construction material; and
d) Location of all outside play areas to be used in the child-care program and identification of any portion of the exterior premises that will be specifically excluded from use or access by child-care activities;
3) The Board of Appeals may grant a special exception permitting the use of the residence as a group child-care home if it finds, based on the evidence submitted by the applicant and the public hearing, that all of the following exist:
a) The group child-care home shall be located on a
site with a minimum of 5,000 square feet of
lot area and the proposed
site shall contain a minimum of 100 square feet per child of usable outdoor play area. For purposes of this section, "usable outdoor play area" shall be defined as the area located on the
lot behind the established
front yard setback of the home that is available or devoted to outdoor activities, exclusive of any area occupied by a swimming pool. The area shall be free from sharp gravel, glass, or cinder, and shall be well-drained.
b) The access drive for the group child-care home is not a shared driveway unless the
applicant shall file the written consent of the abutting property
owner.
c) The proposed group child-care home shall be inspected for compliance with the
Chapter 14: Housing of the Code of Ordinances. Additional code inspection may be required as is necessary to determine compliance with regulations that are now or may be determined to be specifically applicable to group child care, and for which the City has been determined to be the enforcing agency.
d) The proposed use of the residence for group child care shall not change the essential character of the surrounding residential area, and shall not create a nuisance in fact or law relating to vehicular parking, noise, additional congestion, or
density in excess of residential
uses of the property in the
zone district.
e) The grant of the special exception would not impair the health, safety, welfare, or reasonable enjoyment of adjacent or nearby residential properties.
8. Bed-and-breakfasts with five to eight guest rooms.
a. Criteria for approval.
1) The
applicant shall demonstrate that all criteria in
§ 39-4.02C are met.
2) The property size shall be a minimum of 15,000 square feet.
3) Landscaping and
screening in the form of natural vegetation and/or fencing shall be provided to buffer and soften the view from neighboring residential properties between parking areas and adjacent residential uses.
9. Nonresidential uses in CNR. Nonresidential uses in CNR shall be a maximum of 2,500 square feet unless a special exception is approved for a greater size. This pertains to new construction or additions.
a. Criteria for approval. A special exception shall be granted only if the Board of Appeals determines that:
1) The
applicant has established, with the submittal of photographs, drawings, and elevation plans, that the proposed
structure (including seasonal, temporary, and
accessory structures), and uses associated with the
structures will not adversely affect adjacent properties with respect to the emission and transmission of noise, smoke, dust, dirt, litter, odor, vibration, light
glare, traffic congestion, emergency services, drainage, erosion, light and ventilation, surface water and groundwater quality, overcrowding of persons, sanitation, property values, general appearance, character, and other similar considerations.
2) The
development project will comply with the
site design,
landscaping, setback, buffering, and
lighting of
off-street parking area requirements in
UDO.
3) Sufficient
off-street parking is provided for the proposed use.
4) The City Engineer has approved drainage plans for the proposed
structure or expansion.
5) The
structure has been approved under the infill design review process pursuant to
Sec. 39-9.09: Infill design review standards.
b. Conditions of approval. The Board of Appeals may approve the special exception subject to such additional conditions or restrictions as it deems necessary to assure compatibility with adjoining or nearby residential property, or to protect the health, safety, and general welfare of the neighborhood and community, including, but not limited to, the maximum number of vehicles allowed on-site.
E. Use and non-use variances may be granted by the Board of Appeals, after a public hearing.
1. Use variance.
a. Use variances are required when an applicant wants to use a property for a purpose not allowed by UDO in the zone district where the property is located.
b. Granting of a use variance. Use variances may be granted by the Board of Appeals only in cases where the applicant demonstrates, in the official record of the public hearing, that undue hardship exists by showing all of the following:
1) The building, structure, or land cannot be reasonably used for any of the uses permitted by right or by special land use approval in the zone district in which it is located.
2) The need for the requested variance is due to unique circumstances or physical conditions of the property involved, such as narrowness, shallowness, shape, water, or topography and is not due to the applicant's personal or economic hardship.
3) The proposed use will not alter the essential character of the neighborhood.
4) The need for the requested variance is not the result of actions of the property owner or previous property owner (self-created).
2. Non-use variances.
a. Non-use variances, also called dimensional variances, are required for the construction, structural change, or alteration of a building or structure when the applicant cannot meet the strict dimensional requirements, or any other non-use related standards of UDO.
b. Granting of a non-use variance. A non-use variance may be granted by the Board of Appeals only when the applicant demonstrates, in the official record of the public hearing, that practical difficulty exists by showing all of the following:
1) The need for the requested variance is due to unique circumstances or physical conditions of the property involved, such as narrowness, shallowness, shape, water, or topography and is not due to the applicant's personal or economic difficulty.
2) The need for the requested variance is not the result of actions of the property owner or previous property owners (self-created).
3) That strict compliance with regulations governing area, setback, frontage, height, bulk, density, or other dimensional requirements will unreasonably prevent the property owner from using the property for a permitted purpose, or will render conformity with those regulations unnecessarily burdensome.
4) The requested variance is the minimum variance necessary to do substantial justice to the applicant and to other property owners in the district.
5) The requested variance will not cause an adverse impact on surrounding property, property values, or the use and enjoyment of property in the neighborhood or zone district.
F. Nonconforming uses and structures.
Some nonconforming uses and structures may be modified, changed or expanded after a public hearing by the Board of Appeals. Nonconforming uses may continue, but shall not be encouraged where they are incompatible with other approved uses in the zone district. Nonconforming structures may be enlarged or altered as long as the proposed change does not extend the life of the structure longer than originally designed. The Board of Appeals shall approve the requested changes after it determines, based on the factors below, that the modification, change or expansion will not be more incompatible, detrimental or create additional nuisance factors than the previous nonconforming use or structure.
1. Nonconforming uses may be changed to another nonconforming use if the applicant can demonstrate that the proposed use will not:
a. Adversely impact neighboring properties or decrease the value.
b. Increase density or congestion.
c. Be a general nuisance.
d. Increase the amount of radioactivity, vibration, noise, odor, heat or other adverse factors.
e. Create a general nuisance to neighbors or in the neighborhood.
f. Require increased off-street parking, which would be detrimental to neighboring properties.
g. Impact the health, safety and welfare of adjacent properties.
2. Damaged uses and structures. A nonconforming use and/or structure that is damaged, deteriorated, or destroyed by fire, flood, wind, or other calamity at a value more than the state equalized value (SEV) at the time of destruction, may be restored if the Board of Appeals finds the following conditions are met:
a. Restoration of the structure and/or use will not substantially extend the probable duration of the nonconforming structure and/or use.
b. Restoration of the structure or use will be done with similar building materials, structural layout and design, construction methods, fixtures, and mechanical equipment, thereby limiting the possibility that such restoration will substantially extend the probable duration of the structure or use.
c. Circumstances are such that the land occupied by the nonconforming structure or use cannot reasonably meet the criteria of the zone district.
G. Appeal of determinations.
1. Zoning Administrator. The
Board of Appeals shall have authority to hear and decide appeals where it is alleged that there is an error in an order, requirement, permit, decision, or refusal made by the
Zoning Administrator. Such an appeal shall be requested by the
applicant or an aggrieved party.
2. Planning Commission. The
Board of Appeals shall have the authority to hear and decide appeals of
Planning Commission determinations per
§ 39-12.07C.5.
3. Text and Map interpretations. The
Board of Appeals shall have authority to hear and decide requests for text interpretations of
UDO where it is alleged that there is an error made by the
Zoning Administrator in their interpretation. The
Board of Appeals shall make such decisions so that the intent of
UDO shall be observed. Text interpretations shall be limited to the issues presented and shall be based upon a reading of
UDO as a whole and shall not have the effect of amending
UDO.
H. Board of Appeals procedures.
1. Consent of all property owners required. An application to the Board of Appeals shall be made with the written consent of all owners of the property subject to the application, or their legal representative, except for an appeal by a party challenging an approval granted to a third-party applicant for such applicant's property.
2. Stay of proceedings. An appeal filed under this article shall stay all proceedings in furtherance of the action appealed unless the Building Official certifies to the Board of Appeals, after notice of appeal has been filed, that by reason of fact stated in the certificate a stay would, in their opinion, cause imminent peril to life or property. In such case, proceedings shall not be stayed other than by a restraining order, which may be granted by the Board of Appeals or by the Circuit Court on application, after notice to the Building Official and on due cause shown.
3. Review criteria. In hearing and deciding appeals, the Board of Appeals review shall be based on the record presented to the Board of Appeals.
4. Decision by the Board of Appeals. The concurring vote of a majority of the membership of the Board of Appeals shall be necessary to reverse any order, requirement, decision, or determination of an official, board, or commission made in the administration of UDO, to decide in favor of an applicant on any matter upon which the Board of Appeals has authority.
a. Disposition and duration of decisions. The Board of Appeals may reverse, affirm, vary or modify any order, requirement, decision, or determination presented in a case within the Board of Appeals jurisdiction, and shall have all of the powers of the official, board, or commission from whom the appeal is taken, subject to the Board of Appeals' scope of review, as specified in UDO and/or by law. The Board of Appeals may remand a case for further proceedings and decisions, with or without instructions.
b. Period of validity. Any decision of the Board of Appeals favorable to the applicant shall remain valid only as long as the information and data relating to such decision is found to be correct, and the conditions upon which the decision was based are maintained. The relief granted by the Board of Appeals shall be valid for a period not longer than one year, unless otherwise specified by the Board of Appeals, and within such period of effectiveness, actual on-site improvement of property in accordance with the approved plan, and the relief granted, under a valid building permit, shall be commenced or the grant of relief shall be deemed void.
5. Conditions. The Board of Appeals may impose reasonable conditions in connection with an affirmative decision on an appeal, interpretation or variance request. Conditions imposed shall meet the following requirements:
a. Be designed to protect the health, safety and welfare and the social and economic well-being of those who will use the property or activity under consideration, residents and property owners adjacent to the subject property or activity, and the community as a whole.
b. Be related to the valid exercise of the police power and purposes which are affected by the proposed use or activity.
c. Be necessary to meet the intent of UDO, be related to the standards established in UDO, and be necessary to ensure compliance with those standards.
d. Conditions imposed with respect to the approval of a variance shall be recorded as part of the Board of Appeals minutes, and shall remain unchanged except upon the mutual consent of the Board of Appeals and the property owner following public notice and public hearing as required.
e. The Board of Appeals shall have no obligation to consider and/or grant a request for relief unless and until a conforming and complete application has been filed; including relevant plans, studies, and other information.
6. Record of proceedings. The City of Holland shall prepare and keep minutes of the Board of Appeals proceedings, showing the findings, decisions, conditions, if any. The minutes shall be within the ultimate authority, and shall be the responsibility of, the Clerk or designee and shall be subject to approval of the Board of Appeals. The official records of the Board of Appeals proceedings shall be filed with the City Clerk and shall be public records.
7. Appeal of a Board of Appeals decision. Appeals of a Board of Appeals decision shall be made to the Circuit Court in accordance with state law.
8. Application reconsideration. If an application to the Board of Appeals is denied, no like application shall be considered, unless;
a. Six months or more has lapsed since the date of denial on the previous application; or
b. The new appeal is based upon materially changed plans.
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