House Introduced Bill 4290

HOUSE BILL No. 4290


     February 20, 2001, Introduced by Rep. Jamnick and referred to the Committee on Local Government and Urban Policy.


        A bill to amend 1921 PA 207, entitled

   "City and village zoning act,"

   by amending sections 5 and 10 (MCL 125.585 and 125.590), section

   5 as amended by 2000 PA 20.

               THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

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           Sec. 5.  (1) The legislative body of a city or village may

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      act as a board of appeals upon questions arising under a zoning

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      ordinance.  The legislative body may establish rules to govern

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      its procedure as a board of appeals.  In the alternative, the

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      legislative body may appoint a board of appeals consisting of not

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      less than 5 members, each to be appointed for a term of 3 years.

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      Appointments of the first members shall be for terms of 1, 2, and

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      3 years, respectively, so as nearly as possible to provide for

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      the subsequent appointment of an equal number of members each




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      year.  After the initial appointments, each member shall hold

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      office for the full 3-year term.

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           (2) Under procedures specified in the zoning ordinance, the

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      legislative body of a city or village may appoint not more than 2

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      alternate members for the same term as regular members of the

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      board of appeals.  The alternate members may be called on a

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      rotating basis as specified in the zoning ordinance to sit as

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      regular members of the board of appeals in the absence of a regu-

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      lar member.  An alternate member may also be called to serve in

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      the place of a regular member  for the purpose of reaching a

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      decision  on a case in which the regular member has abstained

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       for reasons  BECAUSE of conflict of interest.  The alternate

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      member called shall serve in the case until a final decision is

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      made.  The alternate member has the same voting rights as a regu-

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      lar member of the board of appeals.

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           (3) THE LEGISLATIVE BODY OF A CITY OR VILLAGE MAY AUTHORIZE

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      COMPENSATION OF THE MEMBERS OF THE BOARD OF APPEALS FOR

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      ATTENDANCE AT EACH MEETING.

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           (4)  (3)  The board of appeals shall hear and decide appeals

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      from and review any order, requirements, decision, or determina-

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      tion made by an administrative official or body charged with the

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      enforcement of an ordinance adopted under this act.  The board of

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      appeals shall also hear and decide matters referred to the board

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      or upon which the board is required to pass under an ordinance

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      adopted under this act.  For special land use and planned unit

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      development decisions, an appeal may be taken to the board of

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      appeals only if provided for in the zoning ordinance.



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           (5)  (4)  In a city or village having a population of less

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      than  1,000,000  900,000, the concurring vote of a majority of

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      the members of the board is necessary to reverse an order,

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      requirement, decision, or determination of an administrative

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      official or body, or to decide in favor of the applicant a matter

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      upon which the board is required to pass under an ordinance, or

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      to effect a variation in an ordinance except that a concurring

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      vote of 2/3 of the members of the board is necessary to grant a

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      variance from uses of land permitted in an ordinance.  In a city

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      having a population of  1,000,000  900,000 or more, the concur-

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      ring vote of 2/3 of the members of the board is necessary to

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      reverse an order, requirement, decision, or determination of an

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      administrative official or body, or to decide in favor of the

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      applicant a matter upon which the board is required to pass under

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      an ordinance, or to grant a variance in an ordinance.

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           (6)  (5)  An appeal may be taken by a person aggrieved, or

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      by an officer, department, board, or bureau of the city or

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      village.  In addition, a variance in an ordinance may be applied

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      for and granted pursuant to section 4 of the uniform condemnation

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      procedures act, 1980 PA 87, MCL 213.54, and this act.  A board

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      of rules or board of building appeals of a city or village may be

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      enlarged to consist of not less than 5 members, and these may be

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      appointed as the board of appeals as provided in this section. 

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           (7)  (6)  An appeal under this section shall be taken  ,
   

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      within a time prescribed by the board of appeals by general rule

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       ,  by filing, with the officer or body from whom the appeal is

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      taken and with the board of appeals, a notice of appeal



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      specifying the grounds for the appeal.  The officer or body from

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      whom the appeal is taken shall immediately transmit to the board

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      all the papers constituting the record upon which the action

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      appealed from was taken.

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           (8)  (7)  An appeal under this section stays all proceedings

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      in furtherance of the action appealed from unless the officer or

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      body from whom the appeal is taken certifies to the board of

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      appeals, after the notice of appeal is filed, that by reason of

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      facts stated in the certificate, a stay would in the opinion of

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      the officer or body cause imminent peril to life or property.  If

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      such a certification is filed, the proceedings shall only be

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      stayed by a restraining order.  A restraining order may be

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      granted by the board of appeals or by the circuit court, on

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      application, on notice to the officer or body from whom the

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      appeal is taken and on due cause shown.

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           (9)  (8)  The board of appeals shall fix a reasonable time

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      for the hearing of the appeal and give notice of the appeal to

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      the persons to whom real property within 300 feet of the premises

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      in question is assessed, and to the occupants of single and

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      2-family dwellings within 300 feet.  The notice shall be deliv-

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      ered personally or by mail addressed to the respective owners and

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      tenants at the address given in the last assessment roll.  If a

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      tenant's name is not known, the term "occupant" may be used.

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      Upon the hearing, a party may appear in person or by AN agent or

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       by  attorney.

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           (10)  (9)  The board of appeals shall decide the appeal

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      within a reasonable time.  The board of appeals may reverse or



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      affirm, wholly or partly, or may modify the order, requirement,

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      decision, or determination appealed from.  and  THE BOARD OF

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      APPEALS shall make an order, requirement, decision, or determina-

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      tion as in the board's opinion  ought to  SHOULD be made in the

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       premises, and to that end shall have  MATTER, AND FOR THAT PUR-

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      POSE HAS all the powers of the officer or body from whom the

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      appeal is taken.  If there are practical difficulties or unneces-

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      sary hardship in carrying out the strict letter of the ordinance,

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      the board of appeals may in passing upon appeals grant a variance

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      in any of its rules or provisions relating to the construction

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      OF,  or  structural changes in, equipment FOR, or alteration of

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      buildings or structures, or the use of land, buildings, or struc-

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      tures, so that the spirit of the ordinance  shall be  IS

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      observed, public safety secured, and substantial justice done.

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           (11)  (10)  The board of appeals may impose conditions upon

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      an affirmative decision, as provided in section 4c(2).  The leg-

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      islative body of a city or village may authorize the remuneration

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      of the members of the board for attendance at each meeting. 

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           (12)  (11)  The decision of the board of appeals is final.

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      However, SUBJECT TO SECTION 10(2), a person having an interest

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      affected by the zoning ordinance may appeal to the circuit

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      court.  Upon appeal, the circuit court shall review the record

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      and decision of the board of appeals to ensure that the decision

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      meets all of the following requirements:

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           (a) Complies with the constitution and laws of this state.

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           (b) Is based upon proper procedure.





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           (c) Is supported by competent, material, and substantial

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      evidence on the record.

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           (d) Represents the reasonable exercise of discretion granted

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      by law to the board of appeals.

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           (13)  (12)  If the court finds the record of the board of

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      appeals inadequate to make the review required by this section,

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      or that additional material evidence exists that with good reason

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      was not presented to the board of appeals, the court shall order

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      further proceedings before the board of appeals on conditions

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      that the court considers proper.  The board of appeals may modify

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      its findings and decision as a result of the new proceedings, or

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      may affirm the original decision.  The supplementary record and

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      decision shall be filed with the court.

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           (14)  (13)  As a result of  the review required by this

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      section  AN APPEAL UNDER SUBSECTION (12), the court may affirm,

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      reverse, or modify the decision of the board of appeals.

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           Sec. 10.  (1)  Any  A party aggrieved by  any  AN
   order,

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      determination, or decision of  any  AN officer, agency, board, OR

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      commission, THE board of appeals, or the legislative body of

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       any  A city or village, made pursuant to  the provisions of
   

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      section 3a  of this act  may obtain a review thereof both on the

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      facts and the law, in the circuit court for the county  wherein 

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      WHERE ALL OR PART OF the property involved  or some part thereof,

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      is situated:  Provided, That application is made to  IS LOCATED.

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      HOWEVER, THE AGGRIEVED PARTY SHALL FILE THE APPLICATION FOR

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      REVIEW WITH the court within 30 days after delivery of a copy of

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       such  THE order, determination, or decision, by  certiorari
   



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      WRIT OF SUPERINTENDING CONTROL or by any other method permissible

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      under the rules and practices of the circuit courts.  of this

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      state.  On such review, the courts  shall  have
   jurisdiction to

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      make  such  further orders  in respect thereto  as justice
   may

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      require.  An appeal may be had from the  THE decision of any

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      circuit court  or condemnation court  MAY BE APPEALED to the

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      supreme court in the same manner as provided by the laws of this

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      state with respect to appeals from circuit courts.  ; and in the

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      event of  ON such AN appeal, the issue of  non-conformity 

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      NONCONFORMITY may be reviewed as an issue of law in the supreme

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      court.

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           (2) AN AGREEMENT TO PURCHASE PROPERTY CONTINGENT ON AN

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      ORDER, DETERMINATION, OR DECISION OF AN OFFICER, AGENCY, BOARD,

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      OR COMMISSION, THE BOARD OF APPEALS, OR THE LEGISLATIVE BODY OF A

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      CITY OR VILLAGE UNDER THIS ACT OR UNDER AN ORDINANCE ADOPTED

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      UNDER THIS ACT IS NOT A BASIS FOR STANDING IN A JUDICIAL PROCEED-

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      ING, INCLUDING BUT NOT LIMITED TO A PROCEEDING UNDER SUBSECTION

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      (1), CHALLENGING SUCH AN ORDER, DETERMINATION, OR DECISION.

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           (3) AN AGREEMENT TO PURCHASE PROPERTY CONTINGENT ON AN

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      AMENDMENT TO AN ORDINANCE ADOPTED UNDER THIS ACT IS NOT A BASIS

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      FOR STANDING IN A JUDICIAL PROCEEDING, INCLUDING BUT NOT LIMITED

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      TO A PROCEEDING UNDER SUBSECTION (1), CHALLENGING AN ORDINANCE

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      ADOPTED UNDER THIS ACT.











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