HB-5926, As Passed House, November 10, 2010

 

 

 

 

 

 

 

 

 

 

 

 

HOUSE BILL No. 5926

 

March 9, 2010, Introduced by Rep. Walsh and referred to the Committee on Intergovernmental and Regional Affairs.

 

     A bill to amend 2006 PA 110, entitled

 

"Michigan zoning enabling act,"

 

by amending sections 208, 601, and 606 (MCL 125.3208, 125.3601, and

 

125.3606), as amended by 2008 PA 12.

 

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

 

     Sec. 208. (1) If the use of a dwelling, building, or structure

 

or of the land is lawful at the time of enactment of a zoning

 

ordinance or an amendment to a zoning ordinance, then that use may

 

be continued although the use does not conform to the zoning

 

ordinance or amendment. This subsection is intended to codify the

 

law as it existed before July 1, 2006 in section 216(1) 16(1) of

 

the former county zoning act, 1943 PA 183, section 286(1) 16(1) of

 


the former township zoning act, 1943 PA 184, and section 583a(1)

 

3a(1) of the former city and village zoning act, 1921 PA 207, as

 

they applied to counties, townships, and cities and villages,

 

respectively, and shall be construed as a continuation of those

 

laws and not as a new enactments enactment.

 

     (2) The legislative body may provide in a zoning ordinance for

 

the completion, resumption, restoration, reconstruction, extension,

 

or substitution of nonconforming uses or structures upon terms and

 

conditions provided in the zoning ordinance. In establishing terms

 

for the completion, resumption, restoration, reconstruction,

 

extension, or substitution of nonconforming uses or structures,

 

different classes of nonconforming uses may be established in the

 

zoning ordinance with different requirements applicable to each

 

class.

 

     (3) The legislative body may acquire, by purchase,

 

condemnation, or otherwise, private property or an interest in

 

private property for the removal of nonconforming uses and

 

structures. The legislative body may provide that the cost and

 

expense of acquiring private property may be paid from general

 

funds or assessed to a special district in accordance with the

 

applicable statutory provisions relating to the creation and

 

operation of special assessment districts for public improvements

 

in local units of government. Property acquired under this

 

subsection by a city or village shall not be used for public

 

housing.

 

     (4) The elimination of the nonconforming uses and structures

 

in a zoning district is declared to be for a public purpose and for

 


a public use. The legislative body may institute proceedings for

 

condemnation of nonconforming uses and structures under 1911 PA

 

149, MCL 213.21 to 213.25.

 

     Sec. 601. (1) A zoning ordinance shall create a zoning board

 

of appeals. A zoning board of appeals in existence on June 30, 2006

 

may continue to act as the zoning board of appeals subject to this

 

act. 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.

 

     (2) The legislative body of a city or village may act as a

 

zoning board of appeals and may establish rules to govern its

 

procedure as a zoning board of appeals.

 

     (3) A zoning board of appeals shall be composed of not fewer

 

than 5 members if the local unit of government has a population of

 

5,000 or more or not fewer than 3 members if the local unit of

 

government has a population of less than 5,000. The number of

 

members of the zoning board of appeals shall be specified in the

 

zoning ordinance.

 

     (4) In a county or township, 1 of the regular members of the

 

zoning board of appeals shall be a member of the zoning commission,

 

or of the planning commission if the planning commission is

 

functioning as the zoning commission. In a city or village, 1 of

 

the regular members of the zoning board of appeals may be a member

 

of the zoning commission, or of the planning commission if the

 

planning commission is functioning as the zoning commission, unless

 

the legislative body acts as the zoning board of appeals under

 

subsection (2). A decision made by a city or village zoning board

 


of appeals before the effective date of the 2007 amendatory act

 

that amended this section February 29, 2008 is not invalidated by

 

the failure of the zoning board of appeals to include a member of

 

the city or village zoning commission or planning commission, as

 

was required by this subsection before that amendatory act took

 

effect date.

 

     (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 or,

 

in the case of a county, residing within the county but outside of

 

any city or village. The members selected shall be representative

 

of the population distribution and of the various interests present

 

in the local unit of government.

 

     (6) Subject to subsection (2), 1 regular or alternate member

 

of a zoning board of appeals may be a member of the legislative

 

body. Such a member shall not serve as chairperson of the zoning

 

board of appeals. An employee or contractor of the legislative body

 

may not serve as a member of the zoning board of appeals.

 

     (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 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.

 

     (8) A member of the zoning board of appeals may be paid a

 

reasonable per diem and reimbursed for expenses actually incurred

 

in the discharge of his or her duties.

 

     (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.

 

     (10) The terms of office for members an appointed to member of

 

the zoning board of appeals shall be for 3 years, except for

 

members a member serving because of their his or her membership on

 

the zoning commission or legislative body, whose terms term shall

 

be limited to the time they are members of those bodies he or she

 

is a member of that body. When members are first appointed, the

 

appointments may be for less than 3 years to provide for staggered

 

terms. A successor shall be appointed not more than 1 month after

 

the term of the preceding member has expired.

 

     (11) A vacancy on the zoning board of appeals shall be filled

 

for the remainder of the unexpired term in the same manner as the

 

original appointment.

 

     (12) A zoning board of appeals shall not conduct business

 


unless a majority of the regular members of the zoning board of

 

appeals are present.

 

     (13) A member of the zoning board of appeals who is also a

 

member of the zoning commission, the planning commission, or the

 

legislative body shall not participate in a public hearing on or

 

vote on the same matter that the member voted on as a member of the

 

zoning commission, the planning commission, or the legislative

 

body. However, the member may consider and vote on other unrelated

 

matters involving the same property.

 

     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.

 

     (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 whichever of the following deadlines comes

 

first:

 

     (a) Thirty 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

 

     (b) Twenty-one days after the zoning board of appeals approves

 

the minutes of its decision.

 

     (4) The court may affirm, reverse, or modify the decision of

 

the zoning board of appeals. The court may make other orders as

 

justice requires.