KEWEENAW COUNTY
5095 4th Street
Eagle River, Michigan 49950

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Keweenaw County Zoning Board of Appeals
 
KEWEENAW COUNTY ZONING BOARD OF APPEALS
5095 4th Street
Eagle River, Michigan 49950

Commission Members

Jim Vivian, Jr., Chairman

Frank Kastelic, Member

Pauline Johnson, Member


Steve Peters, Member


Tom Hall, Planning Commission Liaison


Peter Mace, Alternate Member

Mel Jones, Alternate Member

ZBA Meetings

Keweenaw County Courthouse
5095 4th Street
Eagle River, Michigan 49950

Meetings are held as needed.

Public Hearings

If a variance is requested which requires a public meeting, the hearing will be scheduled on the soonest date listed above following publication in the Daily Mining Gazette.

Public Comment will be considered at the ZBA hearings. If you are unable to personally attend a ZBA hearing, you may submit written comments in support of, or in opposition to, a variance request by noon on the Friday preceding the public hearing.

Written comments may be sent to:
Keweenaw County Zoning Board of Appeals
Ann Gasperich, Keweenaw County Zoning Administrator
5095 Fourth Street
Eagle River, MI 49950

A Word About Zoning

A zoning law is a community's guide to its future development. That is its purpose. It is not meant to be just another governmental intrusion, another bit of red tape to be untangled before the property owner can go ahead with his plans. The very protections afforded residents and property owners within the community from undesirable development come from the restrictiveness of zoning.

A landowner can look at the zoning map and regulations and know that if he follows them, he has a right to use his land in a certain way (Use by Right), and that neighboring property is subject to the same restrictions. But, because all land in the district is subject to the same rules, and because no two parcels of land are precisely the same, problems can arise.

The Zoning Board of Appeals stands as a buffer between the property owner and the court and assures fair and equitable application of the

County's Zoning Ordinance. The court found:

"The creation of a Zoning Board of Appeals, with discretionary powers to meet specific cases of hardship or specific instances of improper classification, is not to destroy zoning as a policy, but to save it. The property of citizens cannot and ought not to be placed within a straitjacket. Not only may there be grievous injury caused by the immediate act of zoning, but time itself works changes which require adjustment. What might be reasonable today might not be reasonable tomorrow" (People v. Kerner, 125 Misc. 526)

This makes the Zoning Board of Appeals a safety valve, protecting landowners from unfair application of the laws in particular circumstances. The powers and duties of the Zoning Boad of Appeals are quite specifically set forth in the Michigan statutes.

Services Provided

Before approaching the Zoning Board of Appeals, property owners must seek an interpretation of the zoning law from the zoning administrator or building inspector to determine how it applies to their properties. If they disagree with that decision, they may appeal it to the Zoning Board of Appeals.

A neighboring property owner or other aggrieved person can initiate proceedings to enforce a zoning ordinance.

Any person aggrieved by a decision made by an officer, department, or board of the County can appeal that decision to the Zoning Board of Appeals.

Any person aggrieved by a decision of the Zoning Board of Appeals or any taxpayer in the community, may also seek judicial review of the decision.

Any person specially damaged by a violation can also seek to enforce a zoning ordinance by initiating an action in the courts for injunctive relief.

After a decision is made, the Zoning Administrator will carry out the decision made by the Zoning Board of Appeals. In hearing a timely appeal or granting a variance, the Zoning Board of Appeals essentially is acting like a court of law. The Zoning Board of Appeals' decisions are legally binding and an appeal of a ZBA decision is appealed to the Circuit Court.

Interpretations

The Zoning Board of Appeals hears appeals from the decisions of the zoning
enforcement officer or building inspector when interpretations of the zoning law are
involved. Only the ZBA can interpret the meaning of the zoning law.

Variances

The essential function of the Zoning Board of Appeals is to grant variances. A variance allows a landowner to use land or locate structures on the land in a manner which is prohibited by the zoning ordinance when a property owner can show unique, localized physical problems which give rise to hardship that can be overcome by varying the application of the ordinance without harming the purpose and intent of the ordinance.

Any variance granted by a zoning board of appeals shall run with the land and shall not be personal in nature to the person who applied for and received the variance.

Self-created hardship cannot qualify as the basis for a variance.

Concerns over the most profitable use of property are not proper grounds for granting a variance.

A variance cannot be contrary to the public interest.

An area variance, permitting development that deviates from dimensional requirements of the law, is granted to a landowner who encounters particular difficulties in locating structures on the land in compliance with the zoning regulations. Area variances deal with the standards in the zoning ordinances for things such as setbacks, height of structures, and density.

A use variance is one which permits a use of land other than the use prescribed by the zoning ordinance. Use variances are granted only when a landowner establishes that the current use restrictions produce an "unnecessary hardship", defined as "a situation where, in the absence of a variance, no feasible use can be made of the land," preventing the realization of a reasonable economic return on the land. Use variances are rarely granted because they may involve changing the character of an area.

The burden of proving an unnecessary hardship rests upon the applicant, and without such proof, a variance must be denied. The hardship must also be created by the ordinance. If the hardship is caused by actions of the owner, the applicant, or some other person, relief by means of variance may not be granted. Such a situation would arise where hardships result from improvements made in violation of the zoning ordinance, either willfully or innocently, in which case a variance cannot be granted.

For example, a homeowner wished to be granted a variance from the minimum side-yard requirements of the county ordinance in order to build a porch to "enjoy lake living, to accommodate his expanded family, and to increase the value of his land." The court held that none of these reasons was sufficient to justify the granting of a variance based on a practical difficulty or unnecessary hardship. Thus, practical difficulty and unnecessary hardship do not include conditions personal to the owner of the land, but rather to the conditions especially affecting the lot in question.

Limitations on the Zoning Board of Appeals Powers

A Zoning Board of Appeals may not itself impose zoning. This is the function of the local legislative body (Planning Commission and/or County Board of Commissioners).

A Zoning Board of Appeals cannot review the general rules laid down by the legislative body respecting the use of land. It has no power to set aside a law on the ground that its terms are arbitrary, unreasonable and unconstitutional.

A Zoning Board of Appeals does not have the authority to amend the zoning regulations or change the boundaries of the districts where they are applicable.

The Appeals Process

You may obtain appeal forms, along with detailed instructions, at the Keweenaw County Courthouse, Equalization/Zoning Office, Eagle River, MI.

The five steps in the Appeals process include:

1. Apply to the Zoning Board of Appeals

2. Schedule a hearing

3. Appear at the hearing

4. Make a decision once zoning is approved

5. Review state building code requirements

Withdrawal of Appeal

If you choose not to pursue your appeal, prior to legal advertising and notification, you should submit your request in writing to the Board so that the Board can withdraw the case, with no penalty to you.

Once notice has been published and mailed, and you choose not to continue the appeal process, present to the Board either in person or by mail a letter requesting to withdraw your case. This must be in writing and protects your right to an appeal in the future.

You cannot cancel a hearing date after it has been advertised and the abutters have been notified. You may choose to be represented by another party if you are unable to appear personally. Your agent may proceed forward with your case or request a deferral. The Board may in its discretion grant a deferral, but is not obligated to do so.

If you choose not to continue the appeal process, you may request that the Board dismisses it without prejudice, but this request must be made prior to the merits of the case being heard. This action would allow you to initiate the process again at your convenience without waiting a full year.

Frequently Asked Questions

When do I need to apply for a hearing before the Zoning Board of Appeals?
If you have received a refusal letter from the Zoning Administrator denying your application for a permit, an appeal can be filed with the Zoning Administrator. The time limitation for filing is prescribed by the Zoning Board of Appeals' general rule, usually 30 days, unless the Zoning Administrator determines otherwise.

An appeal to the Zoning Board of Appeals stays all proceedings in furtherance of the action appealed. However, if the Zoning Administrator certifies to the Zoning Board of Appeals that a stay would cause imminent peril to life or property, proceedings may be stayed only by a restraining order issued by the Zoning Board of Appeals or a circuit court.

Following receipt of a written request for a variance, the zoning board of appeals shall fix a reasonable time for the hearing of the request.

Where do I file the appeal form?
File the appeal form and appropriate fees with the Zoning Administrator, Keweenaw County Courthouse. We ask that the appeal be filed in person, or by someone representing you, so that we may check the form for accuracy and make sure it is filed within the allowed time period.

How much does it cost for filing an appeal form?
The fee for filing the appeal form is a total of $250 for any violations. All fees must be paid to the Treasurer, Keweenaw County, at the time of filing the appeal form. Payment must be in cash, money order, or personal check.

What happens when the Zoning Board of Appeals denies appeals?
If the Board denies your appeal, you must wait one year to refile an appeal, unless the proposal is substantially changed or unless the Board dismisses it without prejudice. In that event, you may refile without waiting the mandated one-year period.

What If's

What if the county official responsible for issuing permits makes a mistake and issues a permit for a use or a dimensional situation that really does not comply with the ordinance? Can a mistakenly issued permit be revoked when the mistake is discovered?
Yes.

What if the building is built before the mistake is discovered? Can the owner be prosecuted for ordinance violation?

Yes. An erroneously issued permit does not shield an owner from penalty for violating the code. In most cases the owner will argue (usually successfully) that it is unjust to penalize him or her for the violation because the project was built in reliance on the permit. But a court can throw out this argument, and usually will if there is any reason to think the owner knew or should have known that the permit was issued mistakenly.

What if someone builds a structure that complies perfectly with the use and dimensional rules, but the person never got a permit?
Failure to get a permit is a violation in its own right, even if the "use" is legal. The owner is liable for prosecution for non-compliance with the permit requirement.

What if the owner and the zoning official disagree on interpretation of the ordinance? For example, the ordinance says garages are permitted on residential lots as an accessory to a house. The applicant applies to build a 5 stall garage big enough to store and repair semitractors. The zoning official interprets the term "garage" as including ordinary household car garages and not big truck garages and turns down the application. What happens?
First, the zoning official has done his or her job, which is to interpret the ordinance and make decisions. If the applicant simply goes ahead and builds the garage in the face of the permit denial, the county can prosecute, and the owner's position in court will be weak because the owner acted in defiance of the permit decision (as well as in opposition to the ordinance) without pursuing the several routes to legal relief.

However, the applicant has several ways to appeal the denial. The applicant can petition the Zoning Board of Appeals for an appeal of the decision. This decision will then become the official decision superseding (or upholding) the zoning official’s decision. Another appeal option is to challenge the decision in court. A final option is for the applicant to petition the county board to amend the ordinance to add truck garages specifically to the use list for the residential district. If such an amendment were passed, the applicant could apply again and get the permit.

What if the zoning official has trouble interpreting the ordinance? Take the garage example. The code said "garage." On what basis did the official know whether "garage" meant a big truck repair building?
To be fair and proper and to have interpretive decisions stand up on appeal, the decisions should be based on words in the code and on the intent of the code. Does the code modify the word "garage "? Does it say "automobile garage" or garages "ordinarily and customarily found in residential areas?" Does the ordinance, as a whole or in the particular district, have a statement of intent? Does that statement have any bearing on the garage issue? Can an intent be read into the rules of the district even if there is no statement of intent? The district may be very strict. No commercial or industrial activities at all are allowed. This suggests an intent to shape a district of purely residential character and gives a possible basis for denying a commercial use. Does the ordinance provide for truck storage and repair garages in some other district? Does this show an intent to place the use in the commercial zone and, by implication, not in the residential zone?

What if several permits are needed to do what the applicant wants? The zoning checks out and a permit can be issued consistent with the zoning ordinance. But what if there is a question regarding whether the parcel was subdivided properly, or whether a permit has been issued or needs to be issued now for sanitary facilities?
The answers depend entirely on the local ordinances. The local ordinances have to say in what order permits are issued and whether one permit can be held up until another permit is issued, and whether one permit is conditional on issuance of another permit.

What if the use is one that is exempt from a permit requirement?
Many ordinances exempt minor improvements and farm buildings. The use still has to comply with the use and dimensional rules even if there is no need to take out a permit. In this instance, only a Zoning Permit is required, issued by the Zoning Administrator.

For how long is a permit good?
This is set by local ordinance. If the ordinance does not say anything, the general rule is that the permit is good for as long as the ordinance remains unchanged as to the intended project. If the ordinance changes and the project has not begun or is not so far along that it is nearly impossible to change, the applicant should reapply for a new or amended permit reflecting the new rules that apply to the project.

 

 

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