January 12, 2005, Introduced by Senator CLARK-COLEMAN and referred to the Committee on Local, Urban and State Affairs.
A bill to amend 1921 PA 207, entitled
"City and village zoning act,"
by amending sections 3b and 5 (MCL 125.583b and 125.585), section
3b as amended by 1993 PA 210 and section 5 as amended by 2000 PA
20.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 3b. (1) As used in this section, "state licensed
residential facility" means a structure constructed for residential
purposes that is licensed by the state pursuant to the adult foster
care
facility licensing act, Act No. 218 of the Public Acts of
1979,
being sections 400.701 to 400.737 of the Michigan Compiled
Laws,
or Act No. 116 of the Public Acts of 1973, as amended, being
sections
722.111 to 722.128 of the Michigan Compiled Laws 1979
PA
218, MCL 400.701 to 400.737, or 1973 PA 116, MCL 722.111 to
722.128, that provides resident services or care for 6 or fewer
persons under 24-hour supervision for persons in need of that
supervision or care.
(2) In order to implement the policy of this state that
persons in need of community residential care shall not be excluded
by zoning from the benefits of normal residential surroundings, a
state licensed residential facility providing supervision or care,
or both, to 6 or less persons shall be considered a residential use
of property for the purposes of zoning and a permitted use in all
residential zones, including those zoned for single family
dwellings, and shall not be subject to a special use or conditional
use permit or procedure different from those required for other
dwellings of similar density in the same zone.
(3) This section does not apply to adult foster care
facilities licensed by a state agency for care and treatment of
persons released from or assigned to adult correctional
institutions.
(4) At least 45 days before licensing a residential facility,
the state licensing agency shall notify the council of the city or
village or the designated agency of the city or village where the
proposed facility is to be located to review the number of existing
or proposed similar state licensed residential facilities whose
property lines are within a 1,500-foot radius of the property lines
of the proposed facility. The council of a city or village or an
agency of the city or village to which the authority is delegated,
when a proposed facility is to be located within the city or
village, shall give appropriate notification of the proposal to
license the facility to those residents whose property lines are
within a 1,500-foot radius of the property lines of the proposed
facility. A state licensing agency shall not license a proposed
residential facility if another state licensed residential facility
exists within the 1,500-foot radius of the proposed location,
unless permitted by local zoning ordinances, or if the issuance of
the license would substantially contribute to an excessive
concentration of state licensed residential facilities within the
city
or village. In a city with a population of 1,000,000 750,000
or more a state licensing agency shall not license a proposed
residential facility if another state licensed residential facility
exists within a 3,000-foot radius of the proposed location, unless
permitted
by local zoning ordinances. This subsection shall does
not apply to state licensed residential facilities caring for 4 or
fewer minors.
(5) This section does not apply to a state licensed
residential facility licensed before March 31, 1977, or to a
residential facility that was in the process of being developed and
licensed before March 31, 1977 if approval was granted by the
appropriate local governing body before that date.
Sec. 5. (1) The legislative body of a city or village may act
as
a board of appeals upon on questions arising under a zoning
ordinance. The legislative body may establish rules to govern its
procedure as a board of appeals. In the alternative, the
legislative body may appoint a board of appeals consisting of not
less than 5 members, each to be appointed for a term of 3 years.
Appointments of the first members shall be for terms of 1, 2, and 3
years, respectively, so as nearly as possible to provide for the
subsequent appointment of an equal number of members each year.
After the initial appointments, each member shall hold office for
the full 3-year term.
(2) Under procedures specified in the zoning ordinance, the
legislative body of a city or village may appoint not more than 2
alternate members for the same term as regular members of the board
of appeals. The alternate members may be called on a rotating basis
as specified in the zoning ordinance to sit as regular members of
the board of appeals in the absence of a regular member. An
alternate member may also be called to serve in the place of a
regular member for the purpose of reaching a decision on a case in
which the regular member has abstained for reasons of conflict of
interest. The alternate member called shall serve in the case until
a final decision is made. The alternate member has the same voting
rights as a regular member of the board of appeals.
(3) The board of appeals shall hear and decide appeals from
and review any order, requirements, decision, or determination made
by an administrative official or body charged with the enforcement
of an ordinance adopted under this act. The board of appeals shall
also hear and decide matters referred to the board or upon which
the board is required to pass under an ordinance adopted under this
act. For special land use and planned unit development decisions,
an appeal may be taken to the board of appeals only if provided for
in the zoning ordinance.
(4)
In a city or village having a population of less than
1,000,000
750,000, the concurring vote
of a majority of the
members of the board is necessary to reverse an order, requirement,
decision, or determination of an administrative official or body,
or to decide in favor of the applicant a matter upon which the
board is required to pass under an ordinance, or to effect a
variation in an ordinance except that a concurring vote of 2/3 of
the members of the board is necessary to grant a variance from uses
of
land permitted in an ordinance. In a city having a population of
1,000,000
750,000 or more, the
concurring vote of 2/3 of the
members of the board is necessary to reverse an order, requirement,
decision, or determination of an administrative official or body,
or to decide in favor of the applicant a matter upon which the
board is required to pass under an ordinance, or to grant a
variance in an ordinance.
(5) An appeal may be taken by a person aggrieved, or by an
officer, department, board, or bureau of the city or village. In
addition, a variance in an ordinance may be applied for and granted
pursuant to section 4 of the uniform condemnation procedures act,
1980 PA 87, MCL 213.54, and this act. A board of rules or board of
building appeals of a city or village may be enlarged to consist of
not less than 5 members, and these may be appointed as the board of
appeals as provided in this section.
(6) An appeal under this section shall be taken, within a time
prescribed by the board of appeals by general rule, by filing, with
the officer or body from whom the appeal is taken and with the
board of appeals, a notice of appeal specifying the grounds for the
appeal. The officer or body from whom the appeal is taken shall
immediately transmit to the board all the papers constituting the
record upon which the action appealed from was taken.
(7) An appeal under this section stays all proceedings in
furtherance of the action appealed from unless the officer or body
from whom the appeal is taken certifies to the board of appeals,
after the notice of appeal is filed, that by reason of facts stated
in the certificate, a stay would in the opinion of the officer or
body cause imminent peril to life or property. If such a
certification is filed, the proceedings shall only be stayed by a
restraining order. A restraining order may be granted by the board
of appeals or by the circuit court, on application, on notice to
the officer or body from whom the appeal is taken and on due cause
shown.
(8) The board of appeals shall fix a reasonable time for the
hearing of the appeal and give notice of the appeal to the persons
to whom real property within 300 feet of the premises in question
is assessed, and to the occupants of single and 2-family dwellings
within 300 feet. The notice shall be delivered personally or by
mail addressed to the respective owners and tenants at the address
given in the last assessment roll. If a tenant's name is not known,
the term "occupant" may be used. Upon the hearing, a party may
appear in person or by agent or by attorney.
(9) The board of appeals shall decide the appeal within a
reasonable time. The board of appeals may reverse or affirm, wholly
or partly, or may modify the order, requirement, decision, or
determination appealed from and shall make an order, requirement,
decision, or determination as in the board's opinion ought to be
made in the premises, and to that end shall have all the powers of
the officer or body from whom the appeal is taken. If there are
practical difficulties or unnecessary hardship in carrying out the
strict letter of the ordinance, the board of appeals may in passing
upon appeals grant a variance in any of its rules or provisions
relating to the construction, or structural changes in, equipment,
or alteration of buildings or structures, or the use of land,
buildings, or structures, so that the spirit of the ordinance shall
be observed, public safety secured, and substantial justice done.
(10) The board of appeals may impose conditions upon an
affirmative decision, as provided in section 4c(2). The legislative
body of a city or village may authorize the remuneration of the
members of the board for attendance at each meeting.
(11) The decision of the board of appeals is final. However, a
person having an interest affected by the zoning ordinance may
appeal to the circuit court. Upon appeal, the circuit court shall
review the record and decision of the board of appeals to ensure
that the decision meets all of the following requirements:
(a) Complies with the constitution and laws of this 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 board of appeals.
(12) If the court finds the record of the board of appeals
inadequate to make the review required by this section, or that
additional material evidence exists that with good reason was not
presented to the board of appeals, the court shall order further
proceedings before the board of appeals on conditions that the
court considers proper. The 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.
(13) As a result of the review required by this section, the
court may affirm, reverse, or modify the decision of the board of
appeals.