HB-5926, As Passed House, December 2, 2010
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.