City Code § 154.164(D) To obtain a non-use or dimensional variance, the applicant must show practical difficulty by demonstrating ...

(1) That there are exceptional or extraordinary circumstances or conditions applying to the property in question ... that do not apply generally to other properties ...

MCL 125.3604(7) If there are practical difficulties for nonuse variances ... , the zoning board of appeals may grant a variance ...

Cause for variance not found, Building Official issues permits and certificates

Statutory language is unambiguous

City Code § 154.169(D) Decisions conditionally approving or rejecting the site plans shall be based upon standards and requirements contained in the Zoning Ordinances.

MCL 125.3501(4) A decision rejecting, approving, or conditionally approving a site plan shall be based upon requirements and standards contained in the zoning ordinance ...

 

        Plan specifications not found in the zoning ordinance, Planning Commission approves plans

Statutory language is unambiguous

City Code § 154.164(A) Applications for a variance shall be submitted and served in the same manner as provided for appeals ...

City Code § 154.163(A) Appeals The Zoning Board of Appeals shall have the power to hear and decide upon appeals ...

(1) The secretary or designee of the Board shall serve a copy of the appeal to the city official, board or commission whose decision is being appealed.

City Code § 154.169(A) ... the Planning Commission is empowered to review site plans ...

Applicant request for variance not appeal of a decision, Zoning Board of Appeals conducts hearings (SPR-04-08 excepted)

18 above 10 to consider

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MCL 750.505; MSA 28.773 states:

 

Any person who shall commit any indictable offense at the common law, for the punishment of which no provision is expressly made by any statute of this state, shall be guilty of a felony, punishable by imprisonment in the state prison not more than 5 years or by a fine of not more than $10,000.00, or both in the discretion of the court.

 

Perkins & Boyce, Criminal Law (3d ed) , p 543. An officer could be convicted of misconduct in office (1) for committing any act which is itself wrongful, malfeasance, (2) for committing a lawful act in a wrongful manner, misfeasance, or (3) for failing to perform any act that the duties of the office require of the officer, nonfeasance. Perkins, p 540.

 

The criminal charge of misconduct in office occurs when duties imposed by law have not been properly and faithfully discharged, and is established by showing the willful violation of a prescribed duty.[Am Jur 2d, Public Officers and Employees, § 412.] … there must be established a “breach of a positive statutory duty” or “the performance of a discretionary act with an improper or corrupt motive.” Am Jur 2d, supra, § 409. People v Coutu (On Remand), 235 Mich App 695, 706-707; 599 NW2d 556 (1999), "Pursuant to the definitions, a corrupt intent can be shown where there is intentional or purposeful misbehavior or wrongful conduct pertaining to the requirements and duties of office by an officer. See also Perkins & Boyce, supra at 542 (“It is corrupt for an officer purposely to violate the duties of his office.”). The corrupt intent needed to prove misconduct of office does not necessarily require an intent for one to profit for oneself. Thomas, supra at 461, n 6."

 

In order to be considered a public office, five elements are required:

 

(1) The position must be created by the Constitution or by the legislature or created by a municipality or other body through authority conferred by the legislature;

 

(2) The position must possess a delegation of a portion of the sovereign power of government, to be exercised for the benefit of the public;

 

(3) The powers conferred, and the duties to be discharged, must be defined, directly or impliedly, by the legislature or through legislative authority;

 

(4) The duties must be performed independently and without control of a superior power other than the law, unless they be those of an inferior or subordinate office, created or authorized by the legislature, and by it placed under the general control of a superior officer or body;

 

(5) The position must have some permanency and continuity, and not be only temporary or occasional.

 

Oath and bond requirements are also of assistance in determining whether a position is a public office.

MCL 767.24 Indictments; finding and filing; limitation

(5) All other indictments may be found and filed within 6 years after the offense is committed.

Public Officers - position titles for purposes of misconduct in office charges may include

CITY COMMISSION; CITY ATTORNEY, PLANNING COMMISSION, ZONING BOARD OF APPEALS

CITY MANAGER

COMMUNITY SERVICES and ECONOMIC DEVELOPMENT - DIRECTOR

BUILDING SAFETY & CODE ENFORCEMENT - BUILDING OFFICIAL

PLANNING & COMMUNITY DEVELOPMENT - DIRECTOR

when the charges arise from the performance of their duties or while acting under color of their office. Inherent duties of the position in addition to the written job description and authorizing statute are considered.

Public Duty - examples include

    Common Law

Duty of Care - an obligation to dutifully and diligently perform the functions of a position.

Duty of Loyalty - those who operate as agents exercising power on behalf of others must protect the interests of those persons served above all others, including themselves.

Duty of Candor - full and open disclosure of all facts and circumstances which may impact deliberations on matters under consideration.

 

    Statutory

    Mt. Pleasant, MI Ordinance 802

Charter Article I Sec. 4. PROVIDE FOR PUBLIC PEACE,  HEALTH, SAFETY.

The City shall provide for the public peace and health and for the safety of persons of property within the City.

 

Charter Article II Sec. 8. OATH OF OFFICE.

 Every elected and appointed Commissioner, before commencing official duties, shall take and subscribe to the following oath:

     “I do solemnly swear (affirm) that I will support the constitutions of the United States of America and the State of Michigan and the Charter of the City of Mount Pleasant, and that I will faithfully discharge the duties of this office on behalf of all the citizens of the City to the best of my ability.”

 

Charter Article III Sec. 7. CITY MANAGER - DUTIES

The City Manager shall be the chief administrative official of the City, and shall be responsible to the Commission for the administration of all City affairs placed in his charge by this Charter. The City Manager shall have the following powers and duties:

(D) He-she shall see that all laws, provisions of this Charter, and acts of the Commission, subject to enforcement by him-her or by officials subject to his-her direction and supervision, are faithfully executed.

 

Charter Article III Sec. 9. CITY ATTORNEY - APPOINTMENT,  DUTIES.

The City Attorney shall be appointed by a majority vote of the entire Commission for an indefinite term. He-she shall be the legal advisor for the city and for all City officials and departments in all matters relating to their official duties, and shall perform such other duties as the Commission may require. He-she may be removed by a majority vote of the entire Commission.

 

Title XV Chapter 150 § 150.17  ENFORCEMENT.

The Building Official is hereby authorized and directed to enforce the provisions of the Code.

 

Title XV Chapter 154 § 154.160  ENFORCEMENT BY BUILDING OFFICIAL.

The Building Official shall be appointed by the City Manager. It shall be the duty of the Building Official to enforce this chapter and the requirements of the Planning Commission authorized by this chapter and the provisions of any approved plan or site plan.

 

    Inherent

    Mt. Pleasant, MI

BUILDING SAFETY & CODE ENFORCEMENT - BUILDING OFFICIAL, service as secretary to the Zoning Board of Appeals

PLANNING & COMMUNITY DEVELOPMENT - DIRECTOR, service as secretary to the Planning Commission

 

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