AN ACT

TO AMEND SECTION 1 OF ACT NO. 528 OF THE 1959 REGULAR SESSION OF THE LEGISLATURE OF ALABAMA (GENERAL ACTS OF ALABAMA OF 1959, P. 1302-1304), PROVIDING FOR THE APPOINTMENT OF A ZONING BOARD OF ADJUSTMENT IN ANY CITY HAVING A POPULATION OF THREE HUNDRED THOUSAND INHABITANTS OR MORE ACCORDING TO THE LAST OR ANY SUBSEQUENT FEDERAL CENSUS.

Be It Enacted by the Legislature of Alabama:

Section 1.

That Section 1 of Act No. 528 of the 1959 Regular Session of the Legislature of Alabama (General Acts of Alabama of 1959, p. 1302-1304) be and the same is hereby amended as follows:

Section 1. The governing body of any city which may now or hereafter have a population of 300,000 inhabitants or more, according to the last or any subsequent federal census and which may now or hereafter have in force and effect a comprehensive zoning ordinance shall provide for the appointment of a Zoning Board of Adjustment and in the zoning regulations and restrictions adopted by such city pursuant of the authority of the laws of this state, provided that such Board of Adjustment shall, in appropriate cases and subject to appropriate conditions and safeguards, make special exceptions to the terms of the zoning ordinance of such city in harmony with its general purpose and intent, and in accordance with general or specific rules therein contained. Such Board of Adjustment shall consist of seven members, and each shall hold office for a term of seven years or until such time as his successor shall be appointed and qualify, except that the respective terms of the seven members first appointed shall be one, two, three, four, five, six and seven years; provided, members may after a public hearing be removed for cause by the governing body of the city. Such Board of Adjustment shall adopt rules in accordance with the provisions of the zoning ordinance adopted by such city. Meetings of the board shall be held at the call of the chairman and at such other times as the board may determine. Such chairman, or in his absence the acting-chairman, may administer oaths and compel the attendance of witnesses. All meetings of the board shall be open to the public. Such board shall keep minutes of its proceedings showing the vote of each member upon each question, or if absent or failing to vote, indicating such fact, and shall keep records of its examinations and other official actions, all of which shall be immediately filed in the office of the board and shall be a public record. Appeals to the Zoning Board of Adjustment may be taken by any person aggrieved, or by any officer, department, board or bureau of the municipality affected by any decision of the administrative officer or such other officer as is charged with the enforcement of the zoning ordinance of the city. Such appeal shall be taken within a reasonable time as provided by the rules of the board by filing with the officer from whom the appeal is taken and with the Zoning Board of Adjustment of notice of appeal specifying the ground thereof. The officer from whom the appeal is taken shall forthwith transmit to the board all the papers constituting the record upon which the action appealed was taken. An appeal stays all proceedings in furtherance of the action appealed from unless the officer from whom the appeal is taken certifies to the Zoning Board of Adjustment after the notice of appeal shall have been filed with him that by reason of facts stated in the certificate a stay would in his opinion cause imminent peril to life or property. In such cases proceedings shall not be stayed otherwise than by restraining order which may be granted by the Zoning Board of Adjustment or by a court of record on application or notice to the officer from whom the appeal is taken and on due cause shown. The Zoning Board of Adjustment shall fix a reasonable time for the hearing of the appeal, give public notice thereof, as well as due notice to the parties in interest, and decide the same within a reasonable time. Upon the hearing any party may appear in person or by agent or by attorney. The Zoning Board of Adjustment shall have the following powers: to hear and decide appeals where it is alleged there is error in any order, requirement, decision or determination made by an administrative official in the enforcement of the zoning ordinance of the city upon which such board is required to pass under such ordinance. To authorize upon appeal in specific cases such variance from the terms of the zoning ordinance of the city as will not be contrary to the public interest, where owing to special conditions a literal enforcement of the provisions of the ordinance will result in unnecessary hardship, and so that the spirit of the ordinance shall be observed and substantial justice is done, provided, however, that no variance shall be granted under the provisions of this act to allow a structure of use in a district restricted against such structure or use, except as specifically provided for by the zoning ordinance. In exercising the above mentioned powers, such board may, in conformity with the provisions of this act, reverse or affirm wholly or partly or may modify the order, requirement, decision or determination appealed from and make such order, requirement, decision or determination as ought to be made, and to that end shall have all the powers of the office from whom the appeal is taken. The concurring vote of two-thirds of the Board members present shall be necessary to reverse any order, requirement, decision or determination of any such administrative official, or such other officer as is charged with the enforcement of the zoning ordinance of the city, or to decide in favor of the applicant or any matter upon which it is required to pass under any ordinance of the city or to effect any variation in any such ordinance. A quorum at any meeting shall consist of four members. The Zoning Board of Adjustment shall not be required to return the original papers acted upon it, but it shall be sufficient to return certified or sworn copies thereof or of such portion thereof as may be called for by such writ. The return shall concisely set forth such other facts as may be pertinent and material to show the grounds of the decision appealed from and shall be verified."

Section 2. This act shall become effective immediately upon its passage and approval by the governor or upon its otherwise becoming a law.

Approved August 12, 1969

Time: 5:09 p.m.

I.

Authority. The Zoning Board of Adjustment is established in accordance with and as authorized by Act No. 326 of the 1969 regular session of the Legislature of Alabama. The Board shall be governed by the Rules of Procedure and the Zoning Ordinance of the City of Birmingham.

II.

Membership.

Composition. The membership of the Board shall consist of seven members appointed by the City Council. Membership of the Board shall consist of one State of Alabama licensed real estate salesperson or broker, one State of Alabama licensed and registered architect; one State of Alabama licensed building contractor and four nonaffiliated citizens who represent diverse segments of the population, and all seven of which must be residents and citizens of the City of Birmingham.

Terms of Membership. Members appointed by the Council shall serve overlapping terms of seven years.

How Replaced. Members may, after a public hearing, be removed for cause by the City Council. Replacement for any member of the board whose term of office is terminated, either by resignation or removal, shall be by appointment of the City Council.

III.

Officers.

Chairman. A Chairman shall be elected by the members of the Board. The Chairman shall call all meetings to order and shall declare all adjournments. He shall rule on all points of order and procedure unless he shall be overruled by a majority of the Board present. His term as Chairman shall be for one year, or until such time thereafter, as a successor shall be duly elected. Any chairman may be reelected to succeed himself in the office of the Chairman.

Vice-Chairman. A Vice-Chairman shall be elected in the same manner as the Chairman for a term of one year, or until such time thereafter as his successor shall be elected, and he shall serve in the absence of the Chairman with the same powers and duties herein delegated the Chairman.

IV.

Function. The Zoning Board of Adjustment shall hear and consider only those applications filed in the Department of Planning, Engineering and Permits which have been approved by the Director or his designated subordinate, which applications shall request the Board to render a decision in one or more of the following instances:

1.

To hear an appeal from the decision of the Director of the Department of Planning, Engineering and Permits (Article VIII, Section 5.1).

2.

To grant variances in specific cases from the strict application of the terms of the Ordinance under certain conditions (Article VIII, Section 5.2).

3.

To modify the application of the terms of the Ordinance in certain cases (Article VIII, Section 5.3).

4.

To grant exceptions under reasonable conditions to the terms of the ordinance for the establishment of certain specific uses where they are ordinarily prohibited (Section VIII, Section 5.4).

V.

Procedure for filing. All applications for hearings before the Board must be filled in the office of the Department of Planning, Engineering and Permits of the City of Birmingham upon forms furnished by the Department for that purpose. Before any action will be taken on any application by the Board, the applicant shall have deposited with the City of Birmingham an amount determined by the following fee schedule:

Such fee is required to cover the approximate cost of processing the application. The Board will not hear any application unless all information called for by the application form shall have been furnished.

The Board will not hear any application unless same had been properly filed at least two weeks prior to the meeting date of the Board on which the application is proposed to [be] heard.

Notices. Notices shall be sent to all immediate adjacent property owners including properties directly across streets or alleys from the subject property at least six days prior to the date of the hearing. Such notices shall state the description of the parcel of land in question, what request has been made concerning it, and the time and place of the hearing.

VI.

Appeals from decisions of enforcing officer. Persons appealing decisions of the officer charged with enforcement of the Zoning Ordinance shall have 15 days from the date of such decision to submit a letter or other writing to the Department of Planning, Engineering and Permits advising of and indicating the reasons for appealing such decision. During this fifteen day period, the appellant shall file an application with the Planning and Development Regulation Division of the Department of Planning, Engineering and Permits in order to officially enter the appeal case on the docket of the next regularly scheduled Board meeting. The enforcing officer shall make his decision in writing in which he shall indicate the time in which an appeal to the Board shall be filed. A copy of this written decision shall be sent to the person in charge of the Planning and Development Regulation Division of the Department of Planning, Engineering and Permits. A copy of such written decision shall also be sent to any party or group representative who has made known to the enforcing officer of this or her opposition to the decision. Appeals to the Zoning Board of Adjustment may be taken by any person aggrieved, or by an officer, department, board or bureau of the City of Birmingham affected by a decision of the officer charged with enforcement of the Zoning Ordinance. Appeals from a person who is not an adjoining property owner of the property affected by the decision of the enforcing officer, or who is not a representative of an office, department, board, or bureau of the City of Birmingham shall indicate how he is "aggrieved." In such cases, the Board shall first vote to determine if the person is aggrieved. If the board's vote is in the affirmative, it shall proceed with the hearing of the appeal.

VII.

Hearings. Any interested party may appear before any hearing of the Board, either in person or by his agent or attorney. Each application will be heard in substantially the following manner:

a.

The Chairman, or such member of the Board as he may direct, shall present a preliminary statement of the matters to be considered in the application.

b.

The applicant and the parties opposed to the application shall be permitted to present arguments to the Board, and may offer supporting testimony to their position, subject to whatever reasonable limitations the Chairman may wish to impose thereon.

c.

The Board will endeavor to consider only such argument and testimony as is pertinent to the application but is not limited to consideration of only such evidence as would be admissible in a court of law.

d.

If the Board has not already viewed the premises described in the application, it may continue its hearing on the application until it has viewed the premises.

e.

The Board shall render its decision on any application heard by the Board not later than 30 days from the date of the hearing.

f.

The Board may grant a continuance of any hearing for a period not in excess of 60 days.

g.

The Board may grant more than one continuance of any hearing but shall not continue any hearing for an aggregate of more than 120 days.

f.[h.]

The concurring vote of two-thirds of the Board members present shall be necessary to reverse any order, requirement, decision or determination of the Director of the Department of Planning, Engineering and Permits; or to decide in favor of the applicant on any matter concerning a variance, special exception or modification.

VIII.

Application for rehearing. All applications for a rehearing shall be made in the same manner as are applications for original hearings. Any application for rehearing will be denied by the Board if it appears that there has been no substantial change in facts or physical conditions since the original hearing.

IX.

Meetings. Regular meetings of the Board will be held at 2:00 p.m. on the second and fourth Thursdays of each calendar month, which meetings will be held in the City Council Chambers of City Hall; provided, however, the Chairman may adjourn the meeting to another room in the City Hall when he deems it expedient and in the best interests of the parties concerned.

Conduct of Meetings. All meetings of the Board will be open to the public. The order of business at each meeting will be substantially as follows:

a.

Roll call.

b.

Approval of minutes of the previous meeting.

c.

New business, including the hearing of pending applications.

d.

Unfinished business.

e.

Adjournment of meeting.

Any Board member who is financially interested in a decision of the Board on any application before the Board including but not limited to ownership of property in project, partnership in project or representation as client of project will rescue himself during the hearing on said application and will neither question witnesses nor case a vote.

Quorum. A quorum at any meeting of the Board shall consist of four Board members. When Less than a quorum of the Board is present for any meeting, those members present shall, by majority vote, set a new date for the meeting not later than the next regular meeting date of the board, or, by majority vote, may continue all applications before the Board to the next regular meeting of the Board.

X.

Minutes. The Board shall cause minutes of each of its meetings to be kept in the Planning And Development Regulation Division of the Department of Planning, Engineering and Permits, which minutes shall be available and open to inspection by the public. The minutes shall show the action taken by the Board on each application heard by it, together with the votes of each member of the Board upon each application. The minutes shall further show the names of any absent members of the Board, and the name of any member rescuing himself in any matter before the Board.

XI.

Amendments. These rules may be amended from time to time by the Zoning Board Adjustment, by resolution duly adopted at any of its regular meetings, when so authorized by the vote of at least four of its members.

The Zoning Ordinance was adopted as part of a program for developing the Birmingham Comprehensive Plan; zoning is one of the tools to carry out this plan. The Zoning Advisory Committee is organized to advise the City Council directly on all applications for changes in the Zoning Ordinance, and its activity shall be confined to considering such changes. The Committee speaks for the Birmingham Planning Commission with full authority - there shall be no appeals from its decision to the full Planning Commission. All map change applications will be compared to all parts of the Birmingham Comprehensive Plan in effect at that time and any other plan, study, or program of improvement in effect or having official status or endorsement. Each application will be investigated by the staff of the Department of Planning, Engineering and Permits and a report submitted thereon including, but not limited to, conclusions as to relation to the Comprehensive Plan and a recommendation.

I.

Authority. The Zoning Advisory Committee of the Birmingham Planning Commission is established under authority granted by the commission of the City of Birmingham under Ordinance No. 1800-F, as amended by Ordinance No. 1817-F. The Committee shall be governed by these Rules of Procedure and the Zoning Ordinance of the City of Birmingham.

II.

Membership.

Composition. The membership of the Committee shall be composed of seven members elected by the Birmingham Planning Commission from its appointed membership.

Terms of Membership. Members duly elected to membership on the Zoning Advisory Committee shall continue to serve on the Committee as long as they are legally serving as members of the Birmingham Planning Commission or until replaced by election of the Planning Commission.

How Replaced. Replacement for any member of the Committee whose term of office on the Birmingham Planning Commission is terminated shall be by election from the appointed membership of the Planning Commission.

III.

Officers.

Chairman. A Chairman shall be elected by the members of the Committee. His term shall be for one year beginning with the date of election, and he shall be eligible for reelection. The Chairman shall decide upon all points of order and procedure, subject to these Rules of Procedure unless directed otherwise by a majority of the Committee in session at the time. The Chairman may appoint any subcommittee deemed necessary to investigate any matter before the Committee.

Vice-Chairman. A Vice-Chairman shall be elected by the Committee from among its regular members in the same manner and for the same term as the Chairman. He shall serve as acting Chairman in the absence of the Chairman, and at such times he shall have the same powers and duties as the Chairman.

Secretary. The Director of Planning, Engineering and Permits or his designated subordinate shall perform the administrative and clerical functions of the Committee. He shall keep all records, and handle all correspondence and notices for the Committee.

IV.

Applications.

Procedures for Filing. The Committee shall hear all requests for change in the Zoning Ordinance of the City of Birmingham and shall transmit their recommendations to the City Council. The applicant must file his application for a hearing in the offices of the Urban Planning Department of the City of Birmingham. All applications shall be made upon the form furnished for that purpose and all information shall be complete and fees paid before the application shall be considered as having been filed. Before any action shall be taken as provided in these Rules of Procedure, the applicant petitioning for amendment shall deposit with the City of Birmingham the sum of $500.00 to cover the approximate cost of handling his application. Applications must be filed by 4:30 p.m., two weeks prior to the date of hearing. Hearings will be held at 7:00 p.m. on the first and third Tuesday of each month. An application for a rehearing may be made in the same manner as provided for in an original hearing. The application for rehearing shall be denied by the Committee if from the record it shall appear that there has been no substantial change in facts, evidence, or conditions.

Notices. Notices shall be sent to all property owners within a radius of 500 feet from the subject property at least six days prior to the date of the hearing. Such notices shall state the description of the parcel of land in question, what request has been made concerning it, and the time and place of the hearing.

Decisions. Upon agreement of a majority of the membership, decisions of the Committee may be made in executive session not more than 15 days from the time of the hearing or 30 days from the date of receipt of the application. The final decision of the Committee shall be shown in the record of the case as entered in the minutes of the Committee and signed by the Director of Planning, Engineering and Permits or his designated subordinate. Such record shall show the reasons for the determination. The affirmative or concurring vote of the majority of members present shall be necessary to recommended in favor of the applicant or to decide in favor of any matter before the Committee.

V.

Meetings.

Meeting Place. Regular meetings of the Committee shall be held in the Council Chambers of the City Hall, provided that if the Committee Chairman so directs, meetings may be held at any other place in the City.

Special Meetings. Special meetings of the Committee may be called at any time by the Chairman. At least 48 hour's written or oral notice of the time and place of a special meeting shall be given to each member of the Committee.

Cancellation Meetings. Whenever there are no applications, public hearings, or other business of the Committee, the Chairman may dispense with a regular meeting by giving written or oral notice to all members no less than 48 hours prior to the time set for the meeting.

Conduct of Meetings. All meetings shall be open to the public. The order of business at regular meetings shall be as follows:

a.

Roll call.

b.

Approval of minutes of previous meeting.

c.

Hearing of cases.

d.

Unfinished business.

e.

New business.

Presentation or Hearings of Proposals. The following shall be the order of procedure for public hearings concerning zoning matters:

a.

The Chairman, or such person as he shall direct, shall give a preliminary statement of the case.

b.

The applicant shall present the argument in support of his application.

c.

Persons opposed to the application shall present the argument against the application.

d.

Both sides will be permitted to present rebuttals to opposing testimony.

e.

The Chairman shall summarize the evidence which has been presented, giving the parties opportunity to make objections and corrections.

Witnesses may be called and factual evidence may be submitted, but the Committee shall not be limited to consideration of such evidence as would be admissible in a court of law. The Committee may view the premises before arriving at a decision. Disqualification from Voting: No Committee member shall take part in the hearing or decision of any case in which he shall be personally or financially interested. No Committee member shall vote on any matter concerning a public hearing unless he shall have attended the public hearing.

VI.

Quorum. A quorum shall consist of four members of the Committee. When less than four members are present for any hearing, then those that are present shall agree to and announce the time and place for a continued hearing.

VII.

Minutes. The minutes of every meeting of the Committee shall be kept in a permanent file in the offices of the Department of Planning, Engineering and Permits and shall be a public record. These shall show the record of every action taken by the Committee and the reason therefore, every resolution or upon any resolution or upon the final determination of any question, indicating the names of members absent or abstaining from voting and for what reasons.

FILING PROCEDURE AND FEES

I.

Zoning Advisory Committee.

1.

Documents.

A.

Rezoning application.

B.

Site Development plan (4 copies).

1.

Location and height of structures.

2.

Use of structures.

3.

Yard dimensions.

4.

Parking layout.

5.

Streets and drives.

6.

Site beautification.

7.

Signage.

2.

Time. Time required for a rezoning case is approximately eight weeks, including hearings and actions both by the Zoning Advisory Committee and the City Council.

3.

Third parties. The applicant should meet with the appropriate Neighborhood Association prior to the hearing of the case by the City Council.

4.

Notification. The City is required to notify owners of property within 500 feet of any rezoning application. Such notice is mailed out for each meeting. The City is also required to advertise rezoning cases in a newspaper of general circulation. In addition, all applicable neighborhood association officers are notified.

5.

Public Hearings. The Zoning Advisory Committee meets every first and third Tuesday. All rezoning application documents must be filed two weeks before each meeting. After the Zoning Advisory Committee hears a rezoning case and makes a recommendation, the City Council will schedule a public hearing to consider final action on the rezoning. The city Council hearing is normally four to five weeks following Zoning Advisory Committee Action.

6.

Fees. $500.00 filing fee

II.

Zoning Board of Adjustment.

1.

Documents.

A.

Application.

B.

Survey map of the property.

C.

Site development plan (if construction is involved).

1.

Buildings and structures.

2.

Yard dimensions.

3.

Parking areas.

4.

Driveways and walks.

5.

Landscaping.

6.

Freestanding signs.

7.

Other signage.

2.

Time. Time required for a Zoning Board of Adjustment case is approximately two weeks.

3.

Third Parties. All applicants who have projects that may have neighborhood wide impact are urged to meet with the appropriate Neighborhood Association prior to the initial Board hearing.

4.

Notification. The City is required to notify all adjacent property owners of all ZBA cases. In addition, all applicable neighborhood association officers are notified.

5.

Public Hearings. The Zoning Board of Adjustment meets every second and fourth Thursday. All documents must be filed two weeks before the meeting.

6.

Fees.

III.

Subdivision Committee.

1.

Documents.

A.

Subdivision application.

B.

Maps.

1.

Original plat and five copies.

2.

Vicinity map (five copies).

2.

Time. Time required for a Subdivision case is about two weeks.

3.

Third Parties. The applicant is required to supply, upon filing, a listing of all adjacent property owners; together with the names and addresses of each. Where the case may have significant neighborhood-wide impact, the applicant is encouraged to meet with the affected Neighborhood Association.

4.

Notification. The City is required to notify owners of adjacent property by certified mail. Such notice is mailed out for each meeting.

5.

Public Hearing. The Subdivision Committee meets every second and fourth Wednesday. All documents must be filed two weeks before the meeting.

6.

Fees.

IV.

Vacation Procedure.

1.

Application is filed with the Subdivision Committee of the Birmingham Planning Commission, 5th Floor, City Hall. Applicant is required to submit a Declaration of Vacation which must be signed by all persons who own land that abuts or borders the alley or street to be vacated. A sample Declaration of Vacation from is available for applicant to follow.

2.

Subdivision Committee Public Hearing. Application will be heard by the Subdivision Committee which will recommend or not recommend the request to the City Council. It is also important that the applicant contact the Traffic Engineering Department regarding the removal of existing street lights and wooden poles along the right-of-way. If removal is necessary, the applicant is required to pay the cost, which is separate from the cost of the vacation itself.

3.

City Council Public Hearing. After the Subdivision Committee has heard the case, the Planning, Engineering and Permits Staff will arrange to set it for a Public Hearing before the full City Council. Notice of Vacation must be advertised by the city in the newspaper five days prior to the Council Meeting. The Council will vote to approve or not approve the vacation request at the conclusion of the public hearing. If the vacation is approved, the applicant will be required to pay a right of way fee for the value of the land being vacated, unless said fee is waived by the City Council. (See City Ordinance No. 93-239 for fee Schedule.)

4.

Resurvey of the Vacation of Right-of-Way into Abutting Property. Once the Council has approved the Vacation, the applicant must then resurvey the vacated area into the abutting property. This requires the applicant to file a case with the Subdivision Committee again. Six copies of a final plat drawn by a Registered Civil Engineer as well as a vicinity map are required in filing the resurvey case. In order to save time, the applicant may wish to complete this step when the vacation is filed (see Step #1). The Subdivision Committee can conditionally approve the resurvey at this time, subject to the Council's approving the vacation.

5.

Recording of Final Plat and Vacation Documents. Once the resurvey has been approved and the applicant has met all conditions set forth by the Subdivision Committee for the resurvey, including payment of the right-of-way fee, the Final Plat and vacation documents will be recorded by the city in the Office of the Judge of Probate. After recording, the applicant will be able to obtain a building permit to use the vacated right-of-way.