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Birmingham City Zoning Code

ARTICLE 8

Enforcement and Penalties

8.01 The Board of Zoning Appeals

  • Establish: There shall be established and appointed by the City Commission, in accordance with Section 5, Act No. 207 of the Public Acts of Michigan of 1921 (MCL 125.585, MSA 5.2935), as amended, a Board of Zoning Appeals consisting of seven members each to be appointed for a term of three years.
  • Alternate Members: The City Commission may also appoint not more than two alternate members for the same term as regular members of the Board of Zoning Appeals. The alternate member may be called on a rotating basis to sit as a regular member of the Board of Zoning Appeals in the absence of a regular member. An alternate member may also be called to service 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 having been appointed shall serve in the case until a final decision has been made. The alternate member shall have the same voting rights as a regular member of the Board of Zoning Appeals.
  • Procedure: Meetings of the Board of Zoning Appeals shall be held at the call of the chairperson, and at such other times as the Board of Zoning Appeals may determine. Such chairperson, or in his/her absence, the acting chairperson, may administer oaths and compel the attendance of witnesses. The Board of Zoning Appeals shall adopt rules of procedure and shall keep records of applications and the action thereon, which shall be a public record.
  • Appeals: An appeal to the Board of Zoning Appeals, based in whole or in part on the provisions of the Zoning Ordinance, may be taken by any person aggrieved, or by any governmental officer, department, Board of Zoning Appeals or bureau affected by the decision of the Building Official. Such appeal shall be taken by filing with the Board of Zoning Appeals a notice of appeal, on forms provided by the Building Official, specifying the ground thereof, and by paying the required fee. The Building Official shall transmit to the Board of Zoning Appeals all papers constituting the records upon which the appeal action was taken.
  • Hearing and Notice: The Board of Zoning Appeals shall fix a reasonable time for the hearing of an appeal and shall give due 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 two-family dwellings within 300 feet, the notice to be delivered personally or by mail to the respective owners and tenants at the address given in the last assessment roll. If the tenant’s name is not known, the term “occupant” may be used. A notice sign shall also be posted in a conspicuous place on the subject property. Notice signs will be provided by the City of Birmingham. It is the responsibility of the applicant to post the notice sign as required, to ensure that the notice sign remains posted during the entire notice period and to remove the notice sign the day after the public hearing the notice sign was advertising. At the hearing, any person or party may appear in person, by agent or by attorney. All such hearings shall be open to the public.
  • Powers and Duties: The Board of Zoning Appeals shall have the powers and duties set forth in MCL 125.581 et seq., MSA 5.2931 et seq. and as more particularly hereinafter enumerated. The Board of Zoning Appeals shall not have the power to change the zoning district of any property. The Board of Zoning Appeal's power and duties shall include the following:
    1. Review of administrative decisions.
      1. The Board of Zoning Appeals shall hear and decide appeals from and review any order, requirement, decision or determination made by an administrative official charged with the enforcement of the Zoning Ordinance.
      2. It may reverse or affirm, wholly or partly, or may modify the order, requirement, decision or determination appealed from and shall make such order, requirement, decision or determination as in its opinion ought to be made in the situation, and to that end shall have all the powers of the officer from whom the appeal is taken.
    2. Mapping disputes.
      1. Where disputes arise as to the location of the floodplain boundary or the limits of the floodway, the Board of Zoning Appeals shall resolve the dispute and establish the boundary location in accordance with Section 1.15. In all cases, the decision of the Board of Zoning Appeals shall be based upon the most current floodplain studies issued by the Office of Federal Insurance and Hazard Mitigation. Where the Office of Federal Insurance and Hazard Mitigation information is not available, the best available floodplain information shall be utilized.
      2. Where a dispute involves an allegation that the boundary is incorrect as mapped and Office of Federal Insurance and Hazard Mitigation floodplain studies are being questioned, the Board of Zoning Appeals shall modify the boundary of the floodplain or the floodway only upon receipt of an official letter of map amendment issued by the Office of Federal Insurance and Hazard Mitigation.
    3. Variances.
      1. The Board of Zoning Appeals shall hear and grant or deny requests for variances from the strict application of the provisions of the Zoning Ordinance where there are practical difficulties or unnecessary hardships in carrying out the strict letter of such chapter. In granting a variance, the Board of Zoning Appeals may attach such conditions as it may deem reasonably necessary to promote the spirit and intent of the Zoning Ordinance. The Board of Zoning Appeals shall not grant any variance unless it first determines that:
        1. Because of special conditions applicable to the property in question, the provisions of the Zoning Ordinance, if strictly applied, unreasonably prevent the property owner from using the property for a permitted purpose;
        2. Literal enforcement of the chapter will result in unnecessary hardship;
        3. The granting of the variance will not be contrary to the spirit and purpose of the Zoning Ordinance nor contrary to the public health, safety and welfare; and
        4. The granting of the variance will result in substantial justice to the property owner, the owners of property in the area and the general public.
      2. Variances from the provisions of Section 4.13, Floodplain Regulations, shall only be granted by the Board of Zoning Appeals upon a determination of compliance with the general standards for variances contained in the Zoning Ordinance and in accordance with the following:
        1. The variance granted will not result in flood heights in excess of those permitted by the Zoning Ordinance, additional threats to public safety, extraordinary public expense, create nuisances, cause fraud on or victimization of the public, or conflict with existing laws or ordinances.
        2. The variance granted shall be the minimum necessary, considering the flood hazard, to afford relief to the applicant.
        3. Variances may be granted for the reconstruction, rehabilitation or restoration of structures listed on the National Register of Historic Places or the Michigan Historic Markers listing of historic sites, or any other state register of historic places without meeting the requirements of this section.
      3. Sign Variance Procedure. Any person who feels aggrieved by a decision of the City Planner or Design Review Board may have the sign reviewed by the Board of Zoning Appeals. A variance may be granted by the Board of Zoning Appeals only in cases involving practical difficulties when the evidence in the official record of the appeal supports all the following affirmative findings:
        1. That the alleged practical difficulties are peculiar to the property of the person requesting the variance by reasons of the physical and/or dimensional constraints of the building and/or site, and result from conditions which do not exist generally throughout the City;
        2. That the granting of the requested variance would not be materially detrimental to the property owners in the immediate vicinity;
        3. That the granting of the variance would not be contrary to the general objectives of this Chapter and is in keeping with the spirit and intent of this ordinance; and
        4. That granting the variance will result in substantial justice being done, considering the public benefits intended to be secured by this Chapter, the individual hardships that will be suffered by a failure of the Board of Zoning Appeals to grant a variance, and the rights of others whose property would be affected by the allowance of the variance.
        5. In granting a variance, the Board of Zoning Appeals may attach such conditions as it may deem reasonably necessary to promote the spirit and intent of the Zoning Ordinance and the conditions specified in the sign ordinance, Chapter 86, Article 02, Section 2.06.
  • Miscellaneous:
    1. No order of the Board of Zoning Appeals permitting the erection or alteration of buildings shall be valid for a period longer than one year, unless a building permit for such erection or alteration is obtained within such period and such erection or alteration is commenced and proceeds to completion in accordance with the terms of such permit.
    2. No order of the Board of Zoning Appeals permitting a use of a building or premises shall be valid for a period longer than one year unless such use is established within such period; provided, however, that if the use of such permit is dependent upon the erection or alteration of a building, such order shall continue in full force and effect if a building permit for such use, erection or alteration is obtained within such period and such erections or alterations are commenced and proceed to completion in accordance with the terms of such permit.

    • Effective on: 1/1/1901

    8.02 Floodplain Management Administrative Duties.

  • Agency Designated: Pursuant to the provisions of the State Construction Code in accordance with Section 8b(6) of Act 230, of the Public Acts of 1972, as amended, the Building Official of the City of Birmingham is hereby designated as the enforcing agency to discharge the responsibility of the City of Birmingham under Act 230, of the Public Acts of 1972, as amended, State of Michigan. The City of Birmingham assumes responsibility for the administration and enforcement of said Act through out its corporate limits.
  • Code Appendix Enforcement: Pursuant to the provisions of the State Construction Code, in accordance with Section 8b(6) of Act 230, of the Public Acts of 1972, as amended, Appendix G of the Michigan Building Code shall be enforced by the enforcing agency within the City of Birmingham.
  • Designation of Regulated Floodplain Hazard Areas: The Federal Emergency Management Agency (FEMA) Flood Insurance Study (FIS) entitled Oakland County Flood Insurance Study and dated September 29, 2006 and the Flood Insurance Rate Map(s) (FIRMS) panel numbers of 26125C0517F, 0529F, 0536F, 0537F, 0538F and 0541F and dated September 29, 2006 are adopted by reference and declared to be a part of Section 1612.3 of the Michigan Building Code.
  • Floodplain Management Administrative Duties: With regard to the National Flood Insurance Program and the regulation of development within the floodplain as prescribed in Section 4.13, the duties of the Building Official shall include, but are not limited to:
    1. Notifying adjacent communities and the Department of Environmental Quality of the proposed alteration or relocation of any watercourse, and the submission of such notification to the Office of Federal Insurance and Hazard Mitigation.
    2. Recording of the actual elevation in relation to mean sea level of the lowest floor, including basement, of all new or substantially improved structures constructed within the floodplain, and in the case of floodproofed structures, the elevation to which the structure was floodproofed.
    3. Recording of all certificates of floodproofing, and written notification to all applicants to whom variances are granted in a floodplain indicating the terms of the variance, the increased danger to life and property, and that the cost of flood insurance will increase commensurate with the increased flood risk.
  • All records and maps pertaining to the National Flood Insurance Program shall be maintained in the Office of the City Engineer and shall be open for public inspection.

    • Effective on: 1/1/1901

    8.03 Enforcement, Penalties and Other Remedies.

  • Any building or structure which is erected, altered or converted, or any use of premises which is begun or changed subsequent to the time of passage of the ordinance from which the Zoning Ordinance is derived and in violation of any of the provisions thereof is hereby declared to be a public nuisance.
  • The owner of any building, structure or premises or part thereof, where any condition in violation of the Zoning Ordinance shall exist or shall be created, and any person who has assisted knowingly in the City Commission of such violation shall each be guilty of a separate offense and upon conviction thereof shall be liable to the fines and imprisonment provided for the violation of the Zoning Ordinance.
  • Each day that a violation is permitted to exist shall constitute a separate offense.
  • The rights and remedies provided for the violation of the Zoning Ordinance are cumulative and in addition to any other remedies provided by law.

    • Effective on: 1/1/1901