[B&H Code §§ BH204 and
BH314; amended 11-4-1996 by Ord. No. 1625; 12-1-1997 by Ord. No. 1644; 6-19-2006 by Ord. No. 1804; 12-1-2014 by Ord. No. 1930]
A.
No person shall maintain any structure or dangerous building as defined in the definition section below. All such structures are hereby declared to be public nuisances as defined by Chapter 21.
B.
The Building Board of Appeals may, after notice to the owner and after holding a public hearing thereon, condemn any structure which is a public nuisance under Subsection A of this section. Such notice shall be given to the owner of the land upon which such structure is located and shall specify in what respects the structure is a public nuisance and require the owner to alter, repair, tear down or remove the structure within such reasonable time as may be necessary to do or have done the work required by the notice. The notice may also provide a reasonable time within which such work shall be commenced and a reasonable time within which such work shall be completed.
C.
If, at the expiration of any time limit specified in the notice given pursuant to Subsection B of this section, the owner has not complied with the requirements of such notice, the City Manager or designee shall carry out the requirements of the notice. The cost of such abatement shall be charged against the premises and the owner.
D.
The Building Official may abate any public nuisance defined in this
section, if the public safety requires immediate action, without preliminary
order of the Building Board of Appeals. Thereafter, the cost of abating
such nuisance shall be charged against the premises and the owner.
E.
In addition, the City may commence legal action against the owner
of the premises for recovery of the full cost of abatement, including,
but not limited to, demolition, making the premises safe, or maintaining
the exterior of the structure or grounds adjoining the structure.
A judgment in an action brought pursuant to this section may be enforced
against assets of the owner other than the building or structure.
A.
BOARD
DANGEROUS BUILDING
Generally. As used in this article, words and terms shall have the meanings ascribed to them in the building code adopted by § 9-22 and in Chapters § 17 and 21 of this Code,[1] unless indicated to the contrary. The following terms
shall have the meanings indicated:
The Building Board of Appeals as described in § 9-327.
Any building or structure which, because of one or more violations of Chapter 9, Buildings and Building Regulations, Chapter 17, Housing Code, and/or Chapter 21, Nuisances, of the City of Kalamazoo Code of Ordinances, is unsafe for occupancy or to the general public, or is a visual blight adversely affecting the general welfare of the area.
A.
For the purpose of carrying out the provisions of this article, or Chapter 17, Article II,[1] a Building Board of Appeals shall be created, consisting
of seven members appointed by the City Commission, who meet one or
more of the following qualifications:
(1)
A residential builder, licensed by the state;
(2)
An architect or engineer, registered in the state;
(3)
An employee or representative of the general contracting business
with experience in nonresidential building construction;
(4)
An individual with experience in residential and/or commercial property
leasing, maintenance, or similar capacity;
(5)
An owner of residential property existing within the City;
(6)
An owner of property located in an historic district within the City;
and
(7)
A resident of the City of Kalamazoo.
B.
The City Fire Marshal and the Historic Preservation Coordinator shall
be ex officio members of the Board with no voting power.
C.
The Board members shall be residents of the City of Kalamazoo or
owners or employees of a business which is located in the City of
Kalamazoo, the majority of which are City residents.
D.
Appointments of said Board members shall be for a three-year term
except that the initial appointments shall be made up from current
members of the Building Board of Appeals and the Housing Board of
Appeals, keeping term expiration dates.
E.
The Board shall elect from its membership a Chair, Vice Chair, and
such other officers as it deems advisable. The terms of the officers
are for one year, and they are eligible for reelection. An employee
of the Community Planning and Development Department shall act as
recording secretary to receive and distribute all meeting minutes
and to perform other relevant functions.
F.
A majority of the members of the Board shall constitute a quorum. A majority of the members is required to take action on all matters not of an administrative nature, but a majority of a quorum may deal with administrative matters. Administrative matters, without limitation, consist of election of offices; amendments to rules of procedure; setting special meetings or adjourning a meeting; changes in meeting dates, times or locations; or similar actions not involving matters arising from this article or Chapter 17, Article II.[2]
G.
The Board shall adopt rules of procedure subject to approval by the
City Commission.
H.
All meetings of the Board shall comply with the Open Meetings Act.
It shall be unlawful for any owner or owner's agent to keep
or maintain any dangerous building or structure within the City.
A.
When the Building Official determines that a building is a dangerous
building, the Building Official may:
(1)
Issue a notice of such a determination by mailing it to the owner
of the building. Such notice shall be mailed by first-class mail to
the owner of the building and to any agent, lessee, mortgagee, or
land contract vendee of record of whom the City has actual knowledge;
and/or
B.
If a notice of determination is issued, it shall identify the property
at issue and shall contain the following provisions:
(1)
A description of the conditions causing the building to be a dangerous
building ("dangerous conditions") and identifying the necessary repairs
to correct the dangerous conditions;
(2)
An indication if permits for performance of work to repair the conditions
are necessary;
(3)
A deadline by which the City must receive a written commitment to
perform the necessary repairs;
(4)
A deadline for the repair of the dangerous building conditions; and
(5)
An indication that if either of the deadlines mentioned above is
not complied with, the Building Official may request that the Building
Board of Appeals order that the City may have the building razed or
repaired. The cost incurred by the City shall become a lien against
the property enforceable in the same manner as delinquent taxes.
A.
Any owner who has received such a notice of determination may file
a written request for a hearing with the Building Board of Appeals
asking that the Board:
(1)
Extend the deadline to perform the required repairs; or if the Building
Official desires the property to be razed, allow the owner a reasonable
time to repair the dangerous conditions;
(2)
Determine that the building is not, in fact, a dangerous building;
(3)
Modify or delete (but not add to) some or all of the required repairs
on the grounds that such repairs are unnecessary or excessive; and/or
(4)
Determine that any aspect of the notice sent by the Building Official
is in error, illegal, or unauthorized.
B.
If the Building Official is not satisfied with the response (if any)
to the notice of determination he/she previously sent, the Building
Official may file a written request for a hearing with the Building
Board of Appeals (even if the owner has also made such a request).
The request shall ask the Board to order that the building be razed
or that the dangerous conditions be repaired, either by the owner
or by the City (or the City's designee).
C.
An owner may not file a written request for a hearing before the
Building Board of Appeals more than 10 days after the date the City
mailed notice to such owner that the Building Official has requested
a hearing.
D.
Upon receipt of either of such requests, the City shall schedule
a hearing with the Board and shall notify the owner (by first-class
mail) of the time and place of the hearing.
E.
If the decision of the Board either under Subsection A or Subsection B does not resolve the situation in a timely manner based on such decision, then either the owner (following Subsection A) or the Building Official (following Subsection B) may request another hearing before the Building Board of Appeals.
A.
At the time and place provided in the notice of hearing, the Board
shall conduct the hearing requested by the owner and/or the Building
Official. At the hearing, the party who requested the hearing has
the burden of proof to present clear and convincing evidence to support
the requested relief. The evidence may include written documents,
photographs, oral testimony of witnesses or affidavits. For the Board
to consider any written documents, photographs or affidavits, those
shall be provided to the other party at least five days before the
hearing, unless the Board finds good cause for not adhering to that
deadline, or the other party has no objection for the Board to consider
that evidence. The Board will consider only that evidence that is
relevant to the issues before it. The Board may exclude evidence that
is irrelevant, immaterial or unduly repetitious. In weighing the evidence,
the Board may consider evidence of a type commonly relied upon by
reasonably prudent people in the conduct of their affairs and facts
within the general knowledge of the community. The owner shall be
entitled to be represented by counsel, to submit evidence, to cross-examine
witnesses and to make arguments concerning the factual and legal issues.
The Board shall ensure that the entire hearing is recorded.
B.
Within 30 days after the conclusion of the hearing, the Board shall
prepare its written decision and mail it, by first-class mail, to
the owner and the Building Official. The decision shall be supported
by specific findings of fact and shall state:
(1)
That the relief sought, if any, by the owner is or is not granted,
in whole or in part, the terms and conditions of that relief, and
the reasons explaining the decision;
(2)
That the relief sought, if any, by the Building Official is or is
not granted, in whole or in part, the terms and conditions of that
relief, and the reasons explaining the decision;
(3)
That the owner is to be allowed a specified and reasonable time during
which to repair the dangerous conditions, including any reasonable
terms and conditions, and the reasons explaining the decision; and/or
(4)
That the hearing is adjourned to a later time so that specified additional
information can be obtained from the owner and/or the City and presented
to the Board.
C.
If the Board's decision is that the dangerous conditions should be
repaired by the City or its designee, the decision shall provide a
complete list of all repairs necessary to eliminate the dangerous
conditions, along with an estimated cost to complete them.
An owner aggrieved by any final decision of the Board under § 9-331 may appeal that decision to the Kalamazoo County Circuit Court, provided that the appeal must be filed within 21 days from the date of the mailing of the Board's decision to the owner, or within such time period as provided by law.
A.
If the Board determines that a building is a dangerous building and that it should be razed or repaired, and no petition is filed within the time prescribed by § 9-332 (or such a petition is filed but denied), the Building Official shall post, in a conspicuous place on the dangerous building, a placard describing the Building Board of Appeals' ordered action. No person, other than the Building Official, shall deface or remove the placard.
B.
All occupants of a dangerous building on which a placard was placed
under this section shall vacate such building within a reasonable
time, as required by the Building Official. No owner or operator shall
let to any person for human occupancy, and no person shall occupy
or permit anyone to occupy, such dangerous building on which the Building
Official has placed a placard indicating the date on which such building
is to be vacated. Only when the Building Official has provided the
owner with written approval and the placard is removed from the dangerous
building may human occupancy again occur. The Building Official shall
remove such placard upon the complete repair of the dangerous conditions
upon which the Board's decision was based.
C.
If, under the provisions of this section, a dangerous building has
been ordered vacated by the Building Official and there is no compliance
with the order in the time specified, the Building Official may petition
the appropriate court to obtain compliance, and the court may order
the occupants to vacate the dangerous building forthwith.
D.
If any dangerous building is occupied after it has been ordered vacated
under this section, no rent shall be recoverable for the period of
occupancy.
A.
If the Board's decision is to have the City raze or repair the building,
the City, at its sole option, may either:
(1)
Assume the responsibility of performing the ordered task by use of
City employees or by directly contracting with appropriately qualified
persons or businesses to perform any or all of such task; or
(2)
Assign the performance of the ordered task, by contract, to a receiver,
who shall then assume the responsibility to perform, at its own expense,
such task (by either its own employees or those with whom the receiver
contracts).
B.
If the City elects to perform the ordered task, either through its
employees, third-party contractor or receiver, the owner shall reimburse
the City for all costs it incurred in the effort (including reasonable
administrative costs and expenses).
If the City elects to contract the responsibility for razing
or repairing the building to a receiver, the City shall put the matter
out for bid, pursuant to established City procedure.
Upon completion of the work required of the receiver by the
contract, the receiver shall submit to the City a complete invoice
listing all of the work performed and the cost (materials, supplies
and services).
A.
Upon the completion of the raze or repair by either the City or the
receiver, the City shall mail an invoice to the owner demanding payment
by the owner of the cost incurred by the City or, if a receiver performs
the ordered task, the amount of the receiver's bid to the City.
A.
Declare the amount owing as a lien against the property and enforce
collection in the same manner as delinquent property taxes, including
accruing interest and administrative fees as allowed by law regarding
delinquent taxes.
B.
File suit in the appropriate court in Kalamazoo County seeking a
money judgment as if the amount owed by the owner is past due for
an open account.
C.
Commence foreclosure proceedings against the owner pursuant to applicable
laws, including the power to sell the subject real estate at public
auction by advertisement, without notice or hearing, except as required
by Michigan statutes.
(1)
If the proceeds from a foreclosure sale are insufficient to pay the
sum due, the City may recover said deficiency in the same manner as
delinquent property taxes.
D.
Any judgment, including the cost for reasonable attorney fees incurred,
obtained by the City shall bear interest at the statutory allowed
rate for money judgments.
The receiver may bid at the foreclosure sale; if its bid is
the highest bid, the sum due to it (as determined by the court) may
be applied to said bid (so as to reduce the sum otherwise payable
by the receiver).
A.
If the proceeds from a foreclosure sale are insufficient to pay the
sum ordered by the court, the City may recover said deficiency:
A.
If the sum demanded by the City from the property's owner is not
timely paid and the City elects not to pursue a foreclosure sale,
the City may recover said sum:
Upon commencement of razing or repairing the dangerous building,
the City may record a notice of lis pendens with respect to the future
claim the City will assert (in its own name and/or on behalf of the
receiver) for the costs to raze or repair such building.
From the time repairs commence by the City, including through
a third-party contractor or through a receiver, until the time the
cost of those repairs is fully paid by the owner, the owner shall
exercise no control over the building nor occupy nor cause or allow
another to occupy such dangerous building.
[1]
Editor's Note: Former Art. VIII, Abandoned Residential Structures,
adopted 1-6-2003 by Ord. No. 1753, which immediately followed, was
repealed 4-15-2019 by Ord. No. 1982.
