STATE OF MICHIGAN IN THE CIRCUIT COURT FOR THE COUNTY OF WAYNE CITY OF DEARBORN Plaintife, v Case No. CZ Hon. PRO-V ENTERPRISES, LLC, JSD HOLDINGS, LLC, GBD ENTERPRISES, LLC, and JAMES RADEMAKER, Jeremy D. Brown (P76541) Jeremy J, Romer (P77287) Attomeys for Plaintiff 16901 Michigan Ave., Suite 14 Dearborn, MI 48126 (313) 943-2035 PLAINTIFF'S MOTION FOR A PRELIMINARY INJUNCTION ‘NOW COMES Plaintiff City of Dearborn, by and through its attomeys, Jeremy D. Brown and Jeremy J. Romer, and for its Motion for a Preliminary Injunction states as follows: 1, As set forth in the accompanying Complaint, Defendants are causing and/or permitting significant amounts of fugitive dust to emanate from the property located at 4401 Wyoming Street, Dearborn, Michigan, 48126 (the “property”). 2, According to the United States Environmental Protection Agency (EPA), fugitive dust has ‘been linked to various respiratory issues including aggravated asthma, chronic bronchitis, emphysema, and chronic obstructive pulmonary disease. (Exhibit 1 - BPA Document)3. ‘Defendants are continuing to cause and/or permit significant amounts of fugitive dust to emanate from the property. (Exhibit 2 — April 13, 2023 Citation) 4. The fugitive dust Defendants have caused and/or permitted to emanate from the property constitutes a public nuisance. 5. Additionally, Defendants are occupying and operating their business out of the building on ‘the property without a Certificate of Occupancy. 6. Defendants’ occupation and operation of their business out of the building on the property without a Certificate of Occupancy violates the City of Dearborn Ordinances. (See Exhibit 3 — Dearborn Code of Ordinances Section 5-29(b)) 7. Defendants’ occupation and operation of their business out of the building on the property without a Certificate of Occupancy violates City of Dearborn Zoning Regulations. (See Exhibit 4 — The City of Dearborn Zoning Regulations Section 32.07(B)) 8. The violation of the City of Dearbom Zoning Regulations is a nuisance per se. (See Exhibit 5- City of Dearborn Zoning Regulations Section 32.09(A); Exhibit 6 - City of Dearborn Zoning Regulations Section 2.01(G)) 9. Pursuant to MCR 3.310, the Court may issue a preliminary injunction enjoining Defendants from occupying and operating their business out of the building on the property unless and until the nuisances are abated. 10. To determine whether a preliminary injunction is warranted, the Court should consider the following four factors: (1) the likelihood that the party secking the injunction will prevail on the merits; (2) the danger that the party seeking the injunction will suffer irreparable harm if the injunction is not issued; (3) the risk that the party seeking the injunction would be harmed more by the absence of an injunction than the opposing party would be by the granting of therelief, and (4) the harm to the public interest ifthe injunction is issued. See, e.g., Barrow City of Detroit Election Comm, 305 Mich App 649, 662; 854 NW2d 489 (2014). 11. The factors in this case lean heavily in favor of issuing a preliminary injunction, 12. As set forth in more detail in the accompanying brief: (1) Plaintiff is extremely likely to prevail on the merits of the case; (2) Plaintiff will suffer irreparable harm if the Court does not issue the injunction; (3) Plaintiff will be more harmed by the absence of the injunction than Defendants would be by the Court granting the injunction; and (4) not only would there eno harm to the public interest if the Court issues the injunction, but rather there would be harm to the public interest if the Court does not issue the injunction. WHEREFORE, Plaintiff respectfully requests that this Honorable Court grant its Motion for a Preliminary Injunction and enter an Order enjoining Defendants from occupying and operating their business out of the building on the property unless and until the nuisances ure abated, and award any other relief deemed appropriate. Respectfully submitted, /s!Jeremy J. Romer JEREMY J. ROMER (P77287) /s/ Jeremy Brown JEREMY D. BROWN (P76541) Attomeys for Plaintiff 16901 Michigan Ave,, Ste. 14 Dearborn, MI 48126 (313) 943-2035 (313) 943-2469 (fax) Date: April 18, 2023 IBrown@Dearborn. govSTATE OF MICHIGAN IN THE CIRCUIT COURT FOR THE COUNTY OF WAYNE CITY OF DEARBORN: Plaintiff, v Case No. cz Hon. PRO-V ENTERPRISES, LLC, JSD HOLDINGS, LLC, GBD ENTERPRISES, LLC, and JAMES RADEMAKER, Defendants. Jeremy D. Brown (P76541) Jeremy J. Romer (P77287) Attorneys for Plaintiff 16901 Michigan Ave., Suite 14 MI 48126 (813) 943-2035 PLAINTIFF’S BRIEF IN SUPPORT OF ITS MOTION FOR A PRELIMINARY INJUNCTION ‘NOW COMES Plaintiff City of Dearborn (the “City), by and through its attomeys, Jeremy D. Brown and Jeremy J, Romer, and in support of its Motion for a Preliminary Injunction states as follows: To protect the members of the public, the City requests that the Court issue a preliminary injunction enjoining Defendants from continuing to cause a public nuisance and enjoining Defendants from continuing to cause a nuisance per se. To determine whether a preliminary injunction is appropriate, the Court should consider the following four factors: (1) the likelihood that the party seeking the injunction will prevail on the merits; (2) the danger that the party secking the injunction will suffer irreparable harm if the injunction is not issued; (3) the risk that 4the party seeking the injunction would be harmed more by the absence of an injunction than the opposing party would be by the granting of the relief and (4) the harm to the public interest if the injunction is issued. See, e.g., Barrow v City of Detroit Election Comm, 305 Mich App 649, 662; 854 NW2d 489 (2014). As demonstrated below, the factors in this case lean heavily in favor or issuing @ preliminary injunction. 1 Plaintiffs Extremely Likely to Prevail on the Merits of the Case Plaintiff's Complaint alleges that (1) Defendants are creating a public nuisance by causing and/or permitting significant amounts of fugitive dust to emanate from the property located at 4401 Wyoming Street, Dearborn, Michigan, 48126 (the “property”), and (2) Defendants are creating a nuisance per se by occupying and/or permitting occupation of the building and operating and/or permitting the operation of the business out of the building without Certificate of Occupancy (“C of 0”) since at least 2018, Plaintiffis extremely likely to prevail on both claims, A. Public Nuisance ‘To establish a public nuisance, Plaintiff must show that Defendants are unreasonably interfering with a right common to members of the general public, Sholberg v Truman, 496 Mich 1, 6; 852 NW2d 89 (2014). Circumstances that support a finding of « public nuisance include: (1) whether the conduct involves a significant interference with the public health, the public safety, the public peace, the public comfort or the public convenience; ot (2) whether the conduct is proscribed by a statute, ordinance or administrative regulation; or (3) whether the conduct is of a continuing nature or has produced a permanent or long-lasting effect, and, as the actor knows or has reason to know, has a significant effect upon the public right. Bronson ¥ Oscoda Twp, 188 Mich App 679, 684-85; 470 NW2d 688 (1991) (citing 4 Restatement Torts, 24,§ 821B, p 87), Applying the factors to this case, it is evident that the fugitive dust Defendants are causing and/or permitting to emanate from the property constitutes a public nuisance.' First, it involves a significant interference with the public health, the public safety, the public peace, the public comfort, and the public convenience. According to the United States Environmental Protection Agency (EPA), fugitive dust has been linked to various respiratory issues including aggravated asthma, chronic bronchitis, emphysema, and chronic obstructive pulmonary disease. (Exhibit 1- EPA Document). A condition that endangers the health, safety, and welfare of nearby residents constitutes a public nuisance. Ypsilanti Charter Twp v Kircher, 281 Mich App 251,270; 761 NW2d 761 (2008) (Concluding “without difficulty” that the condition caused a public nuisance because it imperiled the health, safety, and welfare of members of the public.). Second, the conduct is proscribed by ordinance. The City’s Fugitive Dust Ordinance, Section 13-5.3 of the Dearbom Code of Ordinances, provides, in pertinent part, that the City's ‘purpose in enacting the Ordinance was to “minimize the proliferation of dust” because of the “potential health hazards associated with inhaling fugitive dust . .. which include pulmonary inflammation, asthma and fibrosis. In addition, the accumulation of dust . . . negatively impacts the enjoyment of life and property, and tends to depreciate the value of the property of others near these lots.” Lastly, the conduct is of'a continuing nature and has a significant effect upon the public ight. Defendants have been charged with violating the City's Fugitive Dust Ordinance at least ‘Tt is undisputed that Defendants have caused an unlawful amount of fugitive dust to emanate from their property, as demonstrated by Defendants pleading to at least 8 counts of violating the City’s Fugitive Dust Ordinance in the last 2-3 years. 616 times over the past 2-3. Defendants pled to violating the City’s Fugitive Dust Ordinance at least 8 times, with several other Fugitive Dust Violations pending. Any one of the above referenced factors is sufficient to find that the fugitive dust Defendants are causing and/or permitting to emanate from the property constitutes a public nuisance. Here, all three factors are met, Accordingly, Plaintiff is extremely likely to succeed on ‘the merits of its public nuisance allegation. B. Nuisance Per Se Plaintiffs also likely to succeed on its nuisance per se claim. Pursuant to the Michigan Zoning Enabling Act (“MZEA"), local units of government may enact zoning ordinances to rogulate the use of land and structures to meet the needs of the local government's citizens. ‘Sandstone Creek Solar, LLC v Twp of Benton, 335 Mich App 683, 697; 967 NW2d 890 (2021) (citing the MZEA), To permit the local government to enforce its zoning ordinances, “the Legislature provided an action for nuisance per se ‘to give teeth to local zoning enactments,” Alexander v Lane,__NW2d___; 2022 Mich. App. LEXIS 3043, at *13 (Ct App, May 26, 2022) (unpublished per curiam opinion) (quoting Fredal v Forster, 9 Mich App 215, 229; 156 NW2d 606 (1967)). In Tp of Fraser v Haney, 509 Mich 18; 983 NW2d 309 (2022), the local government sought to enforce its zoning ordinance by arguing that the defendant's violation of the zoning ordinance was a nuisance per se and must be abated. The Michigan Supreme Court noted that the MZEA permits such actions, quoting the following portion of MCL §125.3407: Except as otherwise provided by law, a use of land or a dwelling, building, or structure, including a tent or recreational vehicle, used, erected, altered, razed, or converted in violation of a zoning ordinance or regulation adopted under this act is a nuisance per se. The court shall order the muisance abated, and the owner or agent incharge of the dwelling, building, structure, tent, recreational vehicle, or land is liable for maintaining a nuisance per se. Tup of Fraser, 509 Mich at 24 (quoting MCL §125.3407); see also, Lima Twp v Bateson, 302 ‘Mich App 483, 493; 838 NW2d 898 (2013) (“Generally, a violation of a zoning ordinance constitutes a nuisance per se, and a court must order it abated.”). Itis undisputed that Defendants do not have a C of O for the property. It is also undisputed that Defendants’ occupation and operation of their business out of the building on the ‘property without a C of O violates the City of Dearborn Ordinances and violates City of ‘Dearborn Zoning Regulations. As demonstrated above, the violation is a nuisance per se. As such, Plaintiff is extremely likely to succeed on the merits of its nuisance per se claim, Il. Plaintiff Will Suffer Irreparable Harm if the Court Does Not Issue the Injunction For many of the same reasons that Defendants’ conduct is a public nuisance, the public, through Plaintiff, will suffer irreparable harm if the Court does not issue the injunction, Where harm to the public health exists, courts have issued preliminary injunctions to protect the public, For example, in Attorney General v Thomas Solvent Co, 146 Mich App 55; 380 NW2d 53 (1985), the trial court issued a preliminary injunction against the defendant after finding that an immediate threat of potentially imeparable harm to the public health existed as a result of the defendant causing pollutants to contaminate the environment. Jd. at 59. The defendant appealed, but the Court of Appeals affirmed the preliminary injunction because an “injunction was proper in this case. ‘The status quo ante is an unpolluted environment.” Id. at 64. Here, too, the status to be preserved to prevent irreparable harm is an unpolluted environment. The more fugitive dust caused and/or permitted by Defendants, the more irreparable harm will occur, Thus, thepublic, through Plaintiff, will suffer irreparable harm if the Court does not issue a preliminary injunction. IIL. Plaintiff Will Be More Harmed by the Absence of the Injunction than Defendants Would Be by the Court Granting the Injunction ‘As demonstrated above, the more fugitive dust caused and/or permitted by Defendants, the more irreparable harm will occur, Contrarily, Defendant will not be harmed at all by the injunction (other than the profits they are making illegally), This factor weighs heavily in favor of Plaintiff, as the injunction would merely require Defendants to stop operating illegally and adhere to the law before continuing their operations. IV. There Would Be No Harm to the Public if the Court Issues the Injunction ‘Not only would there be no harm to the public interest if the Court issues the injunction, ‘but rather there would be harm to the public interest if the Court does not issue the injunction. Enjoining Defendants from operating their business until they have a mechanism in place to limit the fugitive dust and until they have the C of © as required would not harm the public at all. However, as set forth above, the fugitive dust that Defendants are causing and/or permitting to emanate from the property is a serious health risk to the public. The longer Defendants are permitted to continue to their current practice relative to fugitive dust, the more potential harm will be done to the public. CONCLUSION For the foregoing reasons, the Court should enter an Order enjoining Defendants from occupying and operating their business out of the building on the property unless and until the nuisances are abted, and award any other relief deemed appropriate.Date: April 18, 2023 Respectfully submitted, /siSeremy J. Romer JEREMY J. ROMER (P7287) /s/Jeremy Brown ___ JEREMY D. BROWN (76541) Attorneys for Plaintiff 16901 Michigan Ave., Ste. 14 Dearborn, MI 48126 (313) 943-2035 (313) 943-2469 (fax) ‘JBrown@Dearborn.govEXHIBIT 1Fugitive Dust Control Measures and Best Practices What is Fugitive Dust? The term “fugitive dust”, as used in this document, refers to particulate matter that enters the atmosphere without first passing through a stack or duct designed to direct or control Its flow. Fugitive dust has been linked to various respiratory Issues Including aggravated asthma, chronic bronchitis, emphysema, and chronic obstructive pulmonary disease. ea Fugitive Dust Sources Common sources of fugitive dust Include paved and unpaved roads, agricultural fields, agricultural tiling operations, unenclosed storage piles, quarries, and construction sites. Dust and particulate ‘matter from these sources become fugitive when lifted into the alr by turbulent alr currents such as wind erosion, or mechanical forces such as vehicle traffic. A few examples (not a complete list) of fugitive dust generating activities, by Industrial sector, Include: Agriculture Grain Storage and Distribution: Loading and unloading grain in storage bins and sllos, site maintenance, and track out Mining and Quarries: Blasting, conveying, storage, site maintenance, a oad out, track out from truck and loading traffic. Industrial/Commercial Building: Equipment and truck use, soll disturbances, site and equipment maintenance, and track out Roadway Bullding & Paving: Equipment and truck use, soll disturbances, site equipment maintenance and track out Hot Mix Asphalt Processing and Application: Material crushing, screening operations, aggregate storage, baghouse particulate accumulation, recycling, and track out from truck and loading traffic Concrete batch processing and application: Material crushing, front-end hopper/bin loading, transfer conveying, aggregate storage miles, recycling and track out from truck and loading traffic Foundries: Storage and transfer of coke and fly ash > Food and Agricultural Processing: Storage, transfer, conveying and ‘track out Crushing Operations (rock, glass, concrete, demolition material): Loading, off-loading, crushing, conveying and storage, site maintenance, and track out Road/Bridge Maintenance and Repalr: Patching, clipping, sealing, shoulder repalr, sweeping, concrete sawing, abrasive blasting surface preparation, rock salt storage and site maintenance Rall Freight Yards: Loading and off-loading of rall cars, lot maintenance, and track out Utilities- Truck Freight Haulers/Off-loading Yards: Storage and transfer of coal and fly ashBest Practices-Control Measures ‘While the examples in this document are not exhaustive, they are Intended to assist faciltes to comply with fugitive dust regulations and highlight several effective strategies that have been adopted by facilities. The appropriateness and effectiveness of these strategies will vary for different facilities based on many factors, including type of operation, sources of fugitive dust and local regulatlons. These examples are not Intended to ‘sot forth a polloy on a statutory, regulatory, or technical Issue, or provide an interpretation of a statute or regulation, Storage Plies © Monitor the moisture content and size of exposed material. ‘© Apply water or an approved chemical dust suppressant on a regular besis. © Cover and stabilize or enclose material piles if not frequently accessed. ‘© Install wind breaks or barrlers around the storage pile. Material Transfer Points © Limit the material drop distance between the offloading point and stockpile to no more than 3 feet and restrict the flow of material using dead boxes, socks, drop down spouts/sleeves. © Install and maintain dust curtains around material transfer points, such as vehicle loading stations, to reduce air movement and isolate dust forming operations, ‘© Enclose conveyor belts and use belt wipers when possible. Spray water or an approved dust suppressant at the conveyor feed during material transfer. Clean up spillage at conveyor transfer points. Paved Roads © Wash, sweep, or vacuum streets at a frequency necessary to ellminate material that is visible within the streets surrounding the source. Establish vehicle speed limits of no more than 10 mph on paved surfaces. * Conduct Inspections using visual emissions observations, such as EPA Methods 9 or 22, at least weekly while heavy trucks are using the roadway. Unpaved Haul and Service Roads ‘© Apply water or an approved chemical dust suppressant on a regular basis. © Limit vehicle speeds to 5 mph In unpaved areas. ¢ Pave frequented haul roads with concrete or asphalt. © Conduct Inspections using visual emissions observations such as EPA Method 9 or method 22 at least dally while heavy trucks are using the roadway. Miscellaneous Source Best Practices ¢ Use good housekeeping methods to reduce the bulld-up of dusty materials. «Install hoods, fans, and fabric filters where possible to enclose and vent dusty processes. © Cover open-bodied trucks when the truck is carrying materials that can be released into the air. ‘* Install wheel wash stations near every vehicle exit location to minimize tracked material, © Windbreaks, fencing and revegetation wherever practical.Best Practices-Fugitive Dust Control Plan The following represent suggested best practices and fugitive dust control plan elements but are not to be considered an exhaustive list of required plan elements. Local plan requirements may vary. Plan Contents © Fugitive Dust Emission Sources - Identify all sources of fugitive dust and briefly desoribe the measures and practices employed to contro! fugitive emissions at each source. Consider parameters such as predominant wind direction, frequency of activity, process operating parameters, control efficiency, and fugitive dust monitoring parameters (silt loading, sitt ‘content, moisture content and other relevant physical factors). ‘¢ Operation and Maintenance Procedures - Include operation and maintenance procedures to verify the working condition of any control measures. Specify the frequency of such procedures and keep records of any maintenance conducted. ‘© Facility Layout - Provide a drawing showing the location of each potential source of fugitive dust at the facility, Include site boundaries, linear dimensions, and site entrance/exit locations. © Training - Provide training for personnel responsible for implementing the fugitive dust control plan, specifying the training contents in the plan. ‘* Reporting - Deviations from the plan and/or corrective actions required to address fugitive dust emissions should be reported to the appropriate alr permitting authority, where appropriate. ‘* Recordkeeping - Identify the name and title of the person responsible for implementation of ‘the plan. Keep records of all monitoring, Inspections, maintenance and completed work practices (including the name of the person conducting the activity), weather conditions, time of observation, area or operation observed, and corrective actions taken. Update and Review © Update - Update the fugitive dust control plan periodically to account for new fugitive dust ‘sources, process changes, or any change to the facility that would result In increased fugitive dust emissions. © Review - Submit the updated fugitive dust control plan to the appropriate permitting authority for review and approval. Fugitive Dust Control Plans and Clean Air Act Permits ‘© Enforoeabllity - Where appropriate, the permitting authority should Incorporate the fugitive dust control plan's provisions as part of the permit. Title V permits should incorporate a fugitive dust plan’s provisions when the activities In the plan, including assoclated monttoring provisions, such as fence line monitoring (i.e, EPA Method 22), are relled upon to assure compliance with applicable requirements, © Permit Revisions - Review and update the permit as necessary to reflect significant changes made to the fugitive dust control plan, such as the addition of fugitive dust sources or updated ‘operating and maintenance procedures. °Who do | contact for more information? United States Environmental Protection Agency Region 5 Alr & Radiation Division (AR-18J) 77 West Jackson Blvd Chicago, Ilinols 60604-3590 7 | (312) 353-2000 } Syv@n State/Tribal/Local Permitting Authorities EPA has approved or delegated authority for the following Region 5 states and other Jurisdictions to Issue certain CAA permits: Illinois: https://www2.illinois,ov/ena/Pages/defautt.aspx Indiana: https://www.in,gov/idem/eirquality/index,htm * Michigan: httos: //www,michigan.gov/egle/ © Minnesota: https://www.pea.state.mn.us/ © Ohio: https://www,epa,ohio,gov/ * Wisconsin: httos://dnrwisconsin.gov/ DISCLAIMER: This document aims to explain the application of certain EPA regulatory provisions using plain language. Nothing in this document revises or replaces any regulatory provisions, any other part of the Code of Federal Regulations, the Federal Register, or the Clean Air Act. Following the best practices contained herein does not equate to or guarantee compliance with the Clean Air Act, its Implementing regulations, and associated state/local requirements. For more Information, visit: httos://www.epa.aov/caa-permitting,‘8. Polity Guidance on the Use of the November 1, 2008 Update to AP-42 for Reentralned Road dust for ‘S9 Development end Traneportatln Conformity 2007 9, Investigation of Fughive Dust: Control Strategy and Regulatory Approach - EPA 1973 nttos//nepis.oa.gov/ Exe /2VPURL cal?Dockeve91005WNT.TXT 10. Control of Open Fugitive Dust Souroes: Final Report - EPA 198 ‘bo:z/nenis.epa.gov/Exe/2VPURL ogf?Dockey=910107S4,0XT 414. Fughtive Dust Polloy Sip’s and New Soures Review - EPA 1977 ‘ntios//nenls.ena.gov/Exe/2yPURL csf?Dackay=20046MGE-TAT 12, Inspector's Guide For Fugltive Dust Emission Sources Causes And Control Techniques Recommendations. 4, Mllnols EPA Operating Programs and Fugitive Dust Plans 2961 Aen. Code 242 Suber K: Fugtve Patou Mati4. Fughtve Dust . ‘Hts: in gov/idem/alrcompllance/fuahive-dust/ 2. Tile 326 artcl 8 Rule 4 Fugve Dust Eislons 4. Dust Control Treetments for Roads and Surfaces. 2, 701.0450 Preventing Particulate Metter from Becoming Airborne tos /www revisor mn.gov/nulas/7014.0350/ 4 Engneerng Guld #24: BAT Requrements for Futve Dust Sources pdfrvers7ak2G6s 2. Engineering Gulde #24: Application of Fugtve Dust Requirements to Affected Facitties ‘tos.//wint.ena.ohio.gov/Portais/27 /engineer/egulces/gukde24.pdt ‘8. Rule 3745-17-08 Restriction of Emission of Fuge Dust ‘tas//ondes. ohio gov/ahio-adminsiatvcode/nul- 3745-27-08 ‘4, Reesonebly Avaliable Contro! Measures for Fuge Dust Sources iioas//na ohle.ov/portala/27/endineer/recm/RACM text searchable. pt 5, Engineering Guide #57 — Reasonably Available Control Mossures for Fugitive Dut Emleslne from Roadway CConstructon and Maintenance Projects ntus//ena ohio gov/stto/Portae/27/engneer/agvide/gukia57 nat ‘Wisconsin 4.,_AlPrgrom Fet Sheet Pareuate Matter Emile and Polaion Requirements 2. NRAS6.04 Fugtve Dust tns://dos ogi. wisconsin ¢ov/coda/edmin_coxe/nr/400/445EXHIBIT 2uti, pn, 328387 ase tt i FERRE ag oe Aeon gm te ‘Spe A!3, JPA im ead altg? | Heli all For er ii Wig Mar Rp Comer an at x JSD Hpldings Lee OL Wyortas ow os ace FI i SRR ROR RE Kiam Cw aw Claaehar won — HHOL Wns tere Her, Chau Cromer ls” DEARBORN cours WANE poreraugme 1 Se re pn tematic mat Fourth vielatlon Oo2S 1B Fugesive dest / Toke orb aa Pa i oe w n oo ears g ieeitiaes oe ~ emoEXHIBIT 3Sec. 5-29. - Nonresidential bullding inspection and occupancy requirements. (a) Definitions. For purposes of this section, the following definitions shail apply: (1). "Building with independent units" shall mean a building with one or more spaces occupied or designed to be occupied independently of the other units, and which are independently serviced by utilities, regardless of whether each unit is identified by a eeparate street address or by a sulte number. (2) "Multipurpose common building’ shall mean a bullding with a common address and suites that are serviced by common utllities. (b) Certificate of occupancy required. It shall be unlawful for any person, firm or corporation to ‘occupy or reoccupy, or for any owner or agent thereof, to permit the occupation or reoccupation of any building or part thereof, for any nonresidential purpose until a certificate of occupancy has been issued by the economic and community development department. (c) Certificate of occupancy required for sale or transfer. It shall be unlawful for anyone, including, but not limited to, the owner, attorney, representative lending institution, title company, real estate firm, broker, or salesman to assist in consummating a sale, transfer, lease, or other transaction involving nonresidential real property in the city regardless of where the closing of the sale or lease occurs, without first presenting the purchaser or tenant with a copy of the inspection report or certificate of occupancy Issued by the economic and community development department within six months prior to the date of such sale, lease, or transfer. (1) Ownership change: application for name change in lieu of inspection when no change in use or tenant. When the ownership information contained on a nonresidential certificate of occupancy changes as a result of the sale of a building, transfer between corporate entities, or any other event, and the ownership change does not result in a change in the occupancy, use, or tenancy of the building, the requirement of an inspection for sale may be waived provided that the new owner files an application with the economic and community development department for an owner name change, and submits the fee for a name change according tothe schedule provided in chapter 9 of this Code. ‘The owner of a building with independent units shall apply for a name change for the certificates of ‘occupancy of each unit within the building. The owner of a multipurpose common building shall obtain ‘a name change on the certificate of occupancy for the building as a whole. A certificate of occupancy Name change will not alter the schedule for interval inspections provided for in this Code. . Any building for which outstanding code violations exist, and/or which do not have a final certificate of occupancy for the building or any part thereof, and/or which have only a temporary certificate of occupancy for any building or part thereof shall not be eligible for a name change in lieu of Inspection until all outstanding violations are corrected. If outstanding violations remain upon the closing of the sale, transfer, or lease of the building, the new owner or lessee shall correct those violations before a certificate of occupancy Is Issued, and a full certificate of occupancy inspection will also be required, b. An owner who fails to apply for a name change and submit the required fee, or who voluntarily requests a certificate of occupancy inspection for sale shall be deemed to have waived the option to submit an application for name change in lieu of inspection, and shall be required to correct all violations identified in the inspection report as a condition of obtaining a final certificate of occupancy for the building and its units. (2) Period of validity. A final nonresidential certificate of occupancy shall remain in effect for the life of the building or structure, or part thereof, as long as the specific operation conducted within the bullding or structure or use of the land continues, except that the certificate of occupancy of a building or structure, or part thereof, that is found to have code violations during an interval inspection shall be deemed a temporary certificate of occupancy that shall expire 90 days after the date of the inspectionreport unless the building official determines that all violations identified on the inspection report have been corrected, or an extension of time for compliance with the inspection report has been granted by the building official. (d)_ Interval inspections. The building official shall cause to be inspected from time to time, and as nearly as possible once a year, as determined by a schedule established by the economic and community development director or his or her designee, all nonresidential buildings and facilities in the city to ensure that they are being maintained to comply with minimum health, safety, and public welfare requirements. Fees for interval inspections shall be assessed as provided in chapter 9 of this Code. When an interval inspection results in a finding that code violations exist, the building official ‘shall cause an inspection report to be issued that identifies each violation, and the owner shall ensure. ‘that all violations are corrected within 90 days of the date of the inspection report, (e) Construction. The provisions of this section shall be construed, if possible, in such manner as to make such provisions consistent with all other ordinances of the city, including all future ordinances of the city, and all amendments thereto; provided, however, that where any inconsistency or conflict cannot be avoided, then the most restrictive of such inconsistent or conflicting provision shall control and prevail. (Ord. No, 11-1340, 12-12-11)EXHIBIT 4‘Sec, 32.07. - Permits and Certificates. A. Permits. 1, Permit required. A building permit or other appropriate permit shall be required as follows: (a) Prior to the erection, alteration, repair, renovation, demolition or removal of any building or ‘structure. (®) Prior to the installation, extension, or replacement of plumbing, electrical, drainage, or similar utility systems. (©) Prior to the establishment of a new use, whether the land is currently vacant or if a change in land use is proposed. (d) Prior to any change in use of an existing building or structure to a different class or type. 2. Definition of alteration and repair. For the purposes of this section, the terms “alteration” and "repaired" shall include any change to the structure, which may Include such elements as stairway, type of construction, type, class or kind of occupancy, light or ventilation, means of ingress. and egress, or other changes affecting or regulated by the adopted City Building Code and any ‘amendments thereof, the Housing Law of Michigan (Public Act 167 of 1917, as amended), these regulations or other applicable regulations of the City. 3. Application requirements. No permit shall be issued for construction, alteration, or remodeling of any ullng or structure until an application has been submitted, showing that the Proposed I provements conform with the provisions of these regulations and with ‘he Ci City Building ia. Applications for permits required by this Section shalll be filed with the building official on forms. prescribed by that official. Each application shall be accompanied by a written explanation of the proposed improvements, and, if applicable, a plan of the site drawn to scale. Submitted plans shall be of sufficient detail for the Official to determine whether the proposed improvements conform with these regulations, the Bullding Code, the State Construction Code Act (Michigan Public Act 230 of 1972, as amended), and other applicable local and federal laws and ordinances, Asite plan submitted and approved by the plan commission In accordance with these regulations shal satsty the requirements of this section. At a minimum, the applicant must supply the following m: (a) The location, dimensions and parcel identification Sidwell number of the land parcel. (b) Existing buildings or structures, plus the shape, size, and location of all buildings or structures to be erected, altered, or moved. (c) The existing and intended use of the parcel. (d) On residential parcels, the number of dwelling units contained within each building. (e) The name and address of all persons having an ownership interest in the premises upon which the improvements are proposed, together with a written statement from all such persons indicating knowledge of and agreement with the proposal. (f) Allinformation required by the adopted City Building Codes. (g)_ Such other information concerning the lot or adjoining lots as may be essential for determining whether the provisions of these regulations will be complied with.4. Conformity with applicable Ordinances and approved plans. A building permit shall be Issued only if, after thorough inspection of the application materials and plans, the building official finds that the proposal conforms with these regulations, the State Construction Code Act, Michigan Public Act 230 of 1972, as amended, City-adopted codes, other applicable laws and ordinances, ‘except where the building official receives written notice of a variance having been granted by the zoning board of appeals or building code board of appeals. Abuilding permit issued on the basis of a site plan approved by the plan commission shall incorporate full compliance with the approved site plan as a condition of the issuance of the permit. Modifications to an approved site plan shall be in compliance with these regulations. Use, layout, or construction at variance with approved plans or application materials shall be deemed in violation of these regulations, and subject to penalties in accordance with Article 32.00. 5. Explration of permits. A building permit issued pursuant to the provisions of these regulations shall be consistent with the procedures stated within the adopted Bullding Code of the City. Expiration and notification requirements of the applicable code shall be followed. 6. Inspection of completed work. The holder of any bullding permit issued pursuant to the requirements in this Section shall notify the Building Official for a required inspection and request a Certificate of Occupancy upon completion of the work authorized by the permit and prior to occupancy. B. Certificates of Occupancy. A Certificate of Occupancy shall be required prior to occupancy or reoccupancy of any use of land, building or structure. It shall be unlawful for any person, firm or corporation to hereafter occupy or reaccupy or for any owner or agent thereof to permit the occupation ‘or reoccupation of any building or addition hereto, or part thereof, for residential purpose until a Certificate of Occupancy has been issued by the department of building and safety. The following guidelines shall apply to Certificate of Occupancy: 1, General requirements. (a) Purpose. The purpose of a Certificate of Occupancy Is to permit the occupancy or use of land, bulldings, or structures. The Certificate of Occupancy can be Issued only upon the determination by the city planner and the building official that the site Is in compliance with the provisions of these regulations, the requirements of the adopted City building and construction codes, adopted city engineering standards, and that all outstanding City fees or other charges have been paid. (b) Certificates for new and existing bulldings. Certificates of Occupancy shall be issued for new or existing buildings or structures, or parts thereof, or for existing or new uses of land if, after inspection, the building official finds that any alterations, extensions, repairs, or new construction have been completed in conformity with the provisions of these regulations and other regulations of the City, and that provided further that the proposed use is fully in compliance with these regulations, Failure to obtain a Certificate of Occupancy prior to commencing the use of property shall constitute a violation of these regulations, subject to the penalties set forth in Article 32.00, (c) Temporary Certificates. A Temporary Certificate of Occupancy may be issued by the bullding official for a portion of a bullding or structure prior to occupancy of the entire building or ‘structure, provided that such portion of the building, structure, or premises is in conformity with the provisions of these regulations and other applicable regulations of the City, and provided further that no threat to public safety exists, A performance guarantee may be required by an enforcement official in accordance with Section 2.18 as a condition of obtaining a Temporary Certificate. No Temporary Certificate of Occupancy shall be granted for a period in excess of six (6) months on time extensions. The time may be extended with approval of the director of the building and safety department or authorized building official, with such request being received in writing. The date of expiration shall be indicated on the Temporary Certificate; failure to obtain a final Certificate of Occupancy or extension thereof within the specified time shall constitute a violation of these regulations, subject to the penalties set forth in Article 32.00.(d) Certificates for accessory buildings to dwellings. Bulldings and structures that are accessory to a dwelling shall not require a separate Certificate of Occupancy, but may be included In the Certificate of Occupancy for the principal use on the same parcel, provided the accessory buildings or uses are shown on the plot plan and are completed at the same time as the principal use. 2. Period of validity. A final Certificate of Occupancy shall remain in effect for the life of the building or structure, or part thereof, as long as the specific operation conducted within the building or structure or use of the land continues. A Certificate of Occupancy shalll be required of any new ‘occupant upon a change in occupancy of the building, structure, or land, 3. Records of Certificates. A record of all Certificates of Occupancy shall be kept in the office of the building official. Copies of such Certificates shall be furnished upon request to @ person or persons having a propriety or tenancy Interest in the property. 4, Application requirements. An application for a Certificate of Occupancy shall be made on forms supplied by the bullding official and must be accompanied by the fees specified. A Certificate of Occupancy may be processed concurrently with an application for a building permit, if a bullding permit is required. The city planner shall determine if a nonresidential occupancy change requires site plan review and approval by the plan commission pursuant to Section 32.02. 5. Issuance of Certificate. The enforcement official shall inspect a building or structure within fifteen (15) working days after notification by an applicant of the completion of a building or structure or other Improvements. The building official and city planner shall issue a certificate of occupancy upon finding that the building or structure, or part thereof, or the use of land conforms with an approved site plan and the provisions of these regulations. If the request for a Certificate of Occupancy is denied, the applicant shall be notified in writing of the denial and the reasons for denial. (Ord. No, 93-553, § 32.07, 2-2-1993; Ord. No. 94-617, 1-3-1995)EXHIBIT 5Sec. 32.09. - Violations and penalties. A. Public nuisance, Buildings erected, altered, razed or converted, including tents, mobile homes, and trailer coaches, or uses carried on in violation of any provision of these regulations are hereby declared to be a nuisance per se, and shall be subject to abatement or other action by a court of appropriate jurisdiction. B. Violation. Any person, firm, corporation, or agent, or any employee, contractor, or subcontractor of same, who fails to comply with any of the provisions of these regulations or any of the regulations adopted in pursuance thereof, or who impedes or interferes with the enforcement of these regulations by an enforcement official shall be deemed in violation of these regulations, C. Penalties. Any violation of these regulations shall constitute a misdemeanor. Any person who Is convicted shall be subject to punishment by a fine not exceeding five hundred dollars ($500.00) or by imprisonment not exceeding ninety (90) days for each offense, or both, at the discretion of the court. Each day a violation occurs or continues shall constitute a separate offense. Furthermore, the owner or tenant of any building, structure, premise, or part thereof, and any architect, engineer, bullder, contractor, agent, or other person who commits, participates in, assists in, or maintains any violation of these regulations may each be found guilty of a separate offense and may be subject to the penalties provided herein. The cost of prosecution shall also be assessed against the violator. The imposition of any sentence shall not exempt the offense from meeting compliance with the requirements of these regulations. D. Authority to pursue court action. The city attorney is hereby empowered to commence and pursue any and all necessary and appropriate actions or proceedings in the circult court, or any other court having Jurisdiction, to restrain or prevent any noncompliance with or violation of any of the provisions of these regulations, and to correct, remedy, or abate such noncompliance or violation. Any person aggrieved or adversely affected by such noncompliance or violation may institute suit or join the City in such an action to abate the violation. E. Other remedies. The rights and remedies set forth above shall not preclude the use of other remedies provided by Law, including any additionel rights of the City to initiate proceedings in an appropriate court of law to restrain or prevent any noncompliance with any provisions of these regulations, or to correct, remedy, or abate such noncompliance. F. Rights and remedies preserved. Any failure or omission to enforce the provisions of these regulations, and failure or omission to prosecute any violations of these regulations, shail not constitute a waiver of any rights and remedies provided by these regulations or by law, and shall not constitute a waiver nor prevent any further prosecution of violations of these regulations, (Ord. No. 93-553, § 32.09, 2-2-1983)EXHIBIT 6Sec, 2.01. - Administrative regulations. A. Scope of regulations. No structure or tract of land shall hereafter be used or occupied, and no ‘structure, or part thereof, shall be erected, altered, or moved, except in conformity with the provisions of this ordinance, Uses not expressly permitted are prohibited. Uses for enterprises or purposes that are coritrary to federal, state or local laws or ordinances are prohibited. However, where a bullding permit for a building or structure has been issued in accordance with prior to the effective date of this ordinance, Feb. 11, 1993, and construction Is begun within six me) months of the effective date, said building or structure may be completed in accordance with approved plans. Furthermore, upon completion the building may be occupied under a Sortcale of Occupancy for the use for which the building was originally designated, subject thereafter to the provisions of Article 3.00 concerning nonconformities. Any subsequent text or map amendments shall Not affect previously issued valid permits. B. Minimum requirements. The provisions of this ordinance shall be held to be the minimum requirements for the promotion of public health, safety, convenience, comfort, morals, prosperity, and general welfare. C. Relationship to other ordinances or agreements. This ordinance is not intended to abrogate or annul any ordinance, rule, regulation, permit, easement, covenant, or other private agreement Previously adopted, issued, or entered into and not in conflict with the provisions of this ordinance. However, where the regulations of this ordinance are more restrictive or impose higher standards or requirements than other such ordinances, rules, regulations, permits, easements, covenants, or other private agreements, the requirements of this ordinance shall govern. D. Vested right, Nothing in this ordinance should be interpreted or construed to give rise to any permanent vested rights in the continuation of any particular use, district, zoning classification, or permissible activities therein. Furthermore, such rights as may exist through enforcement of this ordinance are hereby declared to be subject to subsequent amendment, change or modification as may be necessary for the preservation or protection of public health, safety, and welfare. E. Continued conformity with yard and bulk regulations. The owner of a bullding or the property on which It is located shall maintain all required setbacks, open space, and other minimum yard and bulk requirements for as long as the building Is in existence. No portion of a lot used in complying with the provisions of this ordinance in connection with an ‘existing or planned building, shall again be used to qualify or justify any other building or structure existing or intended to exist at the same time. F. Division and consolidation of land. No zoning [ot shall hereafter be divided into two (2) or more zoning lots and no portion of any zoning lot shall be sold, unless all zoning lots resulting from each such division or sale conform with all regulations of the zoning district in which the property is located, and further as provided for in City Ordinance, Section 17.5-11. G. Unlawful bulldings, structures, site designs and uses. A building, structure, or use which was not lawfully existing at the time of adoption of this ordinance shall not be made lawful solely by adoption of this ordinance, In case any building, or part thereof, is used, erected, occupied or altered contrary to the provisions of this ordinance, such building or use shall be deemed an unlawful nuisance and may be required to be vacated, torn down or abated by any legal means, and shall not be used or occupied until it has been made to conform to the provisions of this ordinance. Public expenditures toward abating any such nuisance shall become a lien upon the land. H. Voting place. The provisions of this ordinance shail not be construed to interfere with the temporary use of any property as a voting place in connection with a public election.(Ord, No, 93-553, § 2.01, 2-2-1993; Ord. No, 10-1267, 5-3-2010)