[Ord. No. 1997-308 §I Art.
II, 1-6-1998]
There is hereby created within and for the City a Board of Adjustment
with the powers and duties as hereinafter set forth.
[Ord. No. 1997-308 §I Art.
II(1), 1-6-1998]
A. The Board
of Adjustment shall consist of five (5) members who shall be residents.
The membership of the first (1st) Board appointed shall be for three
(3) members appointed for a one (1) year term and two (2) members
for a two (2) year term. Thereafter, members shall be appointed for
terms of five (5) years each.
1. The
Board shall elect its own Chairman who shall serve for one (1) year.
2. All
members shall be removable for cause by the appointing authority upon
written charges and after public hearings.
3. Vacancies
shall be filled for the unexpired term of any member whose term becomes
vacant.
[Ord. No. 1997-308 §I Art.
II(2), 1-6-1998]
The Board shall adopt rules in accordance with the provisions
of this Chapter. Meetings of the Board shall be held at the call of
the Chairman and at such other times as the Board may determine. The
Chairman, or in his/her absence the Acting Chairman, may administer
oaths and compel the attendance of witnesses. All meetings of the
Board shall be open to the public. The 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 City Clerk and shall
be a public record. The concurring vote of four (4) members of the
Board shall be necessary to reverse any order, requirement, decision
or determination of any Administrative Official, or to decide in favor
of the applicant on any matter upon which it is required to pass under
any such ordinance, or to effect any variation in such ordinance.
[Ord. No. 1997-308 §I Art.
II(3), 1-6-1998]
A. Appeal
from action taken by the Administrative Officer shall be taken in
the following manner:
1. All
appeals shall be taken within sixty (60) days of the date.of the action
which is appealed.
2. Appeals
from the enforcement and interpretation of this Chapter, signed by
the appellant, shall be addressed to the Board of Adjustment and presented
to the Administrative Officer. A fee of fifty dollars ($50.00) shall
be paid to the City for each appeal to cover costs of advertising
and administrative costs. The appeal shall contain or be accompanied
by such legal descriptions, maps, plans and other information so as
to completely describe the decisions or interpretation being appealed
and the reasons for such appeal.
3. The
Administrative Officer shall transmit to the Board of Adjustment the
appeal and all papers constituting the record upon which the action
appealed was taken. The Chairman of the Board of Adjustment shall
schedule a hearing to be held within sixty (60) days from the filing
of the appeal. Public notice of the hearing shall be published in
a newspaper of general circulation in the town at least once each
week for two (2) successive weeks prior to the hearing. The Administrative
Officer shall post notice on the property involved for a period of
one (1) week prior to the hearing.
4. An appeal
stays all proceedings in furtherance of the action appealed from unless
the Administrative Officer certifies to the Board of Adjustment that
by reason of facts in the record a stay would, in his/her opinion,
cause imminent peril to life or property, in which case proceedings
shall not be stayed otherwise than by a court order.
[Ord. No. 1997-308 §I Art.
II(4), 1-6-1998; Ord. No. 2013-448 §1, 10-15-2013]
A. Applications for variances to this Title shall be processed in the
following manner:
1. An application for a variance from the terms of this Title signed
by the applicant shall be addressed to the Board of Adjustment and
presented to the Administrative Officer.
2. A fee of seventy-five dollars ($75.00) shall be paid to the City
for each application to cover the costs of advertising and administrative
costs. The application shall contain or be accompanied by such legal
descriptions, maps, plans and other information so as to completely
describe the proposed use and existing conditions.
3. The Administrative Officer shall review the application and determine
that sufficient data is contained to adequately describe the situation
to the Board of Adjustment. If the data is not adequate, the Administrative
Officer shall return the application to the applicant for additional
information. Completed applications shall be forwarded to the Board
of Adjustment.
[Ord. No. 1997-308 §I Art.
II(5), 1-6-1998]
A. The Board
of Adjustment shall approve or deny appeals and variances in the following
manner:
1. The
Chairman of the Board of Adjustment shall schedule a public hearing
to be held within sixty (60) days after an application is filed. Public
notice of the hearing shall be published in a newspaper of general
circulation in the City at least once a week for two (2) successive
weeks prior to the hearing. The Administrative Officer shall post
notice on the property involved for a period of one (1) week prior
to the hearing.
2. The
Board of Adjustment shall review the uses listed in the specific district
regulations as "Uses Permitted on Review". These are so classified
because they more intensely dominate the area in which they are located
than do other uses permitted in the district; however, the nature
of such uses may make it desirable that they be permitted to locate
therein. The following procedure is established to integrate properly
the uses permitted on review with the other land uses located in the
district. These uses shall be reviewed and authorized or rejected
under the following procedure:
a. An
application shall be filed with the Board of Adjustment for review.
Said application shall show the location and intended use of the site,
the names of all the property owners, and existing land uses within
two hundred (200) feet, and any other material pertinent to the request
which the Board of Adjustment may require.
b. The
Board of Adjustment shall hold one (1) or more public hearings thereon.
c. The
Board of Adjustment, within sixty (60) days of the date of application,
shall study the effect of such proposed building or use upon the character
of the neighborhood, traffic conditions, public utilities, and other
matters pertaining to the general welfare and authorize or deny the
issuance of a permit for the use of land or buildings as requested.
[Ord. No. 1997-308 §I Art.
II(6), 1-6-1998]
A. The Board
of Adjustment shall approve or deny the application for variance following
the public hearing. Before any variance is granted, the Board of Adjustment
must find that all of the following criteria are met:
1. Special
circumstances exist which are peculiar to the applicant's land, structure
or building and do not generally apply to the neighboring lands, structures
or buildings in the same district or vicinity.
2. Strict
application of the provisions of this Chapter would deprive the applicant
of reasonable use of the land, structure or building in a manner equivalent
to the use permitted to be made by other owners of their neighboring
lands, structures or buildings in the same district.
3. The
special circumstances are not the result of action of the applicant
taken subsequent to the adoption of this Chapter:
4. Relief,
if approved, will not cause substantial detriment to the public welfare
or impair the purposes and intent of this Chapter.
[Ord. No. 1997-308 §I Art.
II(7), 1-6-1998]
A. The following
rules will be considered by the Board of Adjustment when approving
or denying a variance:
1. Financial
disadvantages to the property owner shall not constitute conclusive
proof of unnecessary hardships within the purpose of zoning.
2. The
Board does not possess the power to grant a variance permitting a
zoned use of land or building that is not permitted as a principal
use or structure, accessory use or structure in the district involved.
3. In granting
a variance, the Board may attach thereto any conditions and safeguards
it deems necessary or desirable in furthering the purposes of this
Chapter. Violation of any of these conditions or safeguards shall
be deemed a violation of this Chapter.
4. Unless
otherwise specified at the time the variance is granted, the variance
applies to the subject property and not to the individual who applied.
Consequently, the variance is transferable to any further owner of
the subject property but cannot be transferred by the applicant to
a different site.
5. A variance
shall continue for an indefinite period of time unless otherwise specified
at the time the variance is granted, except that when a variance has
not been used within one (1) year after the date it was granted, the
variance shall be canceled by the Administrative Official and written
notices shall be given to the property owner.
[Ord. No. 1997-308 §I Art.
II(8), 1-6-1998]
Any person or persons jointly or severally aggrieved by any
decision of the Board of Adjustment or any officer, department, board
or bureau of the municipality may present to the Circuit Court of
the County or City in which the property affected is located a petition,
duly verified, setting forth that such decision is illegal, in whole
or in part, specifying the grounds of the illegality. Such petition
shall be presented to the court within thirty (30) days after the
filing of the decision in the office of the Board. Upon the presentation
of such petition the court may allow a writ of certiorari directed
to the Board of Adjustment to review such decision of the Board of
Adjustment and shall prescribe therein the time within which a return
thereto must be made and served upon the relator's attorney, which
shall not be less than ten (10) days and may be extended by the court.
The allowance of the writ shall not stay proceedings upon the decision
appealed from, but the court may, on application, on notice to the
Board and on due cause shown, grant a restraining order. The Board
of Adjustment shall not be required to return the original papers
acted upon by it, but it shall be sufficient to return certified or
sworn copies thereof or of such portions 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. If, upon the hearing,
it shall appear to the court that testimony is necessary for the proper
disposition of the matter, it may take additional evidence or appoint
a referee to take such evidence as it may direct and report the same
to the court with higher findings of fact and conclusions of law,
which shall constitute a part of the proceedings upon which a determination
of the court shall be made. The court may reverse or affirm, wholly
or partly, or may modify the decision brought up for review. Costs
shall not be allowed against the Board unless it shall appear to the
court that it acted with gross negligence, or in bad faith, or with
malice in making the decision appealed from. All issues in any proceedings
under this Chapter shall have preference over all other civil actions
and proceedings.