[Ord. No. 80-22 Art. VII § 1, 12-2-1980]
There is hereby created a Board of Adjustment with the powers
and duties as hereinafter set forth.
[Ord. No. 80-22 Art. VII § 2, 12-2-1980; Ord. No. 2001-63 § 1, 11-13-2001; Ord.
No. 2022-01, 1-11-2022]
A.
The Board of Adjustment shall be composed of five (5) members, freeholders,
citizens of the City of Lexington, each appointed by the Mayor with
the approval of the City Council for a term of five (5) years, the
original appointments to the Board to be made in accordance with the
State Statutes for the following terms:
B.
All appointments thereafter shall be for a term of five (5) years.
C.
The Board of Adjustment members, once appointed, can thereafter be
removed only for cause, upon written charges, and after a public hearing.
Vacancies shall be filled by the appointing authority for the unexpired
term of any member whose office becomes vacant. The members shall
not serve more than two (2) complete terms consecutively, however,
they may be reappointed after a one-year absence.
D.
The Board shall elect a Chairman and an Acting Chairman from its
membership who shall serve for a term of office of one (1) year.
[Ord. No. 80-22 Art VII § 3, 12-2-1980; Ord. No. 2022-01, 1-11-2022]
The Board of Adjustment shall adopt rules of procedure in accordance
with the provisions of this Article and the State Statutes governing
their operation. Meetings of the Board of Adjustment shall be held
at the call of the Chairman and at such other times as the Board of
Adjustment may determine after public notice consistent with Chapter
610, RSMo. Such Chairman or, in his absence, the Acting Chairman,
may administer oaths and compel the attendance of witnesses. All meetings
of the Board of Adjustment 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 of Adjustment and shall be public
record. All testimony, objections thereto and rulings thereon, shall
be taken down by a recorder employed by the Board of Adjustment for
that purpose.
[Ord. No. 80-22 Art VII § 4, 12-2-1980; Ord. No. 95-27 § 1, 9-26-1995]
A.
Powers Relative to Interpretations. To hear and
decide appeals where it is alleged there in an error in any order,
requirement, decision or determination made by the Building Inspector
or any other administrative official in the interpretation and enforcement
of this Chapter.
B.
Powers Relative to Social Exceptions. To hear and
decide, upon appeal, applications for a Special Exception to the terms
of this Chapter under the following circumstances and conditions.
1.
To permit the extension of a district where the boundary line of
a district divides a platted lot in single ownership as shown of record.
2.
To interpret the provisions of this Chapter where the street layout
actually on the ground varies from the street layout as platted or
as shown on the map fixing the several districts, which map is a part
of this Chapter as if fully set out herein and on file in the City
Clerk's office.
3.
To grant exceptions to the off-street parking requirements set forth in Article V when it is determined that the size or shape of the lot to be built on is such that off-street parking provisions could not be complied with and that the proposed use will not create undue traffic congestion in the adjacent streets.
C.
Powers Relative to Variances. Where by reason of
exceptional narrowness, shallowness, or shape of a specific piece
of property at the time of the original adoption of this Ordinance,
or by reasons of exceptional topographical conditions or other extraordinary
or exceptional situation or condition of a specific piece of property,
which condition is not generally prevalent in the area, the strict
application of this Chapter would result in peculiar and exceptional
practical difficulties to or exceptional and demonstrable, undue hardships
upon the owner of such property to the effect that it is an unreasonable
deprivation of use as distinguished from the mere grant of a privilege,
the Board of Adjustment is hereby empowered to authorize upon an appeal
in specific cases a variance from the terms of this Chapter, as will
not be a substantial detriment to the public good, and will not substantially
impair the purpose, intent and integrity of the zone plan, and substantial
justice will be done. The Board of Adjustment may establish such requirements
relative to such property as would carry out the spirit of this Chapter.
In exercising the above mentioned powers, the Board of Adjustment
may, in conformance with the provisions of this Chapter, reverse or
affirm wholly or partly, or may modify the order, requirement, decisions,
or determination appealed from and may make such order, requirement,
decision, or determination as ought to be made, and to that end shall
have all the powers of the officer from whom the appeal is taken.
In considering all the appeals from rulings made under this Chapter,
the Board of Adjustment shall, in making its findings on any specific
case, determine the effect of the proposed change upon the supply
of light and air to adjacent property, upon the congestion in the
public streets, upon the public safety from fire and other hazards,
upon established property values within the surrounding area, and
upon other factors relating to the public health, safety, comfort,
morals, and general welfare of the people of the City of Lexington.
It is further provided, that in exercising its power to grant Special
Exceptions and Variances, the Board of Adjustment may impose any reasonable
condition which shall be necessary to protect surrounding property
values and to promote the health, safety, morals, and general welfare.
The concurring vote of four (4) members of the Board of Adjustment
shall be necessary to reverse any order, requirement, decision or
determination of any such administrative official or to decide in
favor of the applicant on any matter upon which the Board of Adjustment
is required to pass or to effect any variation of this Chapter.
Every ruling made upon any appeal to the Board of Adjustment
shall be accompanied by a written finding of fact based on the testimony
received at the hearing afforded by the Board of Adjustment and shall
specify the reason for granting or denying the appeal.
[Ord. No. 81-7 § 3, 4-7-1981]
Appeals to the Board of Adjustment may be taken by any person
aggrieved or any officer, department, board or bureau of the City
of Lexington affected by any decision of the Zoning Administrator.
The applicant or petitioner shall, in addition to the foregoing,
pay to the City Clerk the cost of legal publication.
Appeals to the Board of Adjustment shall be taken within thirty
(30) days from the date of the decision by filing with the Building
Inspector or Zoning Administrator from whom the appeal is taken and
with the City Clerk a notice of appeal specifying the grounds thereof,
and by paying a filing fee of one hundred dollars ($100.00) at the
office of the City Clerk at the time the notice is filed. No portion
of the filing fee shall be refunded and any expenditures in excess
of the one hundred dollars ($100.00) incurred by the Board of Adjustment
incidental to the processing of the appeal shall be billed to the
applicant or petitioner.
The officer from whom the appeal is taken shall forthwith transmit
to the Board of Adjustment certified copies of all papers constituting
the record of said matter together with a copy of the ruling or orders
from which the appeal is 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 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 case proceedings shall not be stayed otherwise than by a restraining
order which may be granted by the 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 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 hearing any party may appear in person or by agent or by
attorney.
The Board of Adjustment shall not rehear any appeal once decided
unless it is shown by the appellant that all pertinent facts of the
case were not brought before the Board of Adjustment at the public
hearing, and that for some reason he was prevented from presenting
such facts; or that the facts of the case may have materially changed
since the public hearing.
[Ord. No. 80-22 Art. VII § 6, 12-2-1980]
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 City of Lexington, may present to the Circuit Court
of the County 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 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 of Adjustment. 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 realtors attorney,
but shall not be less than ten (10) days and may not stay proceedings
upon the decision appealed from, but the court may, on application,
on notice to the Board and on due course 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
the 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 his finding 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.
