[Ord. No. 646, §2.; Ord. No. 1099 §§2 — 3, 5-17-1994]
The Board of Adjustment is hereby established. The word "board", when used in this article, shall be construed to mean the Board of Adjustment. The Board shall consist of five (5) members who shall be City residents appointed by the Mayor and approved by the Board of Aldermen. The term of office of the members of the Board of Adjustment shall be for five (5) years; except, that the five (5) members first appointed shall serve respectively for terms of one (1) year, two (2) years, three (3) years, four (4) years and five (5) years each. Not more than two (2) members of the Board shall be members of the planning and zoning commission. Vacancies shall be filled for the unexpired term only. Members shall be removed for cause by the Mayor and Board of Aldermen upon written charges and after public hearing. Three (3) alternate members may be appointed to serve in the absence of or the disqualification of the regular members.
[Ord. No. 646, §2.; Ord. No. 1099 §§2 — 3, 5-17-1994]
The Board of Adjustment shall elect its own chairman, vice-chairman, and secretary who shall serve for one (1) year. The Board shall adopt from time to time such rules and regulations as it may deem necessary to carry into effect the provisions of this chapter.
[Ord. No. 928 §2; Ord. No. 1099 §§1 — 3, 5-17-1994]
Meetings for the Board of Adjustment shall be held at the call of the chairman and at such other times as the Board may determine. Such chairman, or in his 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 Board and shall be a public record. All testimony, objections thereto and rulings thereon shall be taken down by a court reporter employed by the Board for that purpose. The cost of the court reporter and legal publications shall be taxed against the applicant, who shall pay a deposit in the amount of two hundred dollars ($200.00) against such cost at the time of the filing of the application.
Any application fees or deposits required by the City in conjunction with any application for action under this section is intended to defray the cost of review, analysis and consideration of same. Such costs may include, but not be limited to, legal or informational publications, signage, legal reviews, engineering and architectural reviews, ordinance preparation, hearings, surveys, studies and any other direct, indirect or third party costs. In the event that such fees are insufficient to cover such total costs for a specific application, the applicant shall deposit with the City such additional sums to cover the entire cost of such review upon request by the City.
[Ord. No. 646, §2]
Appeals to the board of adjustment may be taken by any person aggrieved or by an officer, department, board or bureau of the city affected by any decision of the building commissioner regarding provisions of this chapter. Such appeal shall be taken within a reasonable time, as shall be prescribed by the board by general rule, by filing with the building commissioner and with the board a notice of appeal specifying the grounds thereof. The building commissioner shall forthwith transmit to the board all the papers constituting the record upon which the action appealed from is taken.
An appeal stays all proceedings in furtherance of the action appealed from, unless the building commissioner certifies to the board, after the notice of appeal shall have been filed with him, that, by reason of fact 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 or by a court of record on application on notice to the building commissioner and on due cause shown.
The board 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 the hearing, any party may appear in person or by agent or by attorney.
[Ord. No. 646 §2; Ord. No. 929 §2; Ord. No. 1499 §1, 12-5-2000]
The board of adjustment shall have the following duties and powers:
To hear and decide appeals where it is alleged there is an error in any order, requirement, decision or determination made by the building commissioner in the enforcement of this chapter.
To permit the erection and use of a building or the use of premises in any location for a public service corporation or for public utility purposes necessary to the public convenience or welfare.
To interpret the provisions of this Chapter in such a way as to carry out the intent and purpose of the plan, as shown upon the zoning district map fixing the several districts, where the street layout actually on the ground varies from the street layout as shown on the map.
Permit a variation in the yard requirements of any zoning district, or the setback line requirements for location or placement of signs near highway rights-of-way, or the building or setback lines for major highways as provided by law where there are practical difficulties or unnecessary hardships in the carrying out of these provisions due to an irregular shape of the lot, topographic or similar conditions, provided such variation will not seriously affect any adjoining property or the general welfare.
Permit a variation in the sign requirements of any zoning district for business signs only up to thirty percent (30%) increase in sign size and up to twenty-five percent (25%) increase in height where the petitioner files a plot plan and scaled layout design in duplicate and demonstrates that otherwise there would be a hardship to the public seeking this particular commodity or service and where the petitioner demonstrates that the increased sign size and height would not be injurious to the neighborhood or otherwise detrimental to the public welfare. In the case of a pole sign, the measurement as the basis for a variation in height shall begin at the point of the pole which is at the elevation of the adjacent road pavement. In making its decision the Board must be satisfied that the granting of such variance will not merely serve as a convenience to the applicant but will alleviate such demonstrable and unusual hardship or difficulty, which is unique to the petitioner in his use, so great as to warrant a variation from the sign regulations as established by this Code and at the same time place conditions upon such variance if necessary so that the surrounding property will be properly protected.
Authorize, upon appeal, a variation in the use provisions of this Chapter whenever a property owner can show that a strict application of the terms of this Chapter relating to the use, construction or alteration of buildings or structures, or the use of land, will impose upon him practical difficulties or particular hardships. Such variations of the strict application of the terms of this Chapter as are in harmony with its general intent and purpose may be authorized only when the Board is satisfied that the granting of such variation will not merely serve as a convenience to the applicant, but will alleviate some demonstrable and unusual hardship or difficulty so great as to warrant a variation from the comprehensive plan or any zoning ordinance passed or enacted by the Board of Aldermen, and at the same time the surrounding property will be properly protected.
[Ord. No. 646 §2]
Any person or persons jointly or severally aggrieved by any decision of the board of adjustment may present to the circuit court of the county a petition duly verified, setting forth that such decision is illegal, in whole or in part, and specifying the grounds of illegality. Such petition shall be presented to the court within thirty 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 to review such decision of the board and shall prescribe therein the time within which a return thereto must be made and served upon the relator's attorney, which shall be not less than ten 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 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 evidence or appoint a referee to take such evidence as it may direct and report the same to the court with his findings of fact and conclusions of law, which shall constitute a part of the proceedings upon which the 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, in bad faith or with malice in making the decision appealed from.