[Ord. No. 582 §1, 8-22-2002]
A Board of Adjustment is hereby established in accordance with
Section 89.080, RSMo.
[Ord. No. 582 §2, 8-22-2002; Ord. No. 1341 §61, 8-20-2008]
The Board of Adjustment shall consist of five (5) regular members,
who shall be residents of the City appointed by the Mayor and approved
by the Board of Aldermen. Up to three (3) alternate members may be
appointed to serve in the absence of or the disqualification of the
regular members, all of whom shall be residents of the City appointed
by the Mayor and approved by the Board of Aldermen.
[Ord. No. 582 §3, 8-22-2002; Ord. No. 1341 §62, 8-20-2008]
The term of office of the members of the Board of Adjustment
shall be for five (5) years. Vacancies shall be filled for the unexpired
term of any member whose term becomes vacant. The Mayor and the Board
of Aldermen upon written charges and after public hearing shall remove
members for cause.
[Ord. No. 582 §4, 8-22-2002]
The Board of Adjustment shall elect its own Chairman and Vice
Chairman who shall serve for one (1) year.
[Ord. No. 582 §5, 8-22-2002]
The Board of Adjustment shall adopt from time to time such rules
and regulations as it may deem necessary to carry into effect the
provisions of this Chapter and consistent with Section 89.080 et seq.,
RSMo.
[Ord. No. 582 §6, 8-22-2002]
Meetings shall be held at the call of the Chairman and at such
other times as the Board of Adjustment may determine. Such Chairman,
or in his/her absence the Acting Chairman, may administer oaths and
compel the attendance of witnesses. All meetings of the Board of Adjustment
shall be open to the public. 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 with the City Engineer and shall be a public
record. All testimony, objections thereto and rulings thereon shall
be taken down by a court reporter utilized by the Board of Adjustment
for that purpose.
[Ord. No. 582 §7, 8-22-2002]
Four (4) members of the Board shall constitute a quorum.
[Ord. No. 582 §8, 8-22-2002; Ord. No. 1341 §63, 8-20-2008]
Appeals to the Board of Adjustment on any matter over which
the Board is herein specifically granted jurisdiction may be taken
by any person aggrieved about a decision, by any neighborhood organization
as defined in Section 32.105, RSMo., representing such person, or
by an officer, department or board, other than the Board of Adjustment,
or bureau of the City affected by any decision of an administrative
officer of the City. Such appeal shall be taken within a reasonable
time, as shall be prescribed by the Board of Adjustment by general
rule, by filing with the officer from whom the appeal is taken and
with the Board of Adjustment a notice of appeal specifying the grounds
therefor. The officer from whom the appeal is taken shall forthwith
transmit to the Board of Adjustment all the papers constituting the
record upon which the action appealed is taken.
[Ord. No. 582 §9, 8-22-2002; Ord. No. 1341 §64, 8-20-2008]
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/her that by reason of facts stated in the certificate
a stay would, in his/her opinion, cause imminent peril to life or
property. In such case, proceedings shall not be stayed otherwise
than by a restraining order that may be granted by the Board of Adjustment
or by a court of record on application and proper notice to the officer
from whom the appeal is taken and on due cause shown.
[Ord. No. 582 §10, 8-22-2002]
The Board of Adjustment shall fix a reasonable time for the
hearing of the appeal, give not less than fifteen (15) days' notice
thereof in a newspaper of general circulation, as well as due notice
to the parties in interest (owners or agents of property abutting
or fronting upon the property involved in the appeal) and decide the
same within a reasonable time. At such hearing, any party may appear
in person or be represented by an agent or by attorney.
[Ord. No. 582 §11, 8-22-2002; Ord. No. 1053 §14, 9-13-2006]
A fee shall be paid to the City Clerk at the time the notice
of appeal is filed, which the City Clerk shall submit to the City
Treasurer. The fee shall be as per the fee schedule for services,
permit applications, plan reviews, inspections, rezonings and conditional
uses, which is on file in the office of the City Clerk.
[Ord. No. 582 §12, 8-22-2002; Ord. No. 1341 §65, 8-20-2008]
A.
The
Board of Adjustment shall have the following powers:
1.
To hear and decide appeals where it is alleged there is an error
in any order, requirement, decision or determination made by an administrative
official, which shall include any board or commission acting in an
administrative capacity in the enforcement of this Chapter;
2.
To hear and decide all matters referred to it or upon which it is
required to pass under such ordinance; and
3.
In passing upon appeals, where there are practical difficulties or
unnecessary hardship in the way of carrying out the strict letter
of such ordinance, to vary or modify the application of any of the
regulations or provisions of such ordinance relating to the construction
or alteration of buildings or structures or the use of land so that
the spirit of the ordinance shall be observed, public safety and welfare
secured and substantial justice done.
[Ord. No. 1732 §10, 8-20-2014]
A.
A Request For A Variance.
1.
When an applicant requests some variation in the requirements of Chapter 405 of the Municipal Code of the City of Dardenne Prairie to construct a new wireless support structure or for a substantial modification of a wireless support structure, and where the strict application of Chapter 405 would involve undue hardship, the applicant may request a variance pursuant to this Section 405.940.
2.
In reviewing a requested variance under this Section 405.940, the Board of Adjustment may consider, but is not limited to, the following questions:
a.
Does the hardship result from the strict application of these
regulations?
b.
Is the hardship suffered by the property in question?
c.
Is the hardship the result of the applicant's own action?
d.
Is the requested variance in harmony with the general purpose
and intent of the zoning regulations and does it preserve the spirit?
e.
If the variance is granted, will the public safety and welfare
have been assured and will substantial justice have been done?
f.
If denial of the variance will prohibit or have the effect of
prohibiting the provision of personal wireless services under 47 U.S.C.
§332(C)(7)(B)(i)(II)?
B.
New Wireless Support Structure Or Substantial Modification
Of A Wireless Support Structure. An application for a variance to construct a new wireless support structure, or for a substantial modification of a wireless support structure, shall be made on an application form provided by the City Clerk. Each application shall be filed with the City Clerk and shall be accompanied by the data prescribed on the form and any additional information deemed necessary by the Board of Adjustment. The application shall be accompanied by the fee set forth in the fee schedule, as provided by Section 405.930 of the Municipal Code of the City of Dardenne Prairie, payable to the City to cover the costs of advertising, notification, and other administrative expenses associated with the application. No part of such fee shall be returnable to the applicant.
1.
An application for a variance to construct a new wireless support
structure, or for a substantial modification of a wireless support
structure, shall be submitted to the City Clerk and shall contain
or be submitted concurrently with the following information:
a.
A legal description of the property to be affected, including
one (1) hard printed copy and one (1) electronic copy in a Microsoft-Word-compatible
format;
b.
A scaled map of such property, correlated with the legal description
and clearly showing the property's location;
c.
The names, addresses and telephone numbers of the applicant(s),
all the fee owners of such property and their agents, if any, and
copies of the deeds on file with the office of the St. Charles County
Recorder of Deeds evidencing such ownership;
d.
A copy of a lease, letter of authorization or other agreement
from the property owner evidencing the applicant's right to pursue
the application;
e.
Date of filing with the Board of Adjustment;
f.
The present zoning, proposed change of zoning, if any, and proposed
use of such property;
g.
The names and mailing addresses of property owners with property
within an area determined by lines drawn parallel to and three hundred
(300) feet distant from the boundaries of the property(ies) to be
affected;
h.
Signature(s) of applicant(s) and owner(s) certifying the accuracy
of the required information. If the owner(s) of the property or the
applicant(s) are a trust or business entity, then proof of the authority
of the party executing the application must be provided by way of
resolution, minutes, bylaws, articles of incorporation or some other
reasonable means;
j.
Photographs or other pictorial representations of the new wireless
support structure, or the substantial modification of a wireless support
structure, as viewed from neighboring properties to demonstrate if
the wireless support structure is harmonious with the appearance and
character of the neighborhood;
l.
The type of wireless facilities, infrastructure or technology
to be used by the applicant; and
m.
Solely with respect to an application for a new wireless support
structure, a statement by the applicant that it conducted an analysis
of available collocation opportunities on existing wireless support
structures within the same search ring defined by the applicant, solely
for the purpose of confirming that an applicant undertook such an
analysis.
C.
Procedure.
1.
Within one hundred twenty (120) calendar days of receiving an
application for a variance to construct a new wireless support structure,
or for a substantial modification of a wireless support structure,
or within such additional time as may be mutually agreed to by an
applicant and the Board of Adjustment, the Board of Adjustment shall:
a.
Review the application in light of its conformity with this Section 405.940;
(1)
An application is deemed to be complete unless
the City Clerk notifies the applicant in writing, within thirty (30)
calendar days of submission of the application, of the specific deficiencies
in the application which, if cured, would make the application complete.
(2)
Upon receipt of a timely written notice that an
application is deficient, an applicant may take thirty (30) calendar
days from receiving such notice to cure the specific deficiencies.
If the applicant cures the deficiencies within said period of thirty
(30) calendar days, the application shall be reviewed and processed
by the Board of Adjustment within one hundred twenty (120) calendar
days from the initial date the application was received. If the applicant
requires a period of time beyond thirty (30) calendar days to cure
the specific deficiencies, the one-hundred-twenty-calendar-day deadline
for the Board of Adjustment to review the application, make the final
decision, and advise the applicant in writing of its final decision,
shall be extended by the same period of time.
b.
Make its final decision to approve or disapprove the application;
c.
Make findings of fact as to whether or not the standards described in this Section 405.940 have been met by the applicant. The burden of proof shall be on the applicant to prove that such standards have been met by the applicant. Thereafter, the Board of Adjustment shall either:
d.
Advise the applicant in writing of its final decision.
2.
If the Board of Adjustment fails to act on an application for
a variance to construct a new wireless support structure, or for a
substantial modification of a wireless support structure, within the
one-hundred-twenty-calendar-day review period, or within such additional
time as may be mutually agreed to by an applicant and the Board of
Adjustment, the application shall be deemed approved.
[1]
Editor's Note: Former Section 405.940, Powers Relating
to Area Variances, adopted 8-22-2002 by Ord. No. 582 §13, was
repealed 8-20-2008 by Ord. No. 1341 §66.
[1]
Editor's Note: Former Section 405.945, Powers Relating to
Use Variances, adopted 8-22-2002 by Ord. No. 582 §14, was repealed
8-20-2008 by Ord. No. 1341 §67.
[2]
Editor's Note — Ord. no. 1341 §§66 —
67, adopted August 20, 2008, repealed sections 405.940 "powers relating
to area variances" and 405.945 "powers relating to use variances"
in their entirety. Former sections 405.940 — 405.945 derived
from ord. no. 582 §§13 — 14, 8-22-2002. At the editor's
discretion, these sections have been reserved for the city's future
use.
[Ord. No. 582 §15, 8-22-2002; Ord. No. 1341 §68, 8-20-2008]
Every variance granted or denied by the Board of Adjustment
shall be accompanied by written findings of fact based on sworn testimony
and evidence specifying the reason for granting or denying the variance.
[Ord. No. 582 §16, 8-22-2002]
The concurring vote of four (4) members of the Board of Adjustment
shall be necessary to reverse any order, requirement, decision or
determination of the Code Enforcement Officer or other officer or
board of the City or to decide in favor of the application on any
matter upon which is required to pass under this Chapter or to grant
any variance to this Chapter.
[Ord. No. 582 §17, 8-22-2002; Ord. No. 1341 §69, 8-20-2008]
Any person or persons jointly or severally aggrieved by any
decision of the Board of Adjustment of the City, any neighborhood
organization as defined in Section 32.105, RSMo., representing such
person or persons or any officer, department, board or bureau of the
municipality may present to the St. Charles County Circuit Court 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 of Adjustment.
