City of Fredericktown, MO Article IX Board Of Adjustment

Section 405.260 Zoning Board Of Adjustment.

[R.O. 2013 § 405.230; Ord. No. 11-34 § 1, 7-25-2011; Ord. No. 11-36 § 1, 8-8-2011; Ord. No. 13-05 § 1, 1-14-2013]

A. A Board of Adjustment is hereby created. The word "Board," when used in this Section, shall be construed to mean the Board of Adjustment. The Board shall consist of five (5) members, who shall be residents of the City except as provided in Section 305.410, RSMo., appointed by the Mayor and approved by the Board of Aldermen, each to be appointed for a term of five (5) years, excepting that when the Board shall first be created, one (1) member shall be appointed for a term of five (5) years, one (1) for a term of four (4) years, one (1) for a term of three (3) years, one (1) for a term of two (2) years, and one (1) for a term of one (1) year. Three (3) alternate members may be appointed to serve in the absence of or in the disqualification of the regular members. All members and alternates shall be removable for cause by the Mayor and Board of Aldermen upon written charges and after public hearing. Vacancies shall be filled for the unexpired term only of any member whose term becomes vacant.

B. The Board of Adjustment shall adopt rules for the conduct of its business, establish a quorum and procedure, and keep a public record of all findings and decisions. The Board shall elect its own Chairman and Vice Chairman who shall serve for one (1) year. 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.

C. 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 question, or, if absent or failing to vote, indicating such facts, 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 reporter employed by the Board for that purpose.

D. An appeal may be taken to the Board of Adjustment by any person aggrieved, by any neighborhood organization as defined in Section 32.105, RSMo., representing such person, or by any officer, department, board or bureau of the City affected by a decision of the Zoning Administrator. Such appeal shall be taken within a reasonable time as prescribed by the Board by general rule by filing with the Zoning Administrator and with the Board of Adjustment a notice of appeal specifying the grounds thereof and by depositing with the Zoning Administrator a cost deposit in the amount required by Section 405.240 to cover the cost of publication of notices and hearing costs. The Zoning Administrator shall forthwith transmit to the Board all papers constituting the record from which the action appealed from is taken.

E. An appeal stays all proceedings in furtherance of the action appealed from, unless the Zoning Administrator 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 which may be granted by the Board of Adjustment or by a court of record on application or notice to the Zoning Administrator and on due cause shown. The Board of Adjustment shall fix a reasonable time for the hearing of the appeal, give not less than fifteen (15) days' public notice thereof in a newspaper of general circulation, 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.

F. 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 the Zoning Administrator in the enforcement of this Chapter, and may affirm or reverse, in whole or part, said decision of the Zoning Administrator.

2. To hear and decide all matters referred to it or upon which it is required to pass under this Chapter.

3. To hear requests for variances from the literal provisions of the Zoning Ordinance in instances where strict enforcement of the Zoning Ordinance would cause undue hardship due to circumstances unique to the individual property under consideration, and grant such variances only when it is demonstrated that such action will be in keeping with the spirit and intent of the provisions of the Zoning Ordinance. The Board of Adjustment shall not permit, as a variance, any use of a district that is not permitted under the ordinance. The Board of Adjustment may impose conditions in the granting of a variance to ensure compliance and to protect adjacent property.

4. To hold public hearings on and decide the following exceptions to or variances to this Chapter.

a. To permit the extension of a district where the boundary line thereof divides a lot of record held in a single ownership at the time of adoption of this Chapter.

b. 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 where the street layout on the ground varies from the street layout as shown in this map.

c. To permit the reconstruction of a non-conforming building which has been damaged by explosion, fire, act of God, or the public enemy to the extent of less than seventy-five percent (75%) of its fair market value when the Board shall find some compelling public necessity requiring the continuance of the non-conforming use, but in no case shall such a permit be issued if its primary function is to continue a monopoly.

d. Vary the yard regulations where there is an exceptional or unusual physical condition of a lot, not generally prevalent in the neighborhood, which condition when related to the yard regulations of this Chapter would prevent a reasonable or sensible arrangement of buildings on the lot.

e. Vary the parking regulations where it is conclusively shown that the specific use of a building would make unnecessary the parking spaces otherwise required by this Chapter, or where it can be conclusively shown that adequate off-street parking to serve a particular use has been provided by or is controlled by the municipality.

5. In exercising the above-mentioned powers, the Board of Adjustment may reverse or affirm, wholly or partly, or may modify the order, requirement, decision 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 Zoning Administrator. In considering all appeals to the provisions of this Chapter, the Board shall, before making any finding in a specific case, first determine that the proposed change will not constitute a change in the Zoning District Map and will not impair an adequate supply of light and air to adjacent property, or increase congestion in public streets, or increase the danger of fire, or materially diminish or impair established property values within the surrounding area, or in any other respect impair the public health, safety, comfort, morals and welfare of the City of Fredericktown. Every change granted or denied by the Board shall be accompanied by a written finding of fact, specifying the reason for granting or denying the variation. The decision of the Board shall be made a part of any building permit in which variation is allowed. The concurring vote of four (4) members of the Board shall be necessary to reverse any order, requirement, decision, or determination of the Zoning Administrator, or to decide in favor of the applicant on any matter upon which it is required to pass under this Chapter or to effect any variation in this Chapter.

G. Any person or persons jointly or severally aggrieved by any decision of the Board of Adjustment, 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 Circuit Court of Madison County 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. Upon 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 materials 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/her 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 Sections shall have preference over all other civil actions and proceedings.

H. Requests For Variance.

1. A request for variance shall be filed in writing, in duplicate, with the City Clerk on a form provided by the Board of Adjustment accompanied by such data and information as so prescribed including, but not limited to:

a. An ownership list, obtained from County records, listing the legal description and the name and address of the owners of all property located within one hundred eighty-five (185) feet distant from the boundaries of the property included in the application.

b. A filing fee as set forth in Code Section 405.240. A separate filing fee shall be required for each request.

c. The applicant shall submit a plat plan, in duplicate, drawn to scale and showing the lot or lots included in the application, the structures existing thereon and the structures contemplated necessitating the variance requested. All appropriate dimensions and any other information that would be helpful in the consideration of the request should be included.

d. The applicant shall submit a statement in writing presenting the advantages and disadvantages to the property owner and to the general public of granting the variance requested, indicating specifically the enforcement provisions of the zoning regulations from which the variance is requested; and outlining in detail the manner in which it is believed that this request will meet each of the conditions (findings) as set forth in Susbsection (H)(6) below.

2. Requests shall be completed in their entirety as specified in the request for variance form. If any item is felt by the applicant to be inapplicable to the proposed action, the applicant shall provide a written explanation of why such item is inapplicable and thus not completed;

3. Requests are not deemed filed until all required items on the request for variance form are met or written explanation is submitted;

4. Following the submittal of a request for variance, City staff shall have fourteen (14) calendar days to respond to the request submittal and determine its completeness; and

5. If a request is incomplete, it shall not be addressed by the Board on any public meeting agenda until all requirements are met.

6. A request for variance may be granted upon a finding on the record by the Board of Adjustment that all of the following conditions have been met.

a. That the applicant's property was acquired in good faith and where by reason of exceptional narrowness, shallowness or shape of this specific piece of property at the time of the effective date of the City's zoning regulations or where by reasons of exceptional topographical conditions or other extraordinary or exceptional circumstances that the use of this property in the manner similar to that of other property in the zoning district where it is located will result in an unnecessary hardship.

b. The variance requested arises from such condition which is unique to the property in question and which is not ordinarily found in the same zone or district and is not created by an action or actions of the property owner or applicant.

c. The granting of the permit for the variance will not adversely affect the rights of the adjacent property owners.

d. The strict application of the provisions of the zoning regulations of which the variance is requested will constitute an unnecessary hardship on the property owner represented in the application.

e. The variance desired will not adversely affect the public health, safety, morals, order, convenience, prosperity or general welfare.

f. The granting of the variance will not be opposed to the general spirit and intent of the zoning regulations.

7. In granting a variance, the Board of Adjustment may impose such conditions, safeguards and restrictions upon the premises benefited by the variance as may be necessary to reduce or minimize any potentially injurious effect of such variance upon any matter which it is required to pass under these regulations or to affect any variation in such regulation.

I. Performance Bond. The Board of Adjustment may require a performance bond as security for the faithful performance and payment of all of the applicant's obligations concerning the installation of improvements required as a condition of the grant of a variance. The amount of the bond shall be based on a general estimate of cost for the improvements as determined by the Board of Adjustment and shall be enforceable by or payable to the City of Fredericktown in the sum equal to the cost of constructing the required improvements. In conjunction with, or in lieu of, the performance bond requirement, the Board of Adjustment may specify a completion date deadline such that the variance grant expires upon failure to complete the required improvements by the specified time.