A Board of Adjustment is hereby created, consisting of five members, each to be appointed for a term of three years, said members to be nominated by the Mayor and approved by the City Commission by ordinance for the appointment. Members are removable for cause by the City Commission, upon written charges and after public hearing. Vacancies shall be filled for the unexpired term of any member whose term becomes vacant, in the same year. The Board of Adjustment shall adopt rules in accordance with the provisions of §§18-10 to 18-14 of this chapter or any amendment thereto. Meetings of the Board shall be held at the call of the chairman and at such times as the Board may determine. The chairman, or in his absence the acting chairman, may administer the 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, show the vote of each member upon each question or if absent or failing to vote, indicate such facts, and shall keep a record 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.
The Board of Adjustment shall have the power to:
1.
Hear and decide appeals if it is alleged there is an error in any
order, requirement, decision or determination made by an administrative
official in the enforcement of any zoning ordinance.
2.
Hear and decide special exceptions to the zoning ordinance to allow
a use, or a specifically designated element associated with a use,
which is not permitted by right in a particular district because of
potential adverse effect, but which if controlled in the particular
instance as to its relationship to the neighborhood and to the general
welfare, may be permitted by the Board of Adjustment, where specifically
authorized by the zoning ordinance, and in accordance with the substantive
and procedural standards of the zoning ordinance;
3.
Authorize in specific cases a variance from the terms, standards and criteria that pertain to an allowed use category within a zoning district as authorized by the zoning ordinance when such cases are shown not to be contrary to the public interest if, owing to special conditions, a literal enforcement of the provisions of the ordinance will result in unnecessary hardship and so that the spirit of the ordinance shall be observed and substantial justice done; provided, however, the Board shall have no power to authorize variance as to use except as provided by Subsection 4 of this section.
4.
Hear and decide oil and/or gas applications or appeals unless otherwise provided by municipal ordinance. The Board of Adjustment shall be required to make the findings prescribed by §18-14 of this article in order to grant a variance as to use with respect to any such application or appeal.
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Exceptions and/or variances may be allowed by the Board of Adjustment only after notice and hearing as provided in §18-15 of this article. The record of the meeting at which the variance or special exception was granted shall show that each element of a variance or special exception was established at the public hearing on the question, otherwise said variance or special exception shall be voidable on appeal to the District Court.
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1.
When exercising the powers provided for in §18-11 of this article, the Board of Adjustment, in conformity with the provisions of the ordinance, may reverse or affirm, in whole or in part, or modify the order, requirement, decision, or determination from which appealed and may make such order, requirement, decision, or determination as ought to be made.
2.
The concurring vote of at least four members of the Board of Adjustment shall be necessary to reverse any order, requirement, decision, or determination being appealed from, or to decide in favor of the applicant, or to decide any matter which may properly come before it pursuant to the zoning ordinance and §18-11 of this article.
The Board of Adjustment is authorized to make special exceptions
to specific uses allowed within each zoning category according to
the zoning ordinance in appropriate cases and subject to appropriate
conditions and safeguards in harmony with its general purpose and
intent and only in accordance with general or specific provisions
contained in the zoning ordinance.
A variance from the terms, standards and criteria that pertain
to an allowed use category within a zoning district as authorized
by the zoning ordinance may be granted, in whole, in part, or upon
reasonable conditions as provided in this article, only upon a finding
by the Board of Adjustment that:
1.
The application of the ordinance to the particular piece of property
would create an unnecessary hardship;
2.
Such conditions are peculiar to the particular piece of property
involved;
3.
Relief, if granted, would not cause substantial detriment to the
public good, or impair the purposes and intent of the ordinance or
the comprehensive plan; and
4.
The variance, if granted, would be the minimum necessary to alleviate
the unnecessary hardship.
1.
Application for request of variances or special exceptions shall
be filed with the City Clerk's office by paying an application fee
plus the cost of publication and mailing expenses. The amount of application
shall be set by resolution by the Weatherford City Commission.
2.
Notice of public hearing before the Board of Adjustment shall be
given by publication in a newspaper of general circulation in the
City where the property is located and another notice mailed by the
clerk of the Board of Adjustment to all owners of property within
a 300-foot radius of the exterior boundary of the subject property.
A copy of the published notice may be mailed in lieu of written notice;
however, the notice by publication and written notice shall be published
and mailed at least 10 days prior to the hearing.
3.
The notice whether by publication or mail, of a public hearing before
the Board of Adjustment shall contain:
4.
On hearings involving minor variances or exceptions, notice shall be given by the clerk of the Board of Adjustment by mailing written notice to all owners of property adjacent to the subject property. The notice shall be mailed at least 10 days prior to the hearing and shall contain the facts listed in Subsection 2 of this section. The Board of Adjustment shall set forth in a statement of policy what constitutes minor variances or exceptions, subject to approval or amendment by the City Commission.
The following procedure shall be followed for appeals from any
action or decision of an administrative officer acting pursuant to
any zoning ordinance to the Board of Adjustment in the following manner:
1.
Appeals from the action of any administrative officer 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 administrative officer;
2.
An appeal shall be taken within three working days by filing with
the officer from whom the appeal is taken and by filing 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 certified copies of all the papers constituting
the record of the matter, together with a copy of the ruling or order
from which the appeal is taken;
3.
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 has 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 the 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; and
4.
The Board of Adjustment within 10 working days from the filing of
the appeal, shall set a hearing date for 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.
1.
An appeal from any action, decision, ruling judgment or order of
the Board of Adjustment may be taken by any person or persons, jointly
or severally aggrieved, or any taxpayer or any officer, department,
board or bureau of the City to the district court of Custer County.
2.
The appeal shall be taken by filing with the City Clerk and with
the clerk of the Board of Adjustment, within 10 working days a notice
of appeal. The notice shall specify the grounds for the appeal. No
bond or deposit for costs shall be required for such appeal.
3.
Upon filing the notice of appeal, the Board of Adjustment shall forthwith
transmit to the court clerk the original, or certified copies, of
all papers constituting the record in the case, together with the
order, decision or ruling of the Board of Adjustment.
4.
The appeal shall be heard and tried de novo in the District Court.
All issues in any proceedings under this section shall have preference
over all other civil actions and proceedings.
5.
An appeal to the District Court from the Board of Adjustment stays
all proceedings in furtherance of the action appealed from, unless
the chairman of the Board, from which the appeal is taken, certifies
to the Court Clerk, after the notice of appeal has been filed, 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 District Court upon application or notice to the
administrative officer in charge of the enforcement of the terms and
provisions of the ordinance, and upon notice to the chairman of the
Board from which the appeal is taken, and upon due cause being shown.
6.
The District Court may reverse or affirm, wholly or partly, or modify
the decision brought up for review. Costs shall not be allowed against
the Board of Adjustment unless it shall appear to the District Court
that the Board acted with gross negligence or in bad faith or with
malice in making the decision appealed from. An appeal shall lie from
the action of the District Court as in all other civil actions.
Any person, firm or corporation, who shall violate, disobey, omit, neglect or refuse to comply with, or who resists the enforcement of any of the provisions of Sections 18-10 to 18-14 of this chapter, shall be guilty of an offense and shall be punished accordingly. Each day that a violation is permitted to exist shall constitute a separate offense.
