[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; Ord. No. 2024-09, 5-28-2024]
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 and alternates, 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 (1) 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.
E.
The City Council may appoint up to three (3) alternate members of the Board of Adjustment to serve in the absence or disqualification of the regular members.
[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.