(a)
The
town manager or his/her designee shall be an ex officio member of
the board of adjustment without power of vote and as an ex officio
member of such board shall act as secretary of the board of adjustment
and shall set up and maintain a separate file for each application
for appeal and variance received and shall record therein the names
and addresses of all persons, firms and corporations to whom notices
are mailed, including the date of mailings and the person by whom
such notices were delivered to the mailing clerk, post office or mailbox
and further keep a record of all notices published as required herein.
All records and files herein provided for shall be permanent and official
files and records of the town.
(b)
The
secretary of the board shall forthwith notify in writing the town
council, the planning and zoning commission and the town building
inspector of each decision, interpretation and variance granted under
the provisions of this division.
(1998 Code, sec. 32.035; Ordinance
adopting Code)
(a)
The
board shall adopt rules to govern its proceedings, provided, however,
that such rules are not inconsistent with this division or state law.
Meetings of the board shall be held at the call of the chairperson
and at such other times as the board or town manager may determine.
The chairperson, or, in his/her absence, the acting chairperson, may
administer oaths and compel the attendance of witnesses.
(b)
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.
(c)
The
appellant must file with the board and the official from whom the
appeal is taken a notice of appeal specifying the grounds for the
appeal. The appeal must be filed within a reasonable time as determined
by the rules of the board. On receiving the notice, the official from
whom the appeal is taken shall immediately transmit to the board all
the papers constituting the record of the action that is appealed.
(d)
An
appeal shall stay all proceedings in furtherance of the action appealed
from unless the officer from whom the appeal is taken certifies in
writing to the board, 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 cases, proceedings shall not be stayed otherwise than by a restraining
order, which may be granted by the board or a court of record on application,
on notice to the officer from whom the appeal is taken and on due
cause shown.
(e)
Upon notice of appeal being given and before such appeal shall be construed as having been perfected, the applicant must file with such notice of appeal to the board an amount of money estimated by the board secretary to be sufficient to mail and publish all notices required herein, such amount in no case to be less than that established in the fee schedule in appendix A of this code.(1998 Code, sec. 32.036; Ordinance adopting Code)
(f)
No
appeal to the board for the same or related variance on the same piece
of property shall be allowed prior to the expiration of six months
from the previous ruling by the board on any appeal to such body unless
other property in the immediate vicinity has, within said six-month
period, been changed or acted on by the board or town council so as
to alter the facts and conditions on which the previous board action
was based. Such change of circumstances shall permit the rehearing
of an appeal by the board prior to the expiration of six-month period,
but such conditions shall in no wise have any force in law to compel
the board, after a hearing, to grant a subsequent appeal. Such subsequent
appeal shall be considered entirely on its merits and the peculiar
and specific conditions related to the property on which the appeal
is brought.
(g)
At
a public hearing relative to any appeal, any interested party may
appear in person or by agent or by attorney. The burden of proof shall
be on the applicant to establish the necessary facts to warrant favorable
action of the board on any appeal. Any variance granted or authorized
by the board under the provisions of this division shall authorize
the issuance of a building permit or a certificate of occupancy, as
the case may be, for a period of 180 days from the date of the favorable
action of the board, unless said board shall have in its action approved
a longer period of time and has so shown such specific longer period
of time in the minutes of its action. If the building permit and/or
certificate of occupancy shall not have been applied for within said
180-day period or such extended period as the board may have specifically
granted, then the variance shall be deemed to have been waived and
all rights thereunder terminated. Such termination and waiver shall
be without prejudice to a subsequent appeal and such subsequent appeal
shall be subject to the same regulations and requirements for hearing
as herein specified for the original appeal.
(1998 Code, sec. 32.036; Ordinance
adopting Code)
(a)
In
exercising its powers, the board may, in conformity with the provisions
of the statutes of the state as existing or hereafter amended, reverse
or affirm, wholly or partly, or may modify the order, requirement,
decision or determination appealed from and make such order, requirement,
decision or determination as ought to be made, and shall have all
the powers of the officer from whom the appeal is taken. The board
shall have the power to impose reasonable conditions to be complied
with by the applicant.
(b)
The
concurring vote of 75% of the members of the board 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 it is required to pass under this division
or to effect any variance under this division.
(c)
Any
person or persons jointly or severally aggrieved by any decision of
the board, or any taxpayer, or any officer, department or board of
the municipality, may present to a court of record (district court)
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 ten days after the filing of
the decision in the office of the board and not thereafter.
(1998 Code, sec. 32.037)
The board shall hold a public hearing on all appeals made to
it, and written notice of such public hearing shall be sent to the
applicant and all other persons who are owners of real property lying
within 500 feet of the property on which the appeal is made. Such
notice shall be given not less than ten days nor more than 30 days
before the date set for hearing to all such owners who have rendered
their said property for town taxes as the ownership appears on the
last town tax roll. Such notice may be served by depositing the same,
properly addressed and postage paid, in the United States post office.
Notice shall be given by publishing the same in the official publication
of the town at least ten days nor more than 30 days prior to the date
set for hearing, which shall state the time and place of such hearing.
(1998 Code, sec. 32.038)
(a)
A
variance is an authorization by the board granting relief and doing
substantial justice in the use of the applicant’s property by
a property owner where, owing to special conditions, a literal enforcement
of the provisions of the ordinance will result in unnecessary hardship.
(b)
When,
in its judgment, the public convenience and welfare will be substantially
served and the appropriate use of the neighboring property will not
be substantially or permanently injured, the board may, in specific
cases, after public notice and public hearing, and subject to appropriate
conditions and safeguards, authorize the following variances to the
regulations herein established and take action relative to the continuance
or discontinuance of a nonconforming use.
(c)
Variances.
(1)
A variance may be granted an applicant when the board finds:
(A)
That there are special circumstances or conditions applying to the
land or building for which the variance is sought, which circumstances
or conditions are peculiar to such land or building and do not apply
generally to lands or buildings in the same district or neighborhood,
and that said circumstances or conditions are such that the strict
application of the provisions of the ordinance would deprive the applicant
of the reasonable use of such land or building;
(B)
That the granting of such variance will not be detrimental to the
public welfare or injurious to the property or improvements in such
zone or neighborhood in which the property is located;
(C)
That the granting of the variance is necessary for the reasonable
use of the land or building and that the variance as granted by the
board is the minimum variance that will accomplish this purpose; and
(D)
That the literal enforcement and strict application of the provisions
of the ordinance will result in an unnecessary hardship inconsistent
with the general provisions and intent of the ordinance and that in
granting such variance the spirit of the ordinance will be preserved
and substantial justice done.
(2)
The board may, after public notice and hearing and subject to the
conditions and safeguards herein contained, vary or adapt the strict
application of any of the terms of this code under the power and authority
herein granted.
(3)
In granting any variance under the provisions of this code, the board
may designate such conditions in connection therewith which, in its
opinion, will secure substantially the purpose and intent of this
code.
(4)
To hear and decide appeals where it is alleged there is error in
any order, requirement, decision, or determination made by the town
in the enforcement of this code.
(5)
Interpret the intent of the zoning map where uncertainty exists because
the physical features on the ground vary from those on the zoning
map and none of the rules set forth herein apply.
(6)
Initiate on its motion, or cause to be presented by interested property
owners, action to bring about the discontinuance of a nonconforming
structure or use under any plan whereby full value of the structure
can be amortized within a definite period of time, taking into consideration
the general character of the neighborhood and the necessity for all
property to conform to the regulations of this code.
(7)
Permit the change of occupancy from one nonconforming use to another
nonconforming use when the extent of the second nonconforming use
is found to be less detrimental to the environment than the first.
(8)
Permit the enlargement of a nonconforming use only when the enlargement
will not prolong the life of the nonconforming use. A specific period
of time for the return to conformity can be required.
(9)
Permit the reconstruction of a nonconforming structure or building
on the lot or tract occupied by such building, provided such reconstruction
does not, in the judgment of the board, prevent the return of such
property to a conforming use or increase the nonconformity of a nonconforming
structure.
(10)
Require the vacation and demolition of a nonconforming structure
which is deemed to be obsolete, dilapidated, or substandard.
(11)
Permit such variance of the front yard, side yard, rear yard, lot
width, lot depth, coverage, minimum setback standards, off-street
parking or off-street loading regulations where the literal enforcement
of the provisions of this code would result in an unnecessary hardship,
and where such variance is necessary to permit a specific parcel of
land which differs from other parcels of land in the same district
by being of such restricted area, shape or slope that it cannot be
developed in a manner commensurate with the development permitted
upon other parcels of land in the same district. A modification of
the standard established by this code shall not be granted to relieve
a self-created or personal hardship, nor for financial reason only,
nor shall such modification be granted to permit any person a privilege
in developing a parcel of land not permitted by this code to other
parcels of land in the district.
(1998 Code, sec. 32.039)
(a)
It
is the intent of the town that all questions of interpretation and
enforcement shall be presented to the board in writing, and that recourse
from the decision of the board shall be to the courts as provided
by law.
(b)
It
is further the intent of the town that the duties of the town council
in connection with this division shall not include hearing and deciding
questions of interpretation that may arise. The procedures for deciding
such questions are stated herein.
(c)
Under
this division, the town council shall have only the duties of:
(1998 Code, sec. 32.040)
(a)
The
town council shall establish from time to time by resolution a schedule
of fees, charges, and expenses and a collection procedure for building
permits, certificates of compliance, appeals and other such matters
pertaining to this code. The schedule of fees shall be posted in the
office of the town secretary and may be altered or amended only by
the town council.
(b)
Until
all applicable fees, charges, and expenses have been paid in full,
no action shall be taken on any application or appeal.
(1998 Code, sec. 32.041)
