A Board of Zoning Adjustment is hereby created for the County
of Henderson, Kentucky. The Board shall be known as the "Henderson
County Board of Zoning Adjustment." The Board shall have the powers,
duties, and responsibilities as set forth in KRS Chapter 100.
A. Jurisdiction of the Board of Zoning Adjustment for the County shall
be within the unincorporated limits of the County, as exists or may
be amended in the future.
B. The membership, appointment, and term of office of the Board of Zoning
Adjustment is as follows: The Board shall consist of five citizen
members, one of whom shall be a Planning Commission member and resident
of the County of Henderson. The Judge/Executive of the County shall
appoint the members of the Board with the approval of the County Fiscal
Court. The term of office of members first appointed shall be staggered
so that a proper proportionate number serve one, two, three and four
years respectively, with later appointments or reappointments continuing
the staggered pattern.
C. Reimbursement for expenses lawfully incurred by a member of the Board
of Zoning Adjustment in the performance of his duties may be authorized
by formal action of the Fiscal Court. No member of the Board shall
receive any other compensation.
D. The Board of Zoning Adjustment shall have the power to receive, hold,
administer and disburse funds which it may lawfully receive from any
and every source. Prior to the beginning of each fiscal year, the
Board may adopt a budget which will be presented to the Fiscal Court
for the purpose of receiving funds for the cost of its operation.
E. Expenditures of such appropriations and funds shall be in accordance
with the formal action of the Board pursuant to the regulations lawfully
established. Administration of the Board shall be as described in
KRS Chapter 100 and as may be amended in the future.
F. Vacancies on the Board of Adjustment shall be filled within 60 days
by the appointing authority. If the appointing authority fails to
act within that time, the Planning Commission shall fill the vacancy.
When a vacancy occurs other than through expiration of the term of
office, it shall be filled for the remainder of the term. All appointments
shall continue until the successors shall have qualified.
G. All members of the Board of Zoning Adjustment shall, before entering
upon their duties, qualify by taking the oath of office prescribed
by Section 228 of the Constitution of the Commonwealth of Kentucky
before any judge, notary public, clerk of a court or justice of the
peace within the district or county in which he/she resides.
H. Any member of the Board of Zoning Adjustment may be removed by the
appropriate appointing authority for inefficiency, neglect of duty,
malfeasance or conflict of interest. Any appointing authority who
exercises the power to remove a member of the Board of Zoning Adjustment
shall submit a written statement to the Commission setting forth the
reasons for removal, and the statement shall be read at the next meeting
of the Board of Zoning Adjustment which shall be open to the general
public. The member so removed shall have the right to appeal from
the removal to the Circuit Court of the county in which he/she resides.
I. The Board of Zoning Adjustment shall annually elect a Chairman, Vice-Chairman
and Secretary and any other such officers it deems necessary, and
any officer shall be eligible for re-election at the expiration of
his term.
J. The Board of Zoning Adjustment shall conduct meetings at the call
of the Chairman, who shall give written notice or oral notice to all
members of the Board at least seven days prior to the meeting, which
notice shall contain the date, time and place for the meeting and
the subjects which will be discussed.
K. A simple majority of the total membership of the Board of Zoning
Adjustment as established by regulation or agreement shall constitute
a quorum. Any member of the Board of Zoning Adjustment who has any
direct or indirect financial interest in the outcome of any question
before the body shall disclose the nature of the interest and shall
disqualify himself/herself from voting on the questions.
L. The Board of Zoning Adjustment shall adopt bylaws for the transaction
of business and shall keep minutes and records of all proceedings,
including regulations, transactions, findings, and determinations
and number of votes for and against each question, and if any member
is absent or abstains from voting, indicating the fact, all of which
shall, immediately after adoption, be filed in the office of the Board.
A transcript of the minutes of the Board of Zoning Adjustment meeting
shall be provided if requested by a party, at the expense of the requesting
party, and the transcript shall constitute the record.
M. The Board of Zoning Adjustment may employ or contract with planners
or other persons as it deems necessary to accomplish its assigned
duties.
N. The Board of Zoning Adjustment shall have the power to issue subpoenas
to compel witnesses to attend its meetings and give evidence bearing
upon the questions before it. The Sheriff shall serve such subpoenas.
The Circuit Court may, upon application by the Board, compel obedience
to such court or such subpoena by proceedings of contempt.
O. The Chairman of the Board of Zoning Adjustment shall have the power
to administer an oath to witnesses prior to their testifying before
the Board on any issue.
P. The Board shall have the power to hear and decide applications for
conditional use permits to allow the proper integration into the community
of uses which are specifically named in the zoning regulations which
may be suitable only in specific locations in the zone only if certain
conditions are met.
(1) The Board may approve, modify, or deny any application for a conditional
use permit. If it approves such permit it may attach necessary conditions
such as time limitations, requirements that one or more things be
done before the request can be initiated or conditions of a continuing
nature. Any such conditions shall be recorded in the Board's minutes
and on the conditional use permit along with a reference to the specific
section in the zoning regulation listing the conditional use under
consideration. The Board shall have the power to revoke conditional
use permits or variances for noncompliance with the conditions thereof.
Furthermore, the Board shall have a right of action to compel offending
structures or uses removed at the cost of the violator and may have
judgment in personam for such cost.
(2) Granting of a conditional use permit does not exempt the applicant
from complying with all of the requirements of building, housing and
other regulations.
(3) In any case where a conditional use permit has not been exercised
within the time limit set by the Board, or within one year if no specific
time limit has been set, such conditional use permit shall not revert
back to its original designation unless there has been a public hearing.
"Exercised," as set forth in this section, shall mean that binding
contracts for the construction of the main building or other improvements
have been met; or in the absence of contracts that the main building
or other improvements are under construction to a substantial degree,
or that prerequisite conditions involving substantial investment under
contract, in development are completed. When construction is not a
part of the use, "exercised" shall mean that the use in operation
is in compliance with the conditions as set forth in the permit.
(4) The administrative official shall review all conditional use permits,
except those for which all conditions have been permanently satisfied,
at least once annually and shall have the power to inspect the land
or structure where the conditional use is located in order to ascertain
that the landowner is complying with all of the conditions listed
on the conditional use permit. If the landowner is not complying with
all of the conditions listed on the conditional use permit, the administrative
official shall report the fact in writing to the Chairman of the Board
of Zoning Adjustment. The report shall state specifically the manner
in which the landowner in not complying with the conditions on the
conditional use permit, and a copy of the report shall be furnished
to the landowner at the same time it is furnished to the Chairman
of the Board of Zoning Adjustment. The Board shall hold a hearing
on the report within a reasonable time, and notice of the time and
place of the hearing shall be furnished to the landowner at least
one week prior to the hearing. If the Board of Zoning Adjustment finds
that the facts alleged in the report of the administrative official
are true and that the landowner has taken no steps to comply with
them between the date of the report and the date of the hearing, the
Board of Zoning Adjustment may authorize the administrative official
to revoke the conditional use permit and take the necessary legal
action to cause the termination of the activity on the land which
the conditional use permit authorizes.
(5) Once the Board of Zoning Adjustment has completed a conditional use
permit and all the conditions required are such type that they can
be completely and permanently satisfied, the administrative official,
upon request of the applicant, may, if the facts warrant, make a determination
that the conditions have been satisfied and note the conclusion in
the margin of the conditional use permit which is on file in the office
of the Planning Commission. Thereafter, said use, if it continues
to meet the other requirements of the regulations, will be treated
as a permitted use.
Q. The Board shall have the power to hear and decide on applications
for variances. The Board may impose any reasonable conditions or restrictions
on any variance it decides to grant.
(1) Before any variance is granted, the Board must find that the granting
of the variance will not adversely affect the public health, safety
or welfare, will not alter the essential character of the general
vicinity, will not cause a hazard or a nuisance to the public and
will not allow an unreasonable circumvention of the requirements of
the zoning regulations. In making these findings, the Board shall
consider whether:
(a)
The requested variance arises from special circumstances which
do not generally apply to land in the general vicinity, or in the
same zone;
(b)
The strict application of the provisions of the regulation would
deprive the applicant of the reasonable use of the land or would create
an unnecessary hardship on the applicant; and
(c)
The circumstances are the result of actions of the applicant
taken subsequent to the adoption of the zoning regulation from which
relief is sought.
(2) The Board shall deny any request for a variance arising from circumstances
that are the result of willful violations of the zoning regulation
by the applicant subsequent to the adoption of the zoning regulation
from which relief is sought.
(3) The Board shall not possess the power to grant a variance to permit
a use of any land, building, or structure which is not permitted by
the zoning regulation in the zone in question, or to alter density
requirements in the zone in question.
(4) A variance applies to the property for which it is granted and not
to the individual who applied for it. A variance runs with the land
and is transferable to any future owner of the land, but it cannot
be transferred by the applicant to a different site.
R. The lawful use of a building or premises existing at the time of
adoption of any zoning regulations affecting it may be continued,
although such use does not conform to the provisions of such regulations,
except as otherwise provided herein. The Board of Zoning Adjustment
shall not allow the enlargement or extension of a nonconforming use
beyond the scope and area of its operation at the time the regulation
which makes its use nonconforming was adopted, nor shall the Board
permit a change from one nonconforming use to another unless the new
nonconforming use is in the same or a more restrictive classification;
provided, however, the Board of Zoning Adjustment may grant approval,
effective to maintain nonconforming use status, for enlargements or
extensions made or to be made of the facilities of a nonconforming
use where the use consists of the presenting of a major public attraction
or attractions such as a sports event or events which has been presented
at the same site over such period of years and has such attributes
and public acceptance as to have attained international prestige and
to have achieved the status of a public tradition, contributing substantially
to the economy of the community and state, of which prestige and status
the site is an essential element, and where the enlargement or extension
was or is designed to maintain the prestige and status by meeting
the increasing demands of participants and patrons.
S. The Board of Zoning Adjustment shall have the power to hear and decide
cases where it is alleged by an applicant that there is an error in
any order, requirement, decision, grant or refusal made by an administrative
official in the enforcement of the zoning regulation. Such appeal
shall be taken within 60 days.
(1) Appeals to the Board may be taken by any person or entity claiming
to be injuriously affected or aggrieved by an official action or decision
of the zoning enforcement officer. Such appeal shall be taken within
30 days after the appellant or his agent receives notice of the action
appealed from, by filing with said officer and with the Board a notice
of appeal specifying the grounds thereof, and giving notice of such
appeal to any and all parties of record. Said officer shall forthwith
transmit to the Board all papers constituting the record upon which
the action appealed from was taken and shall be treated as and be
the respondent in such further proceedings. At any hearing by the
Board, any interested person may appear and enter his appearance and
all shall be given an opportunity to be heard.
(2) The Board shall fix a reasonable time for hearing the appeal and
give public notice in accordance with KRS Chapter 424, as well as
written notice to the appellant and the administrative official at
least one week prior to the hearing and shall decide it within 60
days. The affected party may appear at the hearing in person or by
attorney.
T. If no building permit has been issued and a builder begins or continues
to build, a restraining order may be obtained upon application to
the proper court of record, and evidence of the lack of a building
permit shall establish a prima facie case for the issuance of a restraining
order.