Such local legislative body shall provide for the appointment
of a Board of Adjustment, and in the regulations and restrictions
adopted pursuant to the authority of Sections 89.010 to 89.140, RSMo.,
may provide that the Board of Adjustment may determine and vary their
application in harmony with their general purpose and intent and in
accordance with general or specific rules therein contained. The Board
of Adjustment shall consist of five (5) members, who shall be residents
of the municipality except as provided in Section 305.410, RSMo. The
membership of the first (1st) Board appointed shall serve respectively,
one (1) for one (1) year, one (1) for two (2) years, one (1) for three
(3) years, one (1) for four (4) years, and one (1) for five (5) years.
Thereafter members shall be appointed for terms of five (5) years
each. Three (3) alternate members may be appointed to serve in the
absence of or the disqualification of the regular members. All members
and alternates shall be removable for cause by the appointing authority
upon written charges and after public hearing. Vacancies shall be
filled for the unexpired term of any member whose term becomes vacant.
The Board shall elect its own Chairman who shall serve for one (1)
year. The Board shall adopt rules in accordance with the provisions
of any ordinance adopted pursuant to Sections 89.010 to 89.140, RSMo.
Meetings of the Board shall be held at the call of the Chairman and
at such other times as the Board may determine. Such Chairman, or
in his or her absence the Acting Chairman, may administer 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,
showing the vote of each member upon 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. All testimony,
objections thereto and rulings thereon, shall be taken down by a reporter
employed by the Board for that purpose.
A.Â
The
Board of Adjustment shall have the following powers:
1.Â
To hear and decide appeals where it is alleged there is error in
any order, requirement, decision, or determination made by an administrative
official in the enforcement of Sections 89.010 to 89.140, RSMo., or
of any ordinance adopted pursuant to such Sections;
2.Â
To hear and decide all matters referred to it or upon which it is
required to pass under such ordinance;
3.Â
In passing upon appeals, where there are practical difficulties or
unnecessary hardship in the way of carrying out the strict letter
of such ordinance, to vary or modify the application of any of the
regulations or provisions of such ordinance relating to the construction
or alteration of buildings or structures or the use of land so that
the spirit of the ordinance shall be observed, public safety and welfare
secured and substantial justice done.
B.Â
In
exercising the above-mentioned powers such Board may, in conformity
with the provisions of Sections 89.010 to 89.140, RSMo., 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 officer from whom the appeal is taken.
The concurring vote of four (4) 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 any such ordinance
or to effect any variation in such ordinance except as provided in
Section 305.410, RSMo.
Appeals to the Board of Adjustment may be taken 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 municipality affected by any decision of the
administrative officer. Such appeal shall be taken within a reasonable
time, as provided by the rules of the Board, by filing with the officer
from whom the appeal is taken and with the Board of Adjustment a notice
of appeal specifying the grounds thereof. The officer from whom the
appeal is taken shall forthwith transmit to the Board all the papers
constituting the record upon which the action appealed from was 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 or her that by reason of facts stated in the certificate
a stay would, in his or her opinion, cause immediate 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 the hearing any
party may appear in person or by agent or by attorney.
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 the County or City 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 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. 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 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 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 or 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 Sections 89.080 to 89.110, RSMo.,
shall have preference over all other civil actions and proceedings.
