[R.O. 1991 § 400.625; Ord. No. 2865-13 § 1(Exh.
A § 400.625), 4-2-2013]
A.
Authority. The Board of Adjustment previously
established and its members and their respective terms shall be continued,
subject to the provisions of Chapter 89, RSMo.
B.
Membership. The Board of Adjustment shall
consist of five (5) members who shall be residents of the City and
shall be appointed by the Mayor with the approval of the Board of
Aldermen for terms of five (5) years. Three (3) alternate members
may be appointed to serve in the absence of or the disqualification
of 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.
C.
Proceedings. The Board shall adopt rules
and regulations to govern its proceedings. 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/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
the 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.
D.
Powers And Duties. The Board of Adjustment
shall have the following powers:
1.
To hear and decide appeals where
it is alleged there is error in any order, requirements, decision
or determination made by the City Planner in the enforcement of this
Chapter or any ordinance adopted pursuant thereto. In this capacity,
the Board exercises appellate jurisdiction as a quasi-judicial body
and its task is to determine what the ordinance means and how the
ordinance applies to a particular fact situation;
2.
To hear and decide all requests for
variances from the strict and literal enforcement of the provisions
of this Chapter. A variance is the remedy created by this power and
is part of the Board's appellate jurisdiction. It is a discretionary
privilege which is granted because strict and literal enforcement
of the provisions of this Chapter would, due to the special conditions
peculiar to a particular parcel and not the intended use, result in
unusual difficulty or hardship;
3.
To hear and decide appeals where
it is alleged there is error in any order, requirements, decision
or determination made by the Chief Building Official in the enforcement
of any of the Building Codes or ordinances adopted pursuant thereto.
In this capacity, the Board exercises appellate jurisdiction as a
quasi-judicial body and its task is to determine what the ordinance
means and how the ordinance applies to a particular fact situation;
4.
To hear and decide all matters referred
to it or upon which it is required to pass under this Chapter;
5.
Further, the Board shall have the
power, when passing upon appeals or variances where the specified
standards for granting such have been met, to vary or modify the application
of any of the regulations or provisions of this Chapter relating to
the use, construction or alteration of buildings or structures or
the use of land so that the spirit of the Chapter shall be observed,
public safety and welfare secured and substantial justice done.
E.
Hearings Before The Board Of Adjustment.
In carrying out the powers and duties of the Board, the Board shall
hold a hearing on all items before it. The Board shall fix a time
for the hearing within thirty (30) days following receipt of an appeal
or variance request, give public notice of such hearing, by publication,
one (1) time in an official newspaper or a newspaper of general circulation
in the City at least fifteen (15) days prior to the date of said hearing.
Additionally, the Board shall notify, by regular mail, the owners
of all property within one hundred eighty-five (185) feet of the property
for which the appeal or variance has been filed. The party in interest
and any person notified above shall have an opportunity to be heard.
Any party may appear at the hearing in person or by agent or by attorney.
Following the hearing, the Board shall decide the appeal or variance
within sixty (60) days following receipt of the appeal or variance.
F.
Burden On Applicant. The applicant for
an appeal or variance shall bear the burden of producing evidence
establishing the grounds of the appeal or the necessity of the variance.
G.
Appeal From Decision Of The Board.
1.
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 City, 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 of the issuance of the Board's
decision.
2.
Upon the presentation of such petition,
the court may allow a writ of certiorari directed to the Board to
review such decision and shall prescribe therein the time within which
a return thereto must be made and served upon the petitioner, 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.
3.
The Board 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.
4.
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 the findings of fact and conclusions of law, which shall
constitute a part of the proceedings upon which the 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.
5.
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 proceeding under this Section shall have preference
over all other civil actions and proceedings.
H.
Fees For Filing Appeal Or Variance. At
the time of filing of an appeal or variance to the Board of Adjustment,
the appellant shall pay to the City a non-refundable deposit of three
hundred fifty dollars ($350.00) for the application review fee and
costs. The application review fee consists of a filing fee of three
hundred fifty dollars ($350.00), as well as an amount necessary to
reimburse the City for the cost of a certified court reporter, recording
fees, publications, postage, writs, determination of ownership interests,
as well as engineering and legal costs incurred in reviewing the application.
Said deposit shall be collected by the Chief Building Official or
City Planner and no appeal or variance shall be heard or considered
until said deposit is paid.
[R.O. 1991 § 400.630; Ord. No. 2865-13 § 1(Exh.
A § 400.630), 4-2-2013]
A.
When Appeals May Be Taken. 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 City
affected by any decision of the Chief Building Official or City Planner.
Such appeal shall be taken within five (5) days from the date of the
decision to be appealed by filing with the officer from whom the appeal
is taken and with the Board of Adjustment a notice of appeal specifying
the grounds. The officer(s) 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.
B.
Extent Of The Board's Appeal Powers. In
exercising its powers, the Board may, in conformity with the provisions
of this Chapter, 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 the Chief Building Official or City Planner
or to decide in favor of the applicant or to affect any variation
to the Zoning Code.
C.
Stay Of Proceedings. 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/her that
by reason of facts stated in the certificate a stay would, in his/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.
D.
Decision On Appeals. The Board shall render
decisions only on appeals from an action of the Chief Building Official
or City Planner. The Board shall take action only when it has determined
that a permit has been incorrectly issued or denied or when it has
determined that the ordinance has been incorrectly interpreted. In
no case shall the Board consider or decide an appeal from an action
of the Board of Aldermen or Planning and Zoning Commission, nor shall
it render decisions or rulings which have the effect of repealing
or amending this Chapter. In all cases, the spirit and intent of this
Chapter shall be observed, public safety and welfare secured and substantial
justice done.
[R.O. 1991 § 400.635; Ord. No. 2865-13 § 1(Exh.
A § 400.635), 4-2-2013]
A.
Extent Of The Board's Variance Powers.
1.
In exercising its powers, the Board may grant a variance in the following
instances.
a.
Permitting the erection of a building
or portion of a building to a height in excess of the limits prescribed
for the district or districts in which the building or portion of
the building is located.
b.
Permitting such modifications of
a yard, lot area or lot width requirements as may be necessary to
secure appropriate improvements of a parcel of land where such parcel
was separately owned on the date of the passage of the ordinance and
is not adjacent to another parcel of the same ownership and where
such parcel is of such size that it cannot be improved without such
modification.
c.
Permitting the extension of a district
where the boundary line of a district divides a lot in a single ownership
at the time of the passage of this Chapter.
d.
From the applicable bulk regulations
for buildings and structures, including maximum height, lot coverage,
required yard areas and other required open space.
e.
From the applicable minimum requirements
for lot size, width and depth and setbacks from lot lines.
f.
From the applicable off-street parking
and off-street loading requirements and ratios.
2.
In all cases, the Board may, in conformity with the provisions of
this Chapter, approve or deny the variance request in whole or part
as deemed necessary to conform with the standards for variances.
B.
Standards For Variances. The Board of Adjustment
shall not vary the regulations of this Chapter as authorized above
unless and until the Board shall make written findings based upon
the particular evidence presented to it in each specific case that:
1.
The particular physical surroundings,
shape or topographical condition of the specific property involved
would result in an unnecessary hardship upon the owner as distinguished
from a mere inconvenience if the strict letter of the regulations
were carried out;
2.
The conditions upon which the petition
for a variance is based would not be applicable, generally, to other
property within the same zoning classification;
3.
The alleged hardship has not been
created by any person presently having an interest in the property;
4.
The granting of the variance will
not be detrimental to the public health, safety or welfare or to other
property, improvements or the character in the neighborhood which
the property is located; and
5.
The granting of the variance is in
keeping with the purpose of the zoning district for which the property
is located and in keeping with the City's Comprehensive Plan.
C.
Use Variance Not Authorized. The Board
of Adjustment shall not be empowered to vary any of the provisions
of this Chapter relating to the permitted or conditional use of land,
buildings or structures in specific zoning districts.
D.
Application Requirements. Any person seeking a variance shall submit an application to the Chief Building Official. The application shall be made on a form prescribed by the Chief Building Official and accompanied by filing fee as required in Section 400.625(H). The application shall be accompanied by the following information:
1.
The particular provisions or requirements
of this Chapter which prevent the proposed construction on or use
of the property.
2.
The existing zoning district classification.
3.
The special conditions, circumstances
or characteristics of the land, building or structure that prevent
compliance with this Chapter.
4.
The particular hardship which would
result if the specified provisions or requirements were to be applied
to the subject property.
5.
The extent to which it would be necessary
to vary the requirements of this Chapter in order to permit the proposed
construction on or use of the property.
6.
An explanation of how the requested variance conforms to each of the standards set out in Section 400.635(B).
7.
A site plan describing the property
boundaries, the existing and proposed structures and setbacks.
8.
Any other information as directed
by the Board or the Chief Building Official to be deemed necessary
for the Board to make an appropriate decision.
E.
Extent Of Variance Limited. The Board,
in exercising its authority to grant variances from this Chapter,
shall be empowered to vary the provisions of this Chapter only to
the extent necessary to relieve or alleviate the demonstrated hardship.
F.
Conditions And Restrictions. The Board
may impose any such conditions and restrictions upon the premises
benefited by a variance as may be necessary to comply with the standards
set out in this Chapter to reduce, minimize or mitigate the effect
of such variance upon other property in the neighborhood and better
to carry out the general intent of the Chapter. Failure to comply
with any such conditions and restrictions shall constitute a violation
of this Chapter.
G.
Notice Of Decision. After the hearing and making a decision, the Board shall file its written decision on the requested variance, supported by findings of fact and conclusions of law and list of Sections varied with respect to the standards in Section 400.635(B), with the Chief Building Official. The Chief Building Official shall mail, by first class mail, a copy of the decision to the applicant and each other person who requests in writing to be notified.
H.
Duration And Validity Of Variance. No order
of the Board of Adjustment granting a variance shall be valid for
a period of longer than one (1) year from the date of such order unless
the action that precipitated the request for the variance (subdivision
of land, construction, change in use, etc.) is commenced within such
period and pursued to completion without unnecessary delay on the
part of the person holding the title or beneficial interest in the
property for which the variance was granted.
