[CC 1997 §26-18.1]
A Board of Adjustment is hereby established. The word "Board",
when used in this Article, shall be construed to mean the Board of
Adjustment.
[CC 1997 §26-18.2]
A.
The
Board of Adjustment shall consist of five (5) members, all of whom
shall be residents appointed by the Mayor and approved by the Board
of Aldermen.
B.
The
term of office of the members of the Board of Adjustment shall be
for five (5) years except that the membership of the first (1st) Board
appointed shall serve respectively for terms of 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. Vacancies
shall be filled for the unexpired term only. Members shall be removed
for cause by the Mayor and the Board of Aldermen upon written charges
and after public hearing.
C.
The
Board of Adjustment shall elect its own Chairman and Vice Chairman
who shall serve for one (1) year.
D.
The
Board shall adopt from time to time such rules and regulations as
it may deem necessary to carry into effect the provisions of this
Chapter.
E.
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 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. All testimony,
objections thereto and rulings thereon shall be taken down by a reporter
employed by the Board for the purpose.
[CC 1997 §26-18.3]
A.
Appeals
to the Board of Adjustment on any matter over which the Board is herein
specifically granted jurisdiction may be taken by any person aggrieved
or by an officer, department or board, other than the Board of Adjustment,
or bureau of the City affected by any decision of the Ordinance Enforcement
Official. Such appeal shall be taken within a reasonable time, as
shall be prescribed by the Board of Adjustment by general rule, by
filing with the Ordinance Enforcement Official and with the Board
of Adjustment notice of appeal specifying the grounds thereof. The
Ordinance Enforcement Official shall immediately transmit to the Board
all the papers constituting the record upon which the action appealed
from is taken.
B.
An
appeal stays all proceedings in furtherance of the action appealed
from, unless the Ordinance Enforcement Official certifies to the Board
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 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 or by a court of record on application or
notice to the Ordinance Enforcement Official on good cause shown.
C.
The
Board shall fix a reasonable time for the hearing of the appeal, give
not less than fifteen (15) days' notice thereof in a newspaper of
general circulation, 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.
A fee
payable to the City of Oakland shall be submitted to the Ordinance
Enforcement Official at the time the notice of appeal is filed, which
the Ordinance Enforcement Official shall immediately pay over to the
City Collector.
[CC 1997 §26-18.4]
A.
The
Board of Adjustment shall have the following powers and duties:
1.
To hear and decide all matters referred to it and upon which it is
required to pass under this Article.
2.
To interpret the provisions of this Chapter in such a way as to carry
out its intent and purpose.
3.
To hear appeals in a manner prescribed in Section 405.680 of this Chapter, where it is alleged that there is an error in any order, requirement, decision or determination made in the enforcement or interpretation of this Chapter.
4.
To authorize variances, upon appeal, in accordance with the provisions of Section 405.690 of this Chapter.
5.
To permit the construction and/or use of a building or the use of
premises for public utility purposes.
6.
To permit the reconstruction of a non-conforming use of a building
which has been damaged by explosion, fire, act of God or public enemy,
to the extent of more than fifty percent (50%) of its replacement
value, where the Board of Adjustment finds compelling public necessity
requiring a continuance of the non-conforming use.
7.
To permit a variance in the yard requirements of any district where
there are severe practical difficulties or extreme hardships in the
carrying out of these provisions due to an irregular shape or size
of the lot, the sites of pre-existing buildings, topographical or
other site conditions; provided, that such variance shall not have
a serious adverse impact on any adjoining property or the general
welfare or establish an unsatisfactory precedent for other locations
and situations.
8.
To permit the extension of a district where the boundary line of
a district divides a lot held in a single ownership on the date of
adoption of this Chapter.
[CC 1997 §26-18.5]
A.
The Board of Adjustment may authorize variances when there are severe practical difficulties or extreme hardships in carrying out the strict letter of this Chapter so that the spirit of this Chapter shall be observed, public safety and welfare secured and substantial justice done. However, no variance shall be authorized unless the Board of Adjustment determines that the application complies with the standards set forth in Section 405.690(D).
B.
Application And Submission. An application for variance
shall be filed in the office of the Ordinance Enforcement Official.
The Ordinance Enforcement Official shall review the application to
determine whether it complies with all applicable requirements. Prior
to forwarding to the Board of Adjustment, the Ordinance Enforcement
Official shall prepare a report describing the circumstances of the
application. The Ordinance Enforcement Official shall then forward
the application, his/her report and any recommendations or actions
of any other City department or agency to the Board of Adjustment.
The application shall contain the following information, as well as
such additional information as the Board of Adjustment may prescribe
by regulation and file with the City Clerk.
1.
The particular requirements of this Chapter which prevent the proposed
construction;
2.
The characteristics of the subject property which prevent compliance
with the requirements of this Chapter;
3.
The particular hardship which would result if the specific requirements
of this Chapter were applied to the subject property;
4.
The reduction of the minimum requirements of this Chapter which would
be necessary to permit the proposed construction.
C.
The Board of Adjustment shall hold public hearings on all applications for variances in accordance with the provisions of Section 405.695.
D.
Standards For Variance. The Board of Adjustment shall not
grant a variance as authorized herein unless it shall, in each case,
make specific written findings of fact directly based upon the particular
evidence presented to it to support all of the following conclusions:
1.
The variance requested arises from a condition which is unique to
the property in question and which is not ordinarily found in the
same zoning district and is not created by an action or actions of
the property owner or the applicant;
2.
The granting of the variance shall not adversely affect the rights
of the adjacent property owner of residence;
3.
The strict application of the provisions of this Chapter from which
a variance is requested will cause severe practical difficulty or
extreme hardship for the property owner represented in the application;
4.
The variance desired will not adversely affect the public health,
safety, order, convenience or general welfare of the community; and
5.
Granting the variance desired will not violate the general spirit
and intent of this Chapter.
E.
Review Considerations. In determining whether the evidence presented supports all the conclusions required by Section 405.690(D), the Board of Adjustment shall consider the extent to which the evidence demonstrates that:
1.
The particular physical surroundings, shape or topographical conditions
of the property involved would result in a severe practical difficulty
or extreme hardship upon or for the owner, lessee or occupant, if
the provisions of this Chapter were literally enforced;
2.
The request for a variance is not based exclusively upon the desire
of the owner, lessee, occupant or applicant to secure a greater financial
return from the property;
3.
The granting of the variance will not be materially detrimental or
injurious to other property or improvements in the neighborhood in
which the property is located; and
4.
The proposed variance will not impair an adequate supply of light
onto adjacent property, substantially increase the congestion of the
public streets, increase the danger of fire, endanger the public safety
or substantially diminish or impair property values within the neighborhood.
F.
Conditions And Restrictions. In granting a variance, the Board of Adjustment may impose such conditions and restrictions upon the property benefited by the variance as may be necessary to comply with the standards set out in Section 405.690(D), to reduce or minimize any potentially injurious effect of such variance upon the other property in the neighborhood and to carry out the general purpose and intent of this Chapter. Failure to comply with any of these conditions or restrictions shall constitute a violation of this Chapter punishable as provided in Section 405.790 of this Chapter.
G.
Decisions And Records. The Board of Adjustment shall render
and send to the applicant a written decision on an application for
variance without unreasonable delay and in no case after thirty (30)
days after the decision. The Ordinance Enforcement Official shall
be informed of the decision and shall be responsible for enforcement.
H.
Validity. No variance granted by the Board of Adjustment
shall be valid for a period longer than three hundred sixty-five (365)
days from the date on which it grants the variance, unless within
such period:
1.
A building permit is obtained and the construction, or alteration
of the construction, is commenced and pursued diligently toward completion;
or
2.
An occupancy permit is obtained and a use of occupancy commenced.
The Board of Adjustment may grant an extension not exceeding one hundred
eighty (180) days each, upon written application, without notice or
hearing.
[CC 1997 §26-18.6]
A.
Whenever
the provisions of this Chapter require notice of hearing, the procedures
herein shall govern.
1.
Time of publication, content. It is the responsibility
of those officials conducting the hearing that at least fifteen (15)
days' notice of the time and place of the hearing is published in
a newspaper of general circulation in the City of Oakland. The notice
shall state the time and place of the hearing and the subject matter
of the hearing. When applicable, notice shall also state where copies
of reports, documents, applications, plans or other relevant materials
will be accessible for examination by interested persons prior to
the hearing.
2.
Record of proceeding. The official or officials
holding the hearing shall provide for maintaining a record of the
hearing and for taking statements, evidence and testimony.
3.
Posting notice. In addition to posting notice, the
officials conducting the hearing shall request the City Clerk to post
a copy of the notice as it appears in the newspaper in at least two
(2) places on the premises or property or City block. The notice,
as posted, shall contain a caption in large letters stating the nature
of the proposed action.
[CC 1997 §26-18.7]
Any variance granted by the Board of Adjustment, not exercised
within twelve (12) months from the date of approval, may be revoked
by the Board of Adjustment.
