[Ord. No. 646, §2.; Ord. No. 1099 §§2 — 3, 5-17-1994]
The Board of Adjustment is hereby established. The word "board",
when used in this article, shall be construed to mean the Board of
Adjustment. The Board shall consist of five (5) members who shall
be City residents appointed by the Mayor and approved by the Board
of Aldermen. The term of office of the members of the Board of Adjustment
shall be for five (5) years; except, that the five (5) members first
appointed shall serve respectively for terms of one (1) year, two
(2) years, three (3) years, four (4) years and five (5) years each.
Not more than two (2) members of the Board shall be members of the
planning and zoning commission. Vacancies shall be filled for the
unexpired term only. Members shall be removed for cause by the Mayor
and Board of Aldermen upon written charges and after public hearing.
Three (3) alternate members may be appointed to serve in the absence
of or the disqualification of the regular members.
[Ord. No. 646, §2.; Ord. No. 1099 §§2 — 3, 5-17-1994]
The Board of Adjustment shall elect its own chairman, vice-chairman,
and secretary who shall serve for one (1) year. 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.
[Ord. No. 928 §2; Ord. No. 1099 §§1 — 3, 5-17-1994]
(a)
Meetings for the Board of Adjustment shall be held at the call of
the chairman and at such other times as the Board may determine. Such
chairman, or in his 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 court reporter employed by the Board for that purpose. The cost
of the court reporter and legal publications shall be taxed against
the applicant, who shall pay a deposit in the amount of two hundred
dollars ($200.00) against such cost at the time of the filing of the
application.
(b)
Any application fees or deposits required by the City in conjunction
with any application for action under this section is intended to
defray the cost of review, analysis and consideration of same. Such
costs may include, but not be limited to, legal or informational publications,
signage, legal reviews, engineering and architectural reviews, ordinance
preparation, hearings, surveys, studies and any other direct, indirect
or third party costs. In the event that such fees are insufficient
to cover such total costs for a specific application, the applicant
shall deposit with the City such additional sums to cover the entire
cost of such review upon request by the City.
[Ord. No. 646, §2]
Appeals to the board of adjustment may be taken by any person
aggrieved or by an officer, department, board or bureau of the city
affected by any decision of the building commissioner regarding provisions
of this chapter. Such appeal shall be taken within a reasonable time,
as shall be prescribed by the board by general rule, by filing with
the building commissioner and with the board a notice of appeal specifying
the grounds thereof. The building commissioner shall forthwith transmit
to the board all the papers constituting the record upon which the
action appealed from is taken.
An appeal stays all proceedings in furtherance of the action
appealed from, unless the building commissioner certifies to the board,
after the notice of appeal shall have been filed with him, that, by
reason of fact stated in the certificate, a stay would, in his 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 on
notice to the building commissioner and on due cause shown.
The board 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.
[Ord. No. 646 §2; Ord. No. 929 §2; Ord. No. 1499 §1, 12-5-2000]
The board of adjustment shall have the following duties and
powers:
(a)
To hear and decide appeals where it is alleged there is an error
in any order, requirement, decision or determination made by the building
commissioner in the enforcement of this chapter.
(b)
To permit the erection and use of a building or the use of premises
in any location for a public service corporation or for public utility
purposes necessary to the public convenience or welfare.
(c)
To interpret the provisions of this Chapter in such a way as to carry
out the intent and purpose of the plan, as shown upon the zoning district
map fixing the several districts, where the street layout actually
on the ground varies from the street layout as shown on the map.
(d)
Permit a variation in the yard requirements of any zoning district,
or the setback line requirements for location or placement of signs
near highway rights-of-way, or the building or setback lines for major
highways as provided by law where there are practical difficulties
or unnecessary hardships in the carrying out of these provisions due
to an irregular shape of the lot, topographic or similar conditions,
provided such variation will not seriously affect any adjoining property
or the general welfare.
(e)
Permit a variation in the sign requirements of any zoning district
for business signs only up to thirty percent (30%) increase in sign
size and up to twenty-five percent (25%) increase in height where
the petitioner files a plot plan and scaled layout design in duplicate
and demonstrates that otherwise there would be a hardship to the public
seeking this particular commodity or service and where the petitioner
demonstrates that the increased sign size and height would not be
injurious to the neighborhood or otherwise detrimental to the public
welfare. In the case of a pole sign, the measurement as the basis
for a variation in height shall begin at the point of the pole which
is at the elevation of the adjacent road pavement. In making its decision
the Board must be satisfied that the granting of such variance will
not merely serve as a convenience to the applicant but will alleviate
such demonstrable and unusual hardship or difficulty, which is unique
to the petitioner in his use, so great as to warrant a variation from
the sign regulations as established by this Code and at the same time
place conditions upon such variance if necessary so that the surrounding
property will be properly protected.
(f)
Authorize, upon appeal, a variation in the use provisions of this
Chapter whenever a property owner can show that a strict application
of the terms of this Chapter relating to the use, construction or
alteration of buildings or structures, or the use of land, will impose
upon him practical difficulties or particular hardships. Such variations
of the strict application of the terms of this Chapter as are in harmony
with its general intent and purpose may be authorized only when the
Board is satisfied that the granting of such variation will not merely
serve as a convenience to the applicant, but will alleviate some demonstrable
and unusual hardship or difficulty so great as to warrant a variation
from the comprehensive plan or any zoning ordinance passed or enacted
by the Board of Aldermen, and at the same time the surrounding property
will be properly protected.
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In exercising the above mentioned powers, the Board may, in
conformity with the provisions of the law, reverse or affirm, wholly
or partly, or may modify the order, requirement, decision or determination
as ought to be made, and to that end shall have all of the powers
granted to the Building Commissioner under the provisions of this
Chapter.
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The concurring vote of four members of the Board shall be necessary
to reverse any order, requirement, decision or determination of the
Building Commissioner, or to decide in favor of the application on
any matter upon which it is required to pass under this Chapter, or
to effect any variation in this Chapter.
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[Ord. No. 646 §2]
Any person or persons jointly or severally aggrieved by any
decision of the board of adjustment may present to the circuit court
of the county a petition duly verified, setting forth that such decision
is illegal, in whole or in part, and specifying the grounds of illegality.
Such petition shall be presented to the court within thirty 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 to review such decision
of the board and shall prescribe therein the time within which a return
thereto must be made and served upon the relator's attorney, which
shall be not less than ten 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 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
evidence or appoint a referee to take such evidence as it may direct
and report the same to the court with his 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.
Costs shall not be allowed against the board unless it shall
appear to the court that it acted with gross negligence, in bad faith
or with malice in making the decision appealed from.
