[Ord. No. 338 Art. XII §A, 11-14-1991]
Appeals from action taken by the Administrative Officer shall be taken in the following manner:
Appointment — term — vacancies — organization. A Board of Adjustment is hereby established. The Board of Adjustment shall consist of five (5) members, who shall be residents of the municipality. 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 this Chapter. 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 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.
The Board of Adjustment shall have the following powers:
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 these Sections or of any ordinance adopted pursuant thereto;
To hear and decide all matters referred to it or upon which it is required to pass under such ordinance;
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.
In exercising the above-mentioned powers such 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 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.
All appeals shall be taken within sixty (60) days of the date of the action which is appealed.
Appeals from the enforcement and interpretation of this Chapter, signed by the appellant, shall be addressed to the Board of Adjustment and presented to the Administrative Officer. A fee of one hundred dollars ($100.00) shall be paid to the City of Gerald for each appeal to cover the costs of advertising and administrative costs. The appeal shall contain or be accompanied by such legal descriptions, maps, plan, and other information so as to completely describe the decisions or interpretation being appealed and the reasons for such appeal.
The Administrative Officer shall transmit to the Board of Adjustment the appeal and all papers constituting the record upon which the action appealed was taken. The Chairman of the Board of Adjustment shall schedule a hearing to be held within sixty (60) days from the filing of the appeal. Public notice of the hearing shall be published in a newspaper of general circulation in the town at least once each week for two (2) successive weeks prior to the hearing. The Administrative Officer shall post notice on the property involved for a period of one (1) week prior to the hearing.
An appeal stays all proceedings in furtherance of the action appealed from unless the Administrative Officer certifies to the Board of Adjustment that by reason of facts in the record, a stay would, in his/her opinion, cause imminent peril to life and property, in which case proceedings shall not be stayed otherwise than by a court order.
[Ord. No. 338 Art. XII §B, 11-14-1991; Ord. No. 874, 8-9-2018]
Applications for variances to this Chapter shall be processed in the following manner:
An application for a variance from the terms of this Chapter signed by the applicant, shall be addressed to the Board of Adjustment and presented to the Administrative Officer.
A fee as set forth in Chapter 100 shall be paid to the City of Gerald for each application to cover the costs of advertising and administrative costs. The application shall contain or be accompanied by such legal descriptions, maps, plans and other information so as to completely describe the proposed use and existing conditions.
The Administrative Officer shall review the application and determine that sufficient data is contained to adequately describe the situation to the Board of Adjustment. If the data is not adequate, the Administrative Officer shall return the application to the applicant for additional information. Completed applications shall be forwarded to the Board of Adjustment.
[Ord. No. 338 Art. XII §C, 11-14-1991]
The Board of Adjustment shall approve or deny appeals and variances in the following manner:
The Chairman of the Board of Adjustment shall schedule a public hearing to be held within sixty (60) days after an application is filed. Public notice of the hearing shall be published in a newspaper of general circulation in the City at least once each week for two (2) successive weeks prior to the hearing. The Administrative Officer shall post notice on the property involved for a period of one (1) week prior to the hearing.
The Board of Adjustment shall approve or deny the application for a variance following the public hearing. Before any variance is granted, the Board of Adjustment must find that all of the following criteria are met:
Special circumstances exist which are peculiar to the applicant's land, structure or building and do not generally apply to the neighboring lands, structures or buildings in the same district or vicinity.
Strict application of the provisions of this Chapter would deprive the applicant of reasonable use of the land, structure or building in a manner equivalent to the use permitted to be made by owners of their neighboring land, structures, or buildings in the same district.
The special circumstances are not the result of action of the applicant taken subsequent to the adoption of this Chapter.
Relief, if approved, will not cause substantial detriment to the public welfare or impair the purposes and intent of this Chapter.
The following rules will be considered by the Board of Adjustment when approving or denying a variance:
Financial disadvantages to the property owner shall not constitute conclusive proof of unnecessary hardships within the purpose of zoning.
The Board of Adjustment does not possess the power to grant a variance permitting a zoned use of land or building that is not permitted as a principal use or structure.
In granting a variance, the Board of Adjustment may attach thereto any conditions and safeguards it deems necessary or desirable in furthering the purposes of this Chapter. Violation of any of these conditions or safeguards shall be deemed a violation of this Chapter.
Unless otherwise specified at the time the variance is granted, the variance applies to the subject property and not to the individual who applied. Consequently, the variance is transferable to any future owner of subject property, but cannot be transferred by the applicant to a different site.
A variance shall continue for an indefinite period of time unless otherwise specified at the time the variance is granted, except that when a variance has not been used within one (1) year after the date it is granted, the variance shall be cancelled by the Administrative Officer and written notices shall be given to the property owner.