[Ord. No. 3121, 4-18-2016; Ord. No. 3265, 12-19-2022]
The Board of Adjustment is hereby created. The Board shall consist
of five (5) members, who shall reside within twenty-five (25) miles
of the City limits of the City of Malden, except as provided in Section
305.410, RSMo., appointed by the Mayor and approved by the City Council.
The membership of the first 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 hearings. 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/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 facts 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.
[Ord. No. 3121, 4-18-2016]
A.
The Board of Adjustment shall have the following powers:
1.
To hear and decide appeals where it is alleged there is an error
in any order, requirement, decision or determination made by the Enforcement
Officer in the enforcement of this Chapter and may affirm or reverse
in whole or in part said decision of the Enforcement Officer.
2.
To hear requests for variances from the literal provisions of
this Chapter, in instances where strict enforcement of this Chapter
would cause undue hardship due to circumstances unique to the individual
property under consideration, and grant such variances only when it
is demonstrated that such action will be in keeping with the spirit
and intent of the provisions of this Chapter. The Board shall not
permit as a variance any use in a zone that is not permitted under
this Chapter. The Board may impose conditions in the granting of a
variance to ensure compliance and to protect adjacent property.
3.
Will hold public hearings in order to decide the following exceptions
to or variations of this Chapter:
a.
To permit the extension of a district where the boundary line
thereof divides a lot held in a single ownership at the time of adoption
of this Chapter (April 18, 2016).
b.
Classify commercial or industrial uses not specifically listed
in this Chapter.
c.
Permit reconstruction of a non-conforming building otherwise
prohibited elsewhere in this Chapter.
d.
Vary the yard regulations where there is an exceptional or unusual
physical condition of a lot not generally prevalent in the neighborhood,
which condition when related to the yard regulations of this Chapter
would prevent a reasonable or sensible arrangement of buildings on
the lot.
e.
Vary the parking regulations where it is conclusively shown
that the specific use of a building would make unnecessary the parking
space otherwise required by this Chapter or where it can be conclusively
shown that adequate off-street parking to serve a particular use has
been provided by or is controlled by the municipality.
[Ord. No. 3121, 4-18-2016]
A.
In considering all appeals and proposed variations to this Chapter,
the Board shall, before making any finding in a specific case, first
determine that the proposed variation will not constitute any change
in the District Map and will not impair an adequate supply of light
and air to adjacent property or unreasonably increase the congestion
in public streets or increase the danger of fire and safety or unreasonably
diminish or impair established property values within the surrounding
area, or in any other respect impair the public health, safety, comfort,
morals and welfare of the City of Malden.
B.
The concurring vote of four (4) members of the Board shall be necessary
to reverse any order, requirements, decision, or determination of
the Enforcement Officer, or to decide in favor of the applicant on
any matter upon which it is required to pass under this Chapter or
to effect any variation of this Chapter.
C.
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
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/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.
[Ord. No. 3121, 4-18-2016]
In exercising the above-mentioned powers the Board may, in conformity
with the provisions of Sections 89.010 to 89.140, RSMo., and 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.
