The existing Zoning Board of Appeals of seven members is hereby
continued.
A.
Orders, requirements, decisions, interpretations, determinations.
The Zoning Board of Appeals may reverse or affirm, wholly or partly,
or may modify the order, requirement, decision, interpretation or
determination appealed from and shall make such order, requirement,
decision, interpretation or determination as in its opinion ought
to have been made in the matter by the administrative official charged
with the enforcement of this chapter and to that end shall have all
the powers or the administrative official from whose order, requirement,
decision, interpretation or determination the appeal is taken.
B.
Use variances.
(1)
The Zoning Board of Appeals, on appeal from the decision or
determination of the administrative official charged with the enforcement
of this chapter, shall have the power to grant use variances, as defined
herein.
(2)
No such use variance shall be granted by the Zoning Board of
Appeals without a showing by the applicant that applicable zoning
regulations and restrictions have caused unnecessary hardship. In
order to prove such unnecessary hardship the applicant shall demonstrate
to the Zoning Board of Appeals that for each and every permitted use
under the zoning regulations for the particular district where the
property is located:
(a)
The applicant cannot realize a reasonable return, provided that lack
of return is substantial as demonstrated by competent financial evidence;
(b)
The alleged hardship relating to the property in question is
unique and does not apply to a substantial portion of the district
or neighborhood;
(c)
The requested use variance, if granted, will not alter the essential
character of the neighborhood; and
(d)
The alleged hardship has not been self-created.
(3)
The Zoning Board of Appeals, in the granting of use variances,
shall grant the minimum variance that it shall deem necessary and
adequate to address the unnecessary hardship proven by the applicant
and at the same time preserve and protect the character of the neighborhood
and the health, safety and welfare of the community.
C.
Area variances.
(1)
The Zoning Board of Appeals shall have the power, upon an appeal
from a decision or determination of the administrative official charged
with the enforcement of this chapter, to grant area variances as defined
herein.
(2)
In making its determination, the Zoning Board of Appeals shall
take into consideration the benefit to the applicant if the variance
is granted, as weighted against the detriment to the health, safety
and welfare of the neighborhood or community by such grant. In making
such determination the Board shall also consider:
(a)
Whether an undesirable change will be produced in the character
of the neighborhood or a detriment to nearby properties will be created
by the granting of the area variance;
(b)
Whether the benefit sought by the applicant can be achieved
by some method feasible for the applicant to pursue, other than an
area variance;
(c)
Whether the requested area variance is substantial;
(d)
Whether the proposed variance will have an adverse effect or
impact on the physical or environmental conditions in the neighborhood
or district; and
(e)
Whether the alleged difficulty was self-created, which consideration
shall be relevant to the decision of the Zoning Board of Appeals but
shall not necessarily preclude the granting of the area variance.
(3)
The Zoning Board of Appeals, in the granting of area variances,
shall grant the minimum variance that it shall deem necessary and
adequate and at the same time preserve and protect the character of
the neighborhood and the health, safety and welfare of the community.
D.
Imposition of conditions. The Zoning Board of Appeals shall, in the
granting of both use variances and area variances, have the authority
to impose such reasonable conditions and restrictions as are directly
related to and incidental to the proposed use of the property. Such
conditions shall be consistent with the spirit and intent of this
chapter and shall be imposed for the purpose of minimizing any adverse
impact such variance may have on the neighborhood or community.
The powers and duties of the Zoning Board of Appeals shall be
exercised in accordance with the following procedure:
A.
Public hearing. The Zoning Board of Appeals shall not decide upon
any appeal for a variance or interpretation of this chapter without
first holding a public hearing, notice of which hearing, including
the substance of the appeal or application, shall be given by publication
in the official newspaper of the City at least 10 days before the
date of such hearing. In addition to such published notice, the applicant
shall cause such notice to be mailed (certified mail, return receipt
requested) at least 10 days before the hearing to all owners of property
which lies adjacent to the property for which relief is sought and
to such other owners as the Zoning Board of Appeals may deem advisable.
B.
Surrounding owners. The names of said owners shall be taken as they
appear on the last completed tax roll of the City.
C.
Substantial compliance. Provided that due notice shall have been
published and that there shall have been substantial compliance with
the remaining provisions of this section, the failure to give notice
in exact conformance herewith shall not be deemed to invalidate action
taken by the Zoning Board of Appeals in connection with the granting
of any appeal or variance.
D.
Appeals and applications. All appeals and applications made to the
Zoning Board of Appeals shall be in writing and shall be accompanied
by the required fee payable to the Building Department. The fee filed
in connection with applications shall not be returnable regardless
of disposition of the case by the Board.
E.
Circumstances to be set forth. Each appeal or application shall fully
set forth the circumstances of the case, shall refer to the specific
provisions of the section(s) of this chapter involved, and shall exactly
set forth, as the case may be, the interpretation that is claimed,
the details of the variance that is applied for, and the grounds on
which it is claimed that the same should be granted.
F.
Transmittal of official notification. Should any appeal involve either
of the two following conditions, the Secretary of the Zoning Board
of Appeals shall transmit to the designated office or official a copy
of the official notice of the public hearing not later than 10 days
prior to the date of the hearing.
G.
Designated officials. The designated official for counties shall
be the Clerk of the county legislature. In cities and towns, the designated
official shall be the Clerk of the municipality.
H.
Advisory opinion of Planning Board. Prior to the date of any public
hearing, the Secretary of the Zoning Board of Appeals shall transmit
to the Secretary of the Planning Board a copy of any appeal or application,
together with a copy of the notice of such hearing. The Planning Board
may submit to the Zoning Board of Appeals an advisory opinion on said
appeal or application at any time prior to the rendering of a decision
by the Zoning Board of Appeals.
I.
Record. Every decision of the Zoning Board of Appeals shall be recorded
in accordance with the standard forms adopted by the Board, shall
fully set forth the circumstances of the case, shall contain a full
record of the findings on which the decision is based, and, if such
decision is not in accordance with the recommendation of the Planning
Board, the reasons therefor. Every decision of said Board shall be
by resolution, and each such resolution shall be filed in the office
of the City Clerk-Treasurer by case number, under one of the following
headings: "Interpretation" or "Variances," together with all documents
pertaining thereto. Regarding its decision in each case, the Zoning
Board of Appeals shall notify the Building Official, Common Council,
City Planning Board, and the municipal Clerk of any affected municipality
given notice of hearing.
J.
Minutes. The Secretary shall keep minutes of the Board's proceedings
showing the vote of each member upon every question, or if absent
or failing to vote, indicating such fact. The Secretary shall keep
records of the Board's examinations and official actions, all of which
shall be immediately filed in the office of the City Clerk-Treasurer
and shall be a public record.
K.
Strict construal. All provisions of this chapter relating to the
Zoning Board of Appeals shall be strictly construed. Said Board as
a body of limited jurisdiction shall act in full conformity with all
provisions of law and of this chapter and in compliance with all limitations
contained therein.
L.
Expiration. Unless construction is commenced and diligently pursued
within six months of the date of the granting of a variance, such
variance shall become null and void, unless renewed upon application
to the Zoning Board of Appeals.
