A board of adjustment is hereby established which shall consist
of five members to be appointed by the city council, each for a term
of two years. Members of the board of adjustment may be removed from
office by the city council for cause upon written charges and after
public hearing. Vacancies shall be filled by resolution of the city
council for the unexpired term of the member affected.
(1977 Code, sec. 13-131)
(a)
The board of adjustment shall adopt rules necessary to the conduct
of its affairs, and in keeping with the provisions of this division.
Meetings shall be held at the call of the chairman and at such times
as the board may determine. The chairman, or in his absence the acting
chairman, may administer oaths and compel the attendance of witnesses.
All meetings shall be open to the public.
(b)
The board of adjustment 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 a public record
and be immediately filed in the office of the board.
(1977 Code, sec. 13-132)
(a)
Any person aggrieved, or any official or department of the governing
body of the city affected by any decision or judgment of the building
official concerning interpretation or administration of this article,
may appeal such decision or judgment to the board of adjustment. Such
appeals shall be taken within a reasonable time not to exceed 10 days
or such other period as may be provided by the rules of the board,
by filing with the building official and with the board of adjustment
a notice of appeal accompanied by a fee as established by the city
council specifying the grounds thereof. The building official shall
forthwith transmit to the board all papers constituting the record
upon which the action appealed from was taken.
(b)
The board of adjustment shall fix a reasonable time for hearing of
appeal, give public notice thereof as well as due notice to the parties
in interest, and decide the same within a reasonable time. At the
hearing, any party may appear in person or by agent or attorney.
(1977 Code, sec. 13-133)
An appeal stays all proceedings in furtherance of the action
appealed from unless the building official from whom the appeal is
taken certifies that the board of adjustment, after the notice of
appeal is filed with him, that by reason of facts stated in the certificate,
a stay would, in his opinion, cause imminent peril to life and property.
In such case, proceedings shall not be stayed other than by a restraining
order which may be granted by the board of adjustment or by a court
of record on application, on notice to the building official from
whom the appeal is taken and on due cause shown.
(1977 Code, sec. 13-134)
(a)
The board of adjustment shall have the following powers and duties:
(1)
Administrative review.
To hear and decide appeals where
it is alleged there is error in any order, requirement, decision,
or determination made by the building official in the enforcement
of this article.
(2)
Exceptions: Conditions governing applications; procedures.
To hear and decide only such exceptions or temporary use permits
as the board of adjustment is specifically authorized to pass on by
the terms of this article; to decide such questions as are involved
in determining whether exceptions should be granted; and to grant
exceptions with such conditions and safeguards as are appropriate
under this article, or to deny exceptions when not in harmony with
the purpose and intent of this article.
(A)
An exception or temporary use permit shall not be granted by the
board of adjustment unless and until:
(i)
A written application for an exception together with fee is
submitted, accompanied by an accurate legal description, maps, site
plans, drawings, and any necessary data, indicating the section of
this division under which the exception is sought and stating the
grounds on which it is requested.
(ii)
Notice shall be given of such public hearing to the owner of
the property for which the exception is sought or his agent and to
all owners of real property lying within 200 feet of the subject property,
such notice to be given not less than 10 days before the date set
for hearing, to all such owners who have rendered their said property
for city taxes as the ownership appears on the last approved city
tax roll. Such notice may be served by depositing same, properly addressed
and postage paid, in the city post office. Where property lying within
200 feet of such property is located in territory which was annexed
to the city after the final date for making the renditions which are
included on the last approved city tax rolls, notice to such owners
shall be by publishing such notice once in the official newspaper
at least 15 days prior to such hearing. Failure of owners to receive
notice of hearing shall in no way affect the validity of action taken.
(iii)
The public hearing shall be held. Any party may appear in person,
or by agent or attorney.
(iv)
The board of adjustment shall make a finding that it is empowered
under the section of this division described in the application to
grant the exception, and the granting of the exception will not adversely
affect the public interest.
(B)
In granting any exception, the board of adjustment may prescribe appropriate conditions and safeguards in conformity with this division. Violation of such conditions and safeguards, when made a part of the terms under which the exception is granted, shall be deemed a violation of this division and punishable under division 13 of this article. The board of adjustment shall prescribe a time limit within which the action for which the exception is required shall be begun or completed, or both. Failure to begin or complete, or both, such action within the time limit set shall void the exception.
(3)
Variances: Conditions governing applications; procedures.
To authorize upon appeal in specific cases such variance from the
terms of this article as will not be contrary to the public interest
where, owing to special conditions, a literal enforcement of the provisions
of this article would result in unnecessary hardship.
(A)
A variance from the terms of this article shall not be granted by
the board of adjustment unless and until:
(i)
A written application for variance together with fee is submitted,
accompanied by an accurate legal description, maps, site plans, drawings,
and any necessary data demonstrating that:
a.
Special conditions and circumstances exist which are peculiar
to the land, structure, or building involved and which are not applicable
to other lands, structures, or buildings in the same district;
b.
Literal interpretation of the provisions of this division would
deprive the applicant of rights commonly enjoyed by other properties
in the same district under the terms of this division;
c.
The special conditions and circumstances do not result from
the actions of the applicant;
d.
Granting the variance requested will not confer on the applicant
any special privilege that is denied by this division to other lands,
structures or buildings in the same district.
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No nonconforming use of neighboring lands, structures, or buildings
in the same district, and no permitted use of lands, structures, or
buildings in other districts shall be considered grounds for the issuance
of a variance.
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(ii)
Notice of public hearing shall be given as in subsection (a)(2)(A)(ii) above.
(iii)
The public hearing shall be held. Any party may appear in person,
or by agent or by attorney.
(iv)
The board of adjustment shall make findings that the requirements of subsection (a)(3)(A)(i) above have been met.
(v)
The board of adjustment shall further make a finding that the
reasons set forth in the application justify the granting of the variance,
and that the variance is the minimum variance that will make possible
the reasonable use of the land, building, or structure.
(vi)
The board of adjustment shall further make a finding that the
granting of the variance will be in harmony with the general purpose
and intent of this division, and will not be injurious to the neighborhood,
or otherwise detrimental to the public welfare.
(B)
In granting any variance, the board of adjustment may prescribe appropriate conditions and safeguards in conformity with this division. Violation of such conditions and safeguards, when made a part of the terms under which the variance is granted, shall be deemed a violation of this division and punishable under division 13 of this article.
(C)
Under no circumstances shall the board of adjustment grant a variance
to allow a use not permissible under the terms of this article in
the district involved, or any use expressly or by implication prohibited
by the terms of this article in said district.
(b)
Decisions of the board of adjustment.
(1)
In exercising the above-mentioned powers, the board of adjustment
may, so long as such action is in conformity with the terms of this
division, reverse or affirm, wholly or partly, or may modify the order,
requirements, decision, or determination appealed from, and may make
such order, requirements, decision, or determination as ought to be
made; and to that end shall have powers of the administrative official
from whom the appeal is taken.
(2)
The concurring vote of four of the members of the board shall be
necessary to reverse any order, requirement, decision, or determination
of the building official, or to decide in favor of the applicant on
any matter upon which it is required to pass under this division,
or to effect any variation in the application of this division.
(1977 Code, sec. 13-135)
Any person or persons, or any taxpayer, department, board, or
bureau of the city aggrieved by any decision of the board of adjustment
may seek review by a court of record of such decision, in the manner
provided by the laws of the state.
(1977 Code, sec. 13-136)
