(A) General. The City of Austin Board of Zoning Appeals shall be the City of Austin Board of Zoning Appeals created under the provisions of I.C. 36-7-4-900 et seq. It is not intended by this chapter to abrogate, annul, or dismiss the ordinance as constituted at the time of the enactment of this chapter.
(B) Appeals. All matters brought before the Board of Zoning Appeals shall be known as appeals. There shall be three types of appeals, namely:
(1) Appeals from the review of an order, requirement, or decision of the Administrative Zoning Officer. This shall include any interpretation rendered by said officer which an applicant for a permit may deem questionable, or the refusal of the officer to issue a zoning permit;
(2) Appeals in which a person is requesting a special use under the terms of this chapter; and
(3) Appeals requesting variances from the terms of this chapter when it is claimed that the literal enforcement of the provisions of this chapter may cause undue hardship.
(C) Hearings. All appeals shall be subject to public hearing. Prior to any public hearing an appeal shall be filed with the Board in forms supplied by it and in full compliance with established schedules and procedures. The Board shall give notice two times of the hearing in at least one newspaper of general circulation in the county, at least ten days in advance of the hearing. The appellant shall cause the notice of public hearing to be published two times, once each week, as required and shall bear the expense involved in so doing. He or she shall submit a complete list of all property owners within a 250-foot radius of the property with the necessary postage to satisfy the mailing of notices certified mail to such owners, and where a 250-foot radius would include only the immediately abutting properties, irrespective of public ways, the owners of the properties adjoining the immediately abutting properties, in an east, west, north, and south direction, shall be notified. Application for appeal shall be accompanied by a certificate from the Administrative Zoning Officer stating the reasons for the appeal, the date on which he or she refused to issue the permit and all other pertinent information. All hearings and meetings of the Board shall be open to the general public. The applicant may appear in his or her own behalf or by an authorized agent or attorney. The matter may be decided in the applicant’s absence.
(D) Disposition.
(1) The Board shall keep minutes of its meetings and hearings showing the vote of each member upon each question or, if absent or failing to vote, indicating such fact. Should the applicant fail to appear at the hearing or to appoint an agent or attorney to represent him or her, the Board may dismiss the case or rule accordingly.
(2) Decisions of the Board shall be made within 30 days from the time of the hearing and shall be entered in the minutes. The decisions shall include the reasons, the summary of evidence introduced, and the findings of fact made by the Board. When a variance is granted the record shall state in detail any exceptional difficulty and unnecessary hardship upon which the appeal was based. The Board's decision may reverse, affirm, wholly or partly, the ruling of the Administrative Zoning Officer and shall be final unless judicial review is sought by the applicant.
(E) Vote. The concurring vote of the majority of the members of the Board shall be necessary to grant an appeal. Failure of a motion to receive such majority shall constitute a denial of the appeal. Decisions of the Board shall be available for inspection during normal office hours.
(F) Withdrawal. An applicant may, in writing, withdraw his or her appeal at any time prior to the hearing or he or she may do so verbally at the hearing.
(G) Time limitation. An appeal shall not be taken after 15 days have elapsed from the time of a zoning permit or a certificate of occupancy were denied by the Administrative Zoning Officer, if an appeal is granted by the Board, all necessary permits shall be obtained within 90 days, and construction shall be completed within six months from the time of the Board’s action, unless otherwise directed by the Board.
(H) Hearing. No second hearing shall be entertained by the Board on a case ruled upon by it, unless new facts and evidence are submitted which, in the Board’s judgment, materially changes the case. A plea for such second hearing shall be requested in writing to the Board. The Board shall determine prior to scheduling a second hearing if such facts and evidence do exist. Change in ownership of the property affected by an appeal shall be insufficient reason for hearing. Should the Board, at a regularly scheduled meeting, decide that there are substantial grounds for a second hearing and it is fully satisfied that new evidence has been submitted, the applicant shall be advised in writing of the Board’s ruling and will then be entitled to refile for rehearing in conformance with established schedules and procedures. The proper legal notices shall be published and all interested parties shall be duly notified.
(I) Advice. No informal request for advice, or moot questions, shall be considered by the Board. Any advice, opinion, or information given by a Board member shall not be binding on the Board.
(J) Proof for a variance. It shall be incumbent upon an applicant to conclusively prove at the public hearing that, if he or she is compelled to meet the provisions of this chapter he or she cannot secure reasonable use of his or her property and:
(1) The grant will not be injurious to the public health, safety, and general welfare;
(2) The use or value of the land or area adjacent to the property included in the variance will not be adversely affected;
(3) The need for the variance arises from some condition peculiar to the property involved and does not exist in similar property in the same district;
(4) The strict application of the terms of this chapter will constitute an unusual and unnecessary hardship as applied to the property in which the variance is sought; and
(5) That such variance is necessary for the preservation and enjoyment of a substantial property right possessed by other property in the same vicinity and district but which is denied to the property in question.
(Ord. 1991-07, passed 1-7-1991)