(A) Types of appeals. The Board shall hear and decide all appeals from and review any order, requirement, decision or determination made by the Zoning Administrator. It shall also hear and decide all matters referred to it or upon which it is required to pass by this chapter. In deciding appeals, it may hear both those based upon an allegedly improper or erroneous interpretation of this chapter and those based upon alleged hardship resulting from strict interpretation of this chapter.
(B) Procedure for filing appeals. No appeal shall be heard by the Board unless notice thereof is filed within 30 days after the interested party or parties receive notice of the order, requirement, decision or determination by the Zoning Administrator. The applicant must file his or her application for a hearing with the Zoning Administrator, who shall act as clerk for the Board in receiving this notice. All applications shall be made upon the form specified by the town for that purpose, and all information required thereon shall be complete before an appeal shall be considered as having been filed.
(C) Hearings.
(1) Time. After receipt of notice of appeal, the Board Chairperson shall schedule the time for a hearing, which shall be at a regular or special meeting within 36 days from the filing of such notice of appeal.
(2) Notice. The Board shall give public notice of the hearing in a newspaper published in the county by advertisement published at least five days prior to the date of the hearing. The Board shall mail notices of the hearing to the parties to the action appealed from, and to such other persons as the Zoning Administrator shall direct, at least five days prior to the hearing. Such notice shall state the location of the building or lot, the general nature of the question involved in the appeal and the time and place of the hearing.
(3) Conduct of hearing.
(a) Any party may appear in person or by agent or by attorney at the hearing. The order of business for hearing shall be as follows:
1. The Chairperson, or such person as he or she shall direct, shall give a preliminary statement of the case;
2. The applicant shall present the argument in support of his or her application;
3. Persons opposed to granting the application shall present the argument against the application;
4. Both sides will be permitted to present rebuttals to opposing testimony; and
5. The Chairperson shall summarize the evidence which has been presented, giving the parties opportunity to make objections or corrections.
(b) Witnesses may be called and factual evidence may be submitted, but the Board shall not be limited to consideration of such evidence as would be admissible in a court of law. The Board may view the premises before arriving at a decision. All witnesses before the Board shall be placed under oath and the opposing party may cross-examine them.
(4) Re-hearings. An application for a rehearing may be made in the same manner as provided for an original hearing. Evidence in support of the application shall initially be limited to that which is necessary to enable the Board to determine whether there has been a substantial change in the facts, evidence or conditions in the case. The application for rehearing shall be denied by the Board if from the record it finds that there has been no substantial change in facts, evidence or conditions. If the Board finds that there has been a change, it shall thereupon treat the request in the same manner as any other application.
(D) Decisions.
(1) Time. Decisions by the Board shall be made not more than 30 days from the time of hearing.
(2) Form. Written notice of the decision in a case shall be given to the applicant by the Secretary as soon as practicable after the case is decided by certified or registered mail. Also, written notice shall be given to owners of the subject property (if not the applicant) and to other persons who have made a written request for such notice. The final decision of the Board shall be shown in the record of the case as entered in the minutes of the Board and signed by the Secretary and the Chairperson upon approval of the minutes by the Board. Such record shall show the reasons for the determination, with a summary of the evidence introduced and the findings of fact made by the Board. Where a variance is granted, the record shall state in detail any exceptional difficulty or unnecessary hardship upon which the appeal was based and which the Board finds to exist. The decision may reverse or affirm, wholly or partly or modify the order, requirement, decision or determination appealed from. Where conditional use is granted, the record shall state in detail any facts supporting findings required to be made prior to the issuance of such permit. The record shall state in detail what, if any, conditions and safeguards are imposed by the Board in connection with the granting of a variance or a conditional use.
(3) Expiration of permits. Unless otherwise provided by law, any order or decision of the Board granting conditional use or variance shall expire if the applicant does not sign acknowledging acceptance of the permit within 60 days of such order or decision. The issuance of such permits is also subject to the time limitations set forth in § 152.242 of this chapter.
(4) Voting at hearings. The concurring vote of four-fifths of the Board shall be necessary to grant a variance. A majority of the members shall be required to decide any other quasi-judicial matter or to determine an appeal made in the nature of certiorari. For purposes of the section, vacant positions on the Board and members who are disqualified from voting on a quasi-judicial matter shall not be considered members of the Board for calculation of the requisite majority if there no qualified alternates available to take the place of such members.
(5) Public record of decisions. The decisions of the Board, as filed in its minutes, shall be a public record, available for inspection at all reasonable times.
(E) Intervention. Any individual or organization who wishes to intervene as a party to any matter before the Board of Adjustment shall complete an application to intervene upon a form which may be obtained from the Zoning Administrator. Such application shall state the proposed intervener’s interest relating to the property or hearing, any practical impairment of the protection of the interest if not allowed to intervene as a party, and whether there is inadequate representation of that interest by existing parties. Such application shall be filed with the Zoning Administrator at least 24 hours prior to the scheduled time for the hearing of the matter before the Board. The Board may waive the deadline for the filing of this application upon good cause being shown for the failure to timely file to intervene. Upon a hearing on the motion to intervene, the Board of Adjustments shall determine whether intervention is appropriate.
(Ord. passed 3-14-2005; Ord. passed 10-14-2013; Ord. passed 10-10-2016; Ord. passed 3-14-2019, § 1110; Ord. passed 8-12-2019)