§ 158.091 RULES OF DECISION.
   (A)   In granting any appeal, the Board, in conformity with the provisions of this subchapter, may reverse or affirm, wholly or partly, or may modify the order, requirements, decision or determination appealed from and may make the order, requirements, decision, or determination as ought to be made, and to that end shall have all the power of the officer from whom the appeal is taken.
   (B)   The Board may grant special exceptions restricting the use of residential structures for commercial purposes under the following conditions:
      (1)   Only the following uses shall be eligible for consideration for special exceptions by the Board:
         (a)   All uses permitted in C-O, commercial office use district;
         (b)   All uses permitted in C-R, commercial restricted use district;
         (c)   Assembly halls for non-profit organizations;
      (2)   The proposed use of the structure conforms with the use regulations of the zoning district in which it is located;
      (3)   No further residential use of the premises shall be permitted;
      (4)   No change shall be made in the use of a structure for which a special exception is granted until an additional special exception is granted for the proposed use under the provisions of this subchapter;
      (5)   The structure shall be located a minimum of five feet from all property lines;
      (6)   There shall be a minimum of five off-street parking spaces provided, or the amount specified herein, for the proposed use, whichever is greater. The required spaces shall comply with the application regulations governing locations, access, development, maintenance and screening contained herein;
      (7)   The granting of a special exception shall not confer upon the applicant an exemption from any applicable electrical, plumbing, sewage disposal codes or life safety codes adopted by the city;
      (8)   The structure for which a special exception is sought may be enlarged, provided that the enlargement is in conformity with the requirements of the City Building Code;
      (9)   Should the structure for which a special exception is granted be removed or destroyed by any means to an extent of more than 50% of its replacement cost at the time of destruction, as determined by the city building inspector, it shall not be reconstructed, except in conformity with the City Building Code;
      (10)   Should the structure be moved for any reason for any distance whatsoever, it shall either be removed completely from the lot on which it is situated or brought into conformance with the City Building Code;
      (11)   The applicant for a special exception shall allow the city building inspector to enter the subject premises for inspection prior to the hearing date of the Board of Adjustment;
      (12)   The Board shall find that the proposed use or structure does not constitute a fire or health hazard and will not adversely affect the public interest;
      (13)   These requirements shall not apply to any legally established and operated home occupation, as defined herein, so long as the home occupation is in full compliance with all the applicable regulations contained herein.
   (C)   The Board may grant special exceptions pursuant hereto restricting the location and use of property for oil, gas or mineral production under the following conditions:
      (1)   The well, storage tank, and production facility location must be in conformance with the provisions of §§ 151.01 et seq., provided the Board may vary the location requirements under appropriate circumstances and conditions. The Board of Adjustment shall have no authority to grant a well location which would be located closer than 150 feet to any school, church, business or dwelling.
      (2)   The applicant shall provide the following information:
         (a)   A survey drawn by a registered surveyor showing location of any portion of any dwelling, building or other structure located within 300 feet of the well site;
         (b)   Certification of approval from the State Corporation Commission to commence drilling; and
         (c)   All other information required by §§ 151.01 et seq. and regulations adopted thereunder.
      (3)   The Board shall find that the proposed use does not constitute a fire or health hazard or a nuisance to the surrounding neighbors, that the proposed use does not pose a threat to the surface or groundwater in the city or adjacent areas, and will not adversely affect the public interest.
      (4)   In granting a special exception for oil and gas wells, the Board of Adjustment shall have the authority to impose the conditions upon the granting of the special exception as it deems are necessary for the protection of the health, safety and welfare of the city and in order to carry out the general interest and purpose hereof. In deciding on the granting of special exceptions and in determining appropriate conditions to be imposed, the Board of Adjustment shall consider and specifically address the following factors:
         (a)   Danger of fire and explosion;
         (b)   Adequacy of streets and roads to serve the drilling site;
         (c)   Impact of truck traffic on surrounding neighborhood;
         (d)   Impact of drilling activity on quality of life and environment in area of proposed well;
         (e)   Feasibility of proposed site as contrasted with other available sites;
         (f)   Density of population in area surrounding proposed well site;
         (g)   Accessibility of proposed site to fire, police, and other emergency vehicles;
         (h)   Proximity of proposed site to dwelling, schools, churches and other buildings; and
         (i)   Other public health, safety, welfare or zoning considerations.
   (D)   The Board may grant special exceptions as provided herein to allow the erection of carports, as defined in § 158.002, in the front yard setback under the following conditions:
      (1)   The granting of the special exception will be in harmony with the general intent and purpose hereof.
      (2)   The granting of the special exception will not adversely affect the immediate neighborhood.
   (E)   The Board of Adjustment may grant a special exception hereto to allow the sale of used licensed motor vehicles as an accessory use under the following conditions.
      (1)   The sale of used licensed motor vehicles shall be an accessory use which is customarily associated with the primary use of the primary business, and the accessory use shall be located on the same lot as the primary business.
      (2)   The special exception shall only be granted in the C-H, commercial highway, or C-G, commercial general zoning districts.
      (3)   A license shall be obtained in accordance with the provisions hereof, except the following additional conditions shall be met:
         (a)   There shall be no more than three used licensed motor vehicles offered for sale of which no more than one shall be displayed on the property of the primary business at any given time.
         (b)   The conditions concerning the open display of merchandise in C-G district, as required hereby, shall be met.
         (c)   Signs advertising the sale of used licensed motor vehicles shall be limited to wall signs complying with the sign regulations found in this title, but in no event shall the sign be larger than four feet by eight feet.
   (F)   In order to grant any variance from the terms hereof, the Board must find that all the following conditions are met:
      (1)   Special conditions and circumstances exist which are peculiar to the land, structure or building in the same zoning district;
      (2)   The special conditions and circumstances do not result from the actions of the applicant;
      (3)   Granting the variance requested will not convey on the applicant any special privilege that is denied by ordinance to other lands, buildings or structures in the same zoning district;
      (4)   Literal interpretation of the provisions of the code would deprive the applicant of rights commonly enjoyed by other properties in the same zoning district under the terms hereof and would work unnecessary and undue hardship on the applicant;
      (5)   The variance granted is the minimum variance that will make possible the reasonable use of the land, building or structure;
      (6)   The grant of the variance will be in harmony with the general intent and purpose hereof; and
      (7)   In granting any special exception or variance, the Board may prescribe appropriate conditions and safeguards in conformity herewith.
      (8)   Violation of the conditions and safeguards, when made a part of the terms under which the special exception or variance is granted, shall be deemed a violation hereof.
(Prior Code, § 13-126) (Am. Ord. 1372, passed 5-6-86; Am. Ord. 1426, passed 8-16-88; Am. Ord. 1452, passed 10-3-89; Am. Ord. 1498, passed 3-2-93; Am. Ord. 1974, passed 8-6-19)