The Board of Appeals shall have all the appropriate power and duties prescribed by law, and by this Ordinance. The Board shall have the following duties and powers:
(a) Administrative Review: To hear and decide appeals only in such cases where it is alleged there is error in any order, requirement, decision, or determination made by the Enforcing Officer in the enforcement of this Ordinance. The concurring vote of four members of the Board shall be necessary to reverse any order, requirement, decision, or determination of the Enforcing Officer, or to decide in favor of the applicant on any matter upon which they are required to pass under the terms of this Ordinance.
(b) Determination of Similar Uses: To determine if uses not specifically mentioned in this Ordinance are similar to uses permitted within a district.
(c) Determination of District Boundary Location: To determine the exact location of any district boundary if there is uncertainty as to exact location thereof. In making such determination the Board shall be guided by the provisions of Section 1109.03.
(d) Conditional Use Permits: To hear and decide only such conditional uses as the Board of Appeals is specifically authorized to pass on under the terms of this Ordinance, or to deny conditional use permits when not in harmony with the intent and purpose of this Ordinance. The following requirements shall be complied with prior to any approval or denial of a conditional use permit by the Board of Appeals:
(1) A written application for a conditional use is submitted indicating the section of this Ordinance under which the conditional use is sought and stating the grounds on which it is requested.
(3) The Board of Appeals shall determine:
A. Authority: If it has the authority to grant the request.
B. Adverse affect: That the granting of the conditional use will not adversely affect the neighborhood in which the conditional use is to be located.
(4) Conditions: In granting any conditional use permit, the Board of Appeals may prescribe appropriate conditions and safeguards in conformity to the provisions of this Ordinance and the recommendation of the Planning Commission. The Board of Appeals shall require a bond to assure conformance to such conditions and safeguards as may be necessary. Violation of such conditions and safeguards shall cause the performance bond mentioned above to be forfeited and shall be deemed a violation of this Ordinance and punishable under Section 1141.99. A conditional use permit shall expire in one year after it is issued unless actual construction has taken place or is underway except as provided elsewhere in this Ordinance.
(e) Variances: To vary the strict application of any of the requirements of this Ordinance in the case of exceptionally irregular, narrow, shallow or deep lots, or other exceptional physical conditions, whereby such strict application would result in practical difficulty or unnecessary hardship - not economic in nature - that would deprive the owner of the reasonable use of the land or building involved but in no other case. The fact that another use would be more profitable is not a valid basis for legally granting a variance. No non-conforming 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. No variance in the strict application of this Ordinance shall be granted by the Board of Appeals unless and until th applicant submits, and the Board concurs, with the following:
(1) Condition and circumstances: That 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.
(2) Property rights: That literal interpretation of the provisions of this Ordinance would deprive the applicant of property rights commonly enjoyed by other properties in the same district under the terms of this Ordinance.
(3) Applicant not at fault: That the special conditions and circumstances do not result from the actions of the applicant, his agents or prior property owners.
(4) No special privilege: That granting the variance requested will not confer on the applicant any special privilege that is denied by this Ordinance to other lands, structures, or buildings in the same district.
(5) Harmony with locality: That the variance requested shall not alter the essential character of the locality. In making this determination, the Board of Appeals shall be advised by the recommendation of the Planning Commission.
(Ord. 0-9-71. Passed 12-23-71.)
(6) Variances not required: Variances will not be required for zoning permits when all of the following conditions exist:
A. The structure in question existed in its present location before the Zoning Ordinance went into effect (1971).
B. The remodeling, replacement or change of use will not increase the non-conformity of front, side or rear yard requirements.
C. Extension or addition to the structure will not violate the yard requirements in the direction of the addition or extension.
D. The reconstruction or replacement of such structure shall take place in not more than 24 months.
(Ord. 0-84-9. Passed 1-10-85.)
(f) Procedure for Consideration of Petitions for Variances:
(1) The Board of Appeals shall make a finding that the reasons set forth in the application are valid and justify the granting of the variance. The Board shall also determine if the variance is the minimum variance that will make possible the reasonable use of land, building or structure.
(2) Under no circumstances shall the Board of Appeals grant a variance which will permit a use which is not permitted in the district involved.
(3) Conditions: The Board of Appeals may prescribe appropriate conditions and safeguards in conformity with this Ordinance and the recommendations of the Planning Commission. The Board of Appeals shall require a bond or irrevocable letter of credit to assure conformance to such conditions and safeguards as the Board may require.
(4) Violation of such conditions and safeguards when such are made a part of the terms under which a variance is granted, shall cause the bond mentioned in subsection (f)(3) hereof to be forfeited and shall be deemed in violation of this Ordinance and punishable under Section 1141.99.
(5) Public hearings: Prior to taking action on a request for a variance the Board of Appeals shall hold a public hearing and give notice to property owners as in Section 1145.07.
(g) Effective date: The decision of the Board of Appeals shall not become final until the expiration of five (5) days from the date of entry of such order unless the Board shall find the immediate effect of such order is necessary for the preservation of property or personal rights and shall so certify on the record.
(Ord. 0-9-71. Passed 12-23-71.)