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(A) General grant of power.
(1) The Zoning Board of Appeals shall adopt the rules of procedure, not inconsistent with the provisions of the state statutes and local ordinances, as it may deem necessary to the proper performance of its duties and the proper exercise of its powers.
(2) Meetings of the Board of Appeals shall be held at the call of the Chairperson and at other times as the Board of Appeals may determine. The Chairperson, or in his or her absence, the acting Chairperson, may administer oaths and compel the attendance of witnesses.
(3) Hearings of the Board of Appeals shall be public. The Board of Appeals shall keep minutes of its proceedings showing the action of the Board of Appeals and the vote of each member upon each question, or if absent or failing to vote, indicating that fact, and shall keep records of its examination and other official actions, all of which shall be immediately filed in the office of the Board of Appeals and shall be a public record.
(4) The Board of Appeals shall hear and decide appeals from and review any order, requirements, decisions or determination made by the Zoning Official or body charged with enforcement of this chapter. The Board of Appeals shall also hear and decide matters referred to them or upon which they are required to pass under an ordinance of the legislative body adopted pursuant to the Zoning Enabling Act.
(5) An appeal to the Board of Appeals in cases in which it has original jurisdiction under the provisions of this chapter may be taken by any property owner, including a tenant, or by a government office, department, board or bureau. An application for the appeal shall be filed with the Zoning Official who shall transmit the same, together with all the plans, specifications and other papers pertaining to the application, to the Board of Appeals.
(B) Membership and appointment.
(1) Pursuant to state statutes, there is hereby created a Zoning Board of Appeals. City Council will act as the Zoning Board of Appeals pursuant to City Charter § 6.9.
(2) Voting: the concurring vote of a majority of the members of the Board shall be necessary to reverse an order, requirement, decision or determination of the Zoning Official, or to decide in favor of the applicant a matter upon which the Board of Appeals is required to pass under the terms of an ordinance, except that a concurring vote of two-thirds of the members of the Board of Appeals shall be necessary to grant a variance from uses of land permitted in an ordinance.
(C) Appeal procedure.
(1) An appeal may be taken by a person aggrieved, or by an officer, department, board or bureau of the city. The appeal shall be taken within 30 days of the date of the decision appealed from, as prescribed by the rules of the Board of Appeals, by the filing with the officer or body from whom the appeal is taken shall immediately transmit to the Board all the papers constituting the record upon which the action appealed was taken.
(2) Stay of proceedings: an appeal stays all proceedings in furtherance of the action appealed from unless the officer or body from whom the appeals is taken certifies to the Board of Appeals, after the notice of appeal is filed, that by reason of facts stated in the certificate, a stay would in the opinion of the officer or body cause imminent peril to life or property, in which case proceedings shall not be stayed otherwise than by a restraining order. This restraining order may be granted by the Board of Appeals or circuit court, on application of, or notice to the officer or body from whom the appeal is taken and on due cause shown.
(3) Decisions on appeals and applications: the Zoning Board of Appeals shall render its decision upon any appeal or application submitted to it within 60 days after the hearing thereon, and in any event, within 90 days after the date of filing of the appeal or application; upon failure to do so, the appeal or application shall thereupon be deemed to be decided adversely to the appellant or applicant in the same manner as though the Board had rendered its decision to that effect. All decisions of the Zoning Board of Appeals shall become final five days after the date of entry of an order, unless the Board shall find, and so certify on the record, that it is necessary to cause the order to have immediate effect, in order to preserve property or personal rights.
(4) Appeals to circuit court:
(a) The decision of the Board of Appeals shall be final. However, a person having an interest affected by the zoning ordinance may appeal to the circuit court. Upon appeal, the circuit court shall review the record and decision of the Board of Appeals to insure that the decision:
1. Complies with the constitution and laws of the state;
2. Is based upon proper procedure;
3. Is supported by competent, material and substantial evidence on the record; and
4. Represents the reasonable exercise of discretion granted by law to the Board of Appeals.
(b) As a result of the court’s review, the court may affirm, reverse or modify the decision of the Board of Appeals.
(D) Variance procedures.
(1) Grant of power for variances. In addition to other duties and powers specified herein, the Zoning Board of Appeals, after public hearing, shall have the power to authorize a land use or structural variance from the provisions of this chapter where it is alleged by the applicant that either:
(a) By reason of the exceptional narrowness, shallowness or shape of a specific piece of property on the effective date of this chapter, or by reason of exceptional topographic conditions or other extraordinary situation or condition of the land, building or structure or by reason of the use or development of property immediately adjoining the property in question, the literal enforcement of the requirements of this chapter would involve practical difficulties or would cause undue hardship;
(b) There are practical difficulties or unnecessary hardship in the way of carrying out the strict letter of this chapter relating to the construction, structural changes in equipment or alterations of buildings or structures or the use of the land, buildings or structures; or
(c) The condition or situation of the specific property or the specific intended use of the property is not of a general or recurrent nature as to make the formulation of general regulations in this chapter practical.
(2) Variances prohibited. A variance may be allowed by the Zoning Board of Appeals only in cases where there is reasonable evidence in the official record of the hearing that:
(a) The alleged practical difficulties or unnecessary hardships are present;
(b) The variance will not be detrimental to adjacent property and the surrounding neighborhood;
(c) The variance will not impair the intent and purpose of this chapter; and
(d) At least two of the following conditions are found to exist:
1. There are exceptional or extraordinary circumstances or conditions applying to the property in question or to the intended use of the property that do not apply generally to other properties in the same zoning district;
2. The conditions or situation of the specific piece of property or the intended use of the property for which the variance is sought, is not of so general or recurrent a nature as to make reasonably practicable the formulation of a general regulation for the conditions or situation; and/or
3. The variance is necessary for the preservation and enjoyment of a substantial property right similar to that possessed by other properties in the same zoning district and in the vicinity. The possibility of increased financial return shall not of itself be deemed sufficient to warrant a variance.
(E) Temporary uses and public utility permits.
(1) The temporary use of a building or premises in any district for purposes of use that do not conform to the regulations prescribed by this chapter for the district in which it is located is permitted upon permit granted by the Zoning Board of Appeals, provided that the use be of a true temporary nature and does not involve the erection of substantial buildings. The permit shall be granted in the form of a temporary and revocable permit for not more than a 12-month period, subject to such conditions as will safeguard the public health, safety, convenience and general welfare.
(2) The temporary use of a building or premises in undeveloped sections for a purpose that does not conform to the regulations prescribed by this chapter for the district in which it is to be located is permitted upon permit granted by the Zoning Board of Appeals, provided that the structure or use is of a true temporary nature, is promotive of or incidental to the development of the undeveloped sections, and does not involve the erection of substantial buildings. The permit shall be granted in the form of a temporary and revocable permit for not more than a 12-month period, subject to the conditions as will safeguard the public health, safety, convenience and general welfare.
(3) Public utilities: the Board of Appeals shall have the power to permit the erection and use of a building of a public service corporation of for public utility purposes in any permitted district to a greater height or larger area than the district requirements herein established, and permit the location in any use district of a public utility building, structure or use if the Board of Appeals shall find the use, height, area, building or structure reasonably necessary for the public convenience and service and provided the building, structure or use is designed, erected and landscaped to conform harmoniously with the general architecture of the district.
(F) Interpretation of map. Where a street or lot layout actually on the ground, or as recorded, differs from the street and lot lines as shown on the zoning map, the Board of Appeals, after notice to the owners of the property and the immediate adjoining property and after public hearing, shall interpret the map in a way so as to carry out the intent and purposes of this chapter for the particular section or district in question.
(G) Public hearing.
(1) Upon the filing of any appeal or application as hereinafter provided, or upon any other application in any matter or proceeding over which the Zoning Board of Appeals shall have jurisdiction by law or ordinance, the Zoning Board of Appeals shall hold a public hearing on the appeal or application.
(2) The hearing shall be held at the next meeting of the Board to be held not less than 15 days after the date of the filing. The Zoning Board of Appeals shall cause notice of the time, and place of the hearing to be given to the appellant or applicant and shall also cause notice of the time, place and purpose of the hearing to be given to all owners of property within 300 feet of the property to be affected by the appeal or application, and to the occupants of all single and two-family dwellings within 300 feet of the property.
(3) The notice shall be given by certified mail or an affidavit of mailing maintained, sent to the respective address of the owners and occupants, as listed in the city tax rolls, or the notice may be delivered by handing a copy thereof to the property owners and occupants personally and obtaining their certifying signatures evidencing the delivery.
(a) If the name of any occupant is not known, the term “occupant” may be used in addressing any notices sent by certified mail.
(b) Where ownership is in more than one person, a partnership, a corporation, an infant or a trust, service upon any one of the owners or partners, an officer or registered agent of the corporation, the guardian or parent of the infant or trustee of the trust, as the case may be, shall be sufficient.
(c) At the hearing, any party may appear in person, or by an attorney or agent.
(H) Fees. Upon the filing of any appeal or application to the Zoning Board of Appeals by any person other than an officer, department, board or agency of the city, the appellant or applicant shall pay a fee set by the City Council, to defray the cost of hearing and recording the matter. In addition, if testimony is to be taken stenographically, the cost of doing so and of transcribing the same shall be borne and paid for by the appellant or applicant, and the Zoning Board of Appeals my require the deposit to be made for the purpose as shall be reasonable in the circumstances.
(I) Time limit for construction.
(1) If a variance is granted or the issuance of a permit is finally approved or other action by the appellant or applicant is authorized, any necessary permits shall be secured and the authorized action, construction or use begun within three months after the date when the variance is finally granted, or the issuance of the permit or permits is finally approved or the other action to be taken by the appellant or applicant is authorized; and the structure, building or alteration, as the case may be, shall be completed within 12 months of the date.
(2) For good cause shown, the Zoning Board of Appeals may, upon application in writing stating the reasons thereof, extend either the three-month or the 12-month period for further time as the Zoning Board of Appeals may, in its sole discretion, deem sufficient.
(3) Should the appellant or applicant fail to obtain any necessary permit or permits within the three-month period, or having obtained the same, should fail to commence work, or to take action or to exercise a use authorized thereunder within the three-month period, it shall be conclusively presumed that the appellant or applicant has waived, withdrawn and abandoned his or her appeal or his or her application, and all permissions, permits and variances to him or her granted by reason of the appeal or application shall be deemed automatically rescinded by the Zoning Board of Appeals.
(4) Should the appellant or applicant commence any required construction or alteration within the three-month period, but should he or she fail to complete the construction or alteration within the 12-month period, the Zoning Board of Appeals may, upon ten days written notice, rescind or revoke the granted variance, or the issuance of the permit or permits, or the right to take other action as may have been authorized to the appellant or applicant, if the Board finds that no good cause appears for the failure.
(J) Employees. The Zoning Board of Appeals may employ clerical or other assistance as may be necessary, provided that it shall not at any time incur any expense beyond the amount of the appropriation made and then available for that purpose.
(K) Minutes and records. The Secretary of the Zoning Board of Appeals shall keep minutes of the substance of all testimony and of the Board’s proceedings, showing the vote of each member upon every question, or if absent or failing to vote, indicating that fact. The Secretary shall keep records of the Zoning Board of Appeals examinations and official actions, all of which shall be immediately filed in the office of the Zoning Board of Appeals and shall be a public record.
(Ord. 161, passed 12-10-2001)