The Board of Adjustment shall have the powers and duties enumerated below:
1. Administrative review. To hear and decide appeals where it is alleged there is error in any order, requirement, decision or determination made by the Zoning Enforcement Officer in the enforcement of this chapter. A majority vote of the Board of Adjustment members is required to decide any appeal.
2. Special uses. To grant in particular cases and subject to the appropriate conditions and safeguards, permits for special uses as authorized by this chapter and set forth as special uses under the various use districts. A majority vote of the Board of Adjustment members is required to grant any special use. The Board shall not grant a special use permit unless and until:
a. A written application for a special use permit is submitted to the Zoning Enforcement Officer indicating the section of this chapter under which the special use permit is sought;
b. A public hearing is held. In accordance with Section 9-3-264, notice of such public hearing shall be mailed to the person or entity whose appeal, application or request is the subject of the hearing, to the owner of the property that is the subject of the hearing if the owner did not initiate the hearing, to the owners of all parcels of land abutting the parcel of land that is the subject of the hearing or within one hundred (100) feet of the property for which the special use permit is sought.
c. The Board of Adjustment finds that in the particular case in question the use for which the special use permit is sought.
1. Does not materially endanger the public health or safety.
2. Meets all required conditions and specifications
3. Would not substantially injure the value of adjoining property or, that if it does, there is a public necessity for siting the use as proposed.
4. Will be in harmony with the area in which it is located and will be in general conformity with adopted plans (including but not limited to Thoroughfare Plans, Metropolitan Transportation Plans, Small Area Plans, Action Plans, Comprehensive or Land Development Plans, Recreation Plans, Downtown Development Plans and Economic Development Plans).
d. Compliance with other codes. Granting a special use permit does not exempt the applicant from complying with all of the requirements of building codes or other ordinances.
e. Revocation. If at any time after a special use permit has been issued, the Board of Adjustment finds that the conditions imposed and agreements made have not been or are not being fulfilled by the holder of a special use permit, the permit shall be terminated and the operation of such a use discontinued. If a special use permit is terminated for any reason, it may be reinstated only after a public hearing is held.
f. Expiration. In any case where a special use permit has not been exercised within the time limit set by the Board of Adjustment or within a period of one year if no specific time limit has been set the without further action the permit shall be null and void. Exercised, as set forth in this division, shall mean that binding contracts for construction of the main building shall have been let, or in the absence of contracts, that the main building is under construction to a substantial degree, or that prerequisite conditions involving substantial investment are contracted for, in substantial development, or completed (sewerage, drainage, etc). When construction is not a part of the use, exercised shall mean that the use is in operation in compliance with the conditions set forth in the permit.
g. Careful record. A careful record of such application and plat, together with a record of the action taken thereon, shall be kept in the office of the Zoning Enforcement Officer.
h. Minor modifications to a special use permit may be administratively approved by the zoning administrator if issues arise after the special use permit has been approved by the Board of Adjustment that keep the applicant from carrying out the strict interpretation of the ruling. The Zoning Administrator is authorized to review and approve administratively a minor modification to an approved special use permit. Minor modifications include reconfiguring parking design, changing landscaping or buffering arrangements, or slightly altering road and lot configurations for a development that has already gone through the full approval process, or similar minor modifications subject to the following limitations.
(1) General Limitations. The minor modification:
A. Does not involve a change in uses permitted or the density of overall development permitted;
B. Does not increase the impacts generated by the development on traffic or similar impacts beyond what was projected for the original development approval; and
C. Meets all other ordinance requirements.
D. An adjustment to landscape standards up to 10% percent of required landscaping.
3. Variances. To authorize upon appeal in specific cases such variances from the terms of this chapter as will not be contrary to the public interest where, owning to special conditions, a literal enforcement of the provisions of the chapter will, in an individual case, result in practical difficulty or unnecessary hardship, so that the spirit of the chapter shall be observed, public safety and welfaresecured, and substantial justice done. To vary any provisions of this article, a concurring four-fifths (4/5) vote of the members of the Board is required. The existence of a non-conforming use of neighboring land, buildings, or structures in the same district or of permitted or non-conforming uses in other districts shall not constitute a reason for the requested variance. When unnecessary hardships would result from carrying out the strict letter of a zoning ordinance, the Board of Adjustment may vary any of the provisions of the ordinance upon a showing of the following:
a. Unnecessary hardship would result from the strict application of the ordinance. It shall not be necessary to demonstrate that in the absence of the variance, no reasonable use can be made of the property.
b. The hardship results from conditions that are peculiar to the property such as location, size, or topography. Hardships resulting from personal circumstances, as well as hardships resulting from conditions that are common to the neighborhood of the general public may not be the basis for granting a variance.
c. The hardship did not result from the actions taken by the applicant or the property owner. The act of purchasing the property with knowledge that the circumstances exist that may justify the granting of a variance shall not be regarded as self- created hardship.
d. The requested variance is consistent with the spirit, purpose and intent of the ordinance, such that public safety, is secured and substantial justice is achieved.
e. Appropriate conditions may be imposed on any variance provided that the conditions are reasonable and related to the variance.
f. The variance is not a request to permit a use of land, building or structure which is not permitted by right or by special exception in the district involved.
g. Any other ordinance that regulates land use or development may provide for variances consistent with the provisions of this division.
4. Decision of the Board of Adjustment. In exercising the above mentioned power, the Board of Adjustment may reverse or affirm, wholly or in part, or may modify any order, decision or determination and to that end shall have the power of the official from whom the appeal is taken. (Ord. of 12-7-04, No. 37-02; Ord. of 8-7-06, No. 18-06; Ord. of 3/3/14, No. 09-13; Ord. of 9-26-16, No. 06-16; Ord. of 6-21-21, No. 41-21)