(A) Establishment.
(1) A Board of Adjustment is hereby established to provide relief in situations of hardship or to hear appeals as provided by this section. The Board shall consist of five regular members, plus one additional alternate member who shall attend and vote only when one of the regular members is unable to attend for any reason. At least one member of the Board shall be a member of the Planning Commission, and the loss of membership on the Planning Commission by such member shall also result in his or her immediate loss of membership on the Board of Adjustment and the appointment of another Planning Commission member to the Board. At least one member of the Board shall reside outside of the corporate boundaries of the city, but within its extra-territorial zoning jurisdiction.
(2) Each member shall be appointed by the Mayor with the approval of the City Council for a three-year term and is removable for cause by the appointing authority upon written charges and after public hearings. Vacancies shall be filled for the unexpired term of any member whose term becomes vacant. The Chairman of the Board shall be elected annually by the members of the Board. All members of the Board shall serve without compensation.
(3) The Board of Adjustment shall adopt rules and regulations in accordance with this chapter and the laws of the state pursuant to Neb. Rev. Stat. §§ 19-901 through 19-914. Meetings shall be held at the call of the Chairman and at such other times as the Board may determine. Such Chairman, or in his or her absence, the acting Chairman, may administer oaths and compel the attendance of witnesses. All meetings and records shall be open to the public. The Board shall keep minutes of its proceedings, showing the vote of each member upon each question, or, if absent or failing to vote, indicating such fact. The Board shall keep a record of its examinations and other official actions, all of which shall be immediately filed in the office of the Board and shall be a public record. A majority of the Board shall constitute a quorum for the transaction of business.
(B) Procedure for appeals.
(1) Appeals shall be made to the Board of Adjustment within reasonable time of the cause of the appeal through the office of the Building Official in written form as determined by the Building Official. The Board shall fix a reasonable time for the hearing of the appeal and shall decide the appeal within 30 days of the date of the public hearing. An appeal stays all proceedings in furtherance of the action, unless the Building Official certifies to the Board that by reason of the facts stated in the certificate, a stay would, in his or her opinion, cause imminent peril to life or property. In such cases, proceedings shall not be stayed otherwise than by a restraining order which may be granted by the Board of Adjustment or by the District Court on notice to said officer and on due cause shown.
(2) The Board shall provide a written notice to the appealing party of the date and time set for public hearing. The Board shall provide a minimum of ten days’ notice of a public hearing on any question before it by publication in a newspaper of general circulation in the city setting forth the time, place and subject matter of such hearing. Notice of hearing shall be posted by the appealing party in a conspicuous place on or near the property upon which action is pending. Such notice shall be not less than 18 inches in height and 24 inches in width with a white or yellow background and black letters not less than one and one-half inches in height. Such posted notice shall be so placed upon such premises that it is easily visible from the street and shall be so posted at least ten days before the date of such hearing. It shall be the duty of the appealing party to make sure the signs are laminated or otherwise protected from the weather so that they remain visible and legible for said ten-day period. It shall be unlawful for any person to remove, mutilate, destroy or change such posted notice prior to such hearing. It shall be the responsibility of the appealing party to make sure the signs remain posted for said ten-day period and in the event any sign is removed, mutilated, destroyed or changed it shall be the duty of the appealing party to promptly post a new sign for the remainder of the ten-day period. The appealing party shall be responsible for filing with the Building Official on the date of the hearing an affidavit of posting notice. Said affidavit shall verify that the requirements concerning posting notice as set forth herein were complied with and said affidavit shall be submitted on a form approved by the Building Official.
(3) Upon the public hearing, any party may appear in person or by agent or attorney. The concurring vote of four out of five members of such Board as so composed shall be necessary to reverse any order, requirement, decision or determination of any Building Official, or to decide in favor of the appellant on any matter upon which it is required to pass under any zoning ordinance, or to affect any variation in such ordinance.
(C) Powers and duties.
(1) The Board of Adjustment shall have only the following powers and duties:
(a) To hear and decide appeals where it is alleged there is error in any order, requirement, decisions or determination made by the Building Official in the enforcement of this chapter or any regulation relating to the location or soundness of structures;
(b) To hear and decide in accordance with the provisions of any zoning regulation, requests for interpretation of any map; and
(c) To authorize, upon appeal, variances from the strict application of this chapter where by reason of exceptional narrowness, shallowness or shape of a specific piece of property at the time of enactment of the zoning regulations; or by reason of exceptional topographic conditions or other extraordinary and exceptional situation or condition of such piece of property, such strict application would result in peculiar and exceptional practical difficulties to or exceptional and undue hardships upon the owner of such property.
(2) No such variance shall be authorized by the Board unless it finds that:
(a) Strict application of the zoning ordinance will produce undue hardship;
(b) Such hardship is not shared generally by other properties in the same zoning district and in the same vicinity;
(c) The authorization of such variance will not be of substantial detriment to adjacent property and the character of the district will not be changed by the granting of the variance;
(d) The granting of such variance is based upon reason of demonstrable and exceptional hardship as distinguished from variations for purposes of convenience, profit or caprice; and
(e) The condition or situation of the property concerned is not of so general or recurring a nature as to make reasonably practicable a general regulation to be adopted as an amendment to this chapter.
(3) The Board of Adjustment shall make findings that the requirements of this division (C) have been met by the applicant for a variance.
(4) Conditions for grant of variance:
(a) In granting any variance, the Board of Adjustment may prescribe appropriate conditions and safeguards in conformity with this chapter. Violation of such conditions and safeguards, when made a part of the terms under which the variance is granted, shall be deemed a violation of this chapter and punishable under § 151.999;
(b) Under no circumstances shall the Board of Adjustment grant a variance to allow a use not permissible under the terms of this chapter in the district involved, or any use expressly or by implication prohibited by the terms of this chapter in said district; and
(c) No non-conforming use of neighboring lands, structures or buildings in the same district and no permitted or non-conforming use of lands, structures or buildings in other districts shall be considered grounds for the issuance of a variance.
(5) The Board has powers of the Building Official on appeals, and can reverse the decisions of Building Official. In exercising the above-mentioned powers, the Board of Adjustment may, so long as such action is in conformity with the terms of this chapter, reverse or affirm, wholly or partly, or may modify the order, requirement, decisions or determination as ought to be made, and to that end shall have the powers of the Building Official from whom the appeal is taken. The concurring vote of four members of the Board shall be necessary to reverse any order, requirements, decision or determination of the Building Official, or to decide in favor of the applicant on any matter upon which it is required to pass under this chapter, or to affect any variation in the application of this chapter.
(Ord. 23-09, passed 8-21-2023) Penalty, see § 151.999