§ 155.061  BOARD OF ADJUSTMENT: PROCEDURE.
   (A)   A Board of Adjustment is hereby established which shall consist of five members and two alternates to be appointed by the City Council, each for a term of two years. Members of the Board of Adjustment may be removed from office by the City Council for cause upon written charges and after public hearing.  Vacancies shall be filled by resolution of the City Council for the unexpired term of the member affected.
      (1)   Proceedings of the Board of Adjustment.
         (a)   The Board of Adjustment shall adopt rules necessary to the conduct of its affairs, and in keeping with the provisions of this chapter. Meetings shall be held at the call of the chairman and at such times as the Board may determine.  The chairman, or in his absence the acting chairman, may administer oaths and compel the attendance of witnesses.  All meetings shall be open to the public.
         (b)   The Board of Adjustment 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, and shall keep records of its examinations and other official actions, all of which shall be a public record and be immediately filed in the office of the Board.
      (2)   Appeals; hearing notice.
         (a)   Any person aggrieved, or any official or department of the governing body of the city affected by any decision or judgment of the Building Official concerning interpretation or administration of this chapter, may appeal such decision or judgment to the Board of Adjustment.  Such appeals shall be taken within a reasonable time, not to exceed 10 days or such other period as may be provided by the rules of the Board, by filing with the Building Official and with the Board of Adjustment a notice of appeal accompanied by a fee as established by the City Council specifying the grounds thereof.  The Building Official shall forthwith transmit to the Board all papers constituting the record upon which the action appealed from was taken.
         (b)   The Board of Adjustment shall fix a reasonable time for the hearing of appeal, give public notice thereof as well as due notice to the parties in interest, and decide the same within a reasonable time.  At the hearing, any party may appear in person or by agent or attorney.
      (3)   Stay of proceedings.  An appeal stays all proceedings in furtherance of the action appealed from, unless the Building Official from whom the appeal is taken certifies to the Board of Adjustment after the notice of appeal is filed with him, that by reason of facts stated in the certificate, a stay would, in his opinion, cause imminent peril to life and property.  In such case, proceedings shall not be stayed other than by a restraining order which may be granted by the Board of Adjustment or by a court of record on application, on notice to the Building Official from whom the appeal is taken and on due cause shown.
   (B)   The Board of Adjustment; powers and duties.  The Board of Adjustment shall have the following powers and duties:
      (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 Building Official in the enforcement of this chapter.
      (2)   Exceptions; conditions governing applications; procedures.
         (a)   To hear and decide only such exceptions or temporary use permits as the Board of Adjustment is specifically authorized to pass on by the terms of this chapter; to decide such questions as are involved in determining whether exceptions should be granted; and to grant exceptions with such conditions and safeguards as are appropriate under this chapter, or to deny exceptions when not in harmony with the purpose and intent of this chapter. An exception or temporary use permit shall not be granted by the Board of Adjustment unless and until:
            1.   A written application for an exception together with fee is submitted, accompanied by an accurate legal description, maps, site plans, drawings and any necessary data, indicating the section of this chapter under which the exception is sought and stating the grounds on which it is requested;
            2.   Notice shall be given of such public hearing to the owner of the property for which the exception is sought or his agent and to all owners of real property lying within 200 feet of the subject property, such notice to be given not less than 10 days before the date set for hearing, to all such owners who have rendered their said property for city taxes as the ownership appears on the last approved city tax roll.  Such notice may be served by depositing same, properly addressed and postage paid, in the city post office. Notice of the time and place of such hearing shall also be given by one publication in the official newspaper at least 15 days prior to such hearing.  Failure of owners to receive notice of hearing shall in no way affect the validity of action taken.
            3.   The public hearing shall be held.  Any party may appear in person, or by agent or attorney.
            4.   The Board of Adjustment shall make a finding that it is empowered under the section of this chapter described in the application to grant the exception, and that the granting of the exception will not adversely affect the public interest.
         (b)   In granting any exception, the Board of Adjustment may prescribe appropriate conditions and safeguards in conformity with the ordinance. Violation of such conditions and safeguards, when made a part of the terms under which the exception is granted, shall be deemed a violation of this chapter and punishable under § 155.999. The Board of Adjustment shall prescribe a time limit within which the action for which the exception is required shall be begun or completed, or both. Failure to begin or complete, or both, such action within the time limit set shall void the exception.
      (3)   Variances; conditions governing applications; procedures.
         (a)   To authorize upon appeal in specific cases such variance from the terms of this chapter as will not be contrary to the public interest where, owing to special conditions, a literal enforcement of the provisions of this chapter would result in unnecessary hardship.  A variance from the terms of this chapter shall not be granted by the Board of Adjustment unless and until:
            1.   A written application for variance together with fee is submitted, accompanied by an accurate legal description, maps, site plans, drawings and any necessary data, demonstrating:
               a.   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.
               b.   That literal interpretation of the provisions of this chapter would deprive the applicant of rights commonly enjoyed by other properties in the same district under the terms of this chapter.
               c.   That the special conditions and circumstances do not result from the actions of the applicant.
               d.   That granting the variance requested will not confer on the applicant any special privilege that is denied by this chapter to other lands, structures or buildings in the same district.
               e.   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.
            2.   Notice of public hearing shall be given as in division (B)(2)(a) 2. above.
            3.   The public hearing shall be held.  Any party may appear in person or by agent or by attorney.
            4.   The Board of Adjustment shall make findings that the requirements of division (B)(3)(a)(1) above have been met.
            5.   The Board of Adjustment shall further make a finding that the reasons set forth in the application justify the granting of the variance, and that the variance is the minimum variance that will make possible the reasonable use of the land, building or structure.
            6.   The Board of Adjustment shall further make a finding that the granting of the variance will be in harmony with the general purpose and intent of this chapter, and will not be injurious to the neighborhood, or otherwise detrimental to the public welfare.
         (b)   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 § 155.999.
         (c)   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.
      (4)   Decisions of the Board of Adjustment.
         (a)   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, requirements, decision or determination appealed from and may make such order, requirements, decision, or determination as ought to be made, and to that end shall have powers of the administrative official from whom the appeal is taken.
         (b)   The concurring vote of four of the 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 effect any variation in the application of this chapter.
   (C)   Appeals from the Board of Adjustment.  Any person or persons, or any board, taxpayer, department, board or bureau of the city aggrieved by any decision of the Board of Adjustment may seek review by a court of record of such decision, in the manner provided by state law.
(Ord. 1100 § 10, passed 4-3-64; Am. Ord. 1100-XX, passed 5-18-81; Am. Ord. 1100-ZZ, passed 7-20-81)  Penalty, see § 155.999