(A) A Board of Adjustment and Appeals is hereby created, which shall consist of five members appointed by the Mayor with the approval of the City Council. Each member shall serve for a term of three years and until his or her successor is appointed and qualified, but of the members first appointed pursuant to this section, two shall serve for terms of one year, two for terms of two years and one for a term of three years. Vacancies shall be filled by the Mayor, with the approval of the Council, for the unexpired portion of the term. Any appointed member may be removed by the appointing authority for cause upon written charges presented at a public hearing.
(B) Three-fourths of the members of the Board shall constitute a quorum for the transaction of business, but a smaller number may adjourn from time to time. Three-fourths of the Board must agree for any action to be taken. The Board shall keep a written record of all its proceedings, which shall include minutes of its meetings showing the vote of each member, or if absent or failing to vote, an indication of such fact; records of its examinations and official actions; its findings; and final orders indicating the action taken on each matter heard by the Board.
(C) The Board shall adopt rules for its own proceedings, which shall provide, among other things, for regular meetings at the call of the Chairperson and at such other times as the Board may determine. The rules shall also provide for a time limit within which appeals may be taken as provided herein. The Board shall annually select a chairperson, vice-chairperson and secretary. No member of the Board shall receive compensation, except as fixed by the Council.
(D) Subject to appeal to a court of record, as provided in SDCL § 11-4-25, the Board of Adjustment and Appeals must hear and decide appeals and requests in the following cases:
(1) Appeals wherein an error is alleged in any order, requirement, decision or determination made by an administrative officer in the enforcement of this chapter;
(2) Applications for special use permits; and
(3) Requests for variances from the literal provisions of this chapter whenever strict enforcement of the same would result in unnecessary hardship because of circumstances unique to the individual property under consideration.
(E) Appeals from an administrative order or decision must be taken within 45 days by filing a notice of appeal with the officer from whom the appeal is taken and the Secretary of the Board. Upon receipt of the notice of appeal, the officer from whom the appeal is taken shall forthwith transmit to the Board all the papers constituting the record upon which the action appealed from was taken. Within 30 days after the appeal is filed, the Board of Adjustment and Appeals must set a date for a hearing thereon, give public notice thereof and hear such persons as may wish to be heard, either in person or by attorney. Notice of the hearing shall be mailed not less than ten days before the date thereof to the person or persons who filed the appeal. Within a reasonable time after the hearing, the Board shall make its order deciding the matter, and a copy thereof shall be served forthwith upon the appellant by mail. The Board may reverse or affirm, wholly or partly, or may modify the order, requirement, decision or determination appealed from and may make such order, requirement, decision or determination as ought to be made.
(F) Requests for variances must be filed in writing with the Secretary of the Board of Adjustment and Appeals and shall state fully the grounds therefor and the facts relied upon by the applicant. Within 60 days after the request is filed, the Board of Adjustment and Appeals shall set a date for a hearing therein, give public notice thereof and shall hear such persons as wish to be heard, either in person or by agent or attorney. Notice of the hearing shall be mailed to the person or persons who filed the request. Within a reasonable time after the hearing, the Board shall make its order deciding the matter, and a copy thereof shall be served forthwith upon the appellant or applicant by mail.
(G) In granting a variance, the Board of Adjustment and Appeals may attach thereto such conditions as it deems necessary to secure compliance and protect adjacent properties. The Board may not permit as a variance any use that is not permitted under city ordinance for property in the district wherein the property is located.
(H) No variance shall be granted or recommended unless the Board finds that:
(1) Special circumstances or conditions affecting the property are such that strict enforcement of the provisions of this chapter would deprive the applicant of the reasonable use of his or her land;
(2) The variance is necessary for the preservation and enjoyment of a substantial property right; and
(3) The variance will not be detrimental to the public welfare nor injurious to other property in the area in which the affected property is located.
(I) The concurring vote of four members of the Board will be necessary to reverse any order, requirement, decision or determination of an administrative officer, to decide in favor of the applicant on any matter upon which it is required to pass pursuant to this chapter or to effect any variation in such chapter.
(Prior Code, § Q-11-103) (Ord. 818, passed - -)
Statutory reference:
Related provisions, see SDCL §§ 11-4-14 through 11-4-17, 11-4-19 through 11-4-23 and 11-14-13