(A) Establishment. A Board of Adjustments and Appeals, composed of the members of the Planning Commission, is hereby established.
(B) Powers and duties.
(1) Appeals to the Board of Adjustments and Appeals may be taken by any affected person upon compliance with conditions imposed by the zoning provisions of the city code.
(2) The Board shall have the following powers with respect to the zoning provisions:
(a) To hear and decide appeals where it is alleged that there is an error in any order, requirement, decision or determination made by an administrative officer in the enforcement of the zoning provisions of the city code; and
(b) To hear requests for variances from the literal provisions of the zoning provisions of the city code in instances where their strict enforcement would cause undue hardship because of circumstances unique to the individual property under consideration and to grant the variances only when it is demonstrated that the actions will be in keeping with the spirit and intent of the zoning provisions.
(3) UNDUE HARDSHIP as used in connection with the granting of a variance means the property in question cannot be put to a reasonable use if used under conditions allowed by the official controls, the plight of the owner is due to circumstances unique to his or her property not created by the owner, and the variance, if granted, will not alter the essential character of the locality.
(4) Economic considerations alone shall not constitute an undue hardship if reasonable use for the property exists under the terms of the zoning provisions. Undue hardship also includes, but is not limited to, inadequate access to direct sunlight for solar energy systems.
(5) Variances shall be granted for earth sheltered construction as defined by statute when in harmony with the zoning provisions. A variance may not be granted for any use that is not permitted or conditional under the zoning provisions for property in the district where the affected land is located. A variance may be granted for the temporary use of a one-family dwelling as a two-family dwelling, and a variance may be granted which imposes conditions to ensure compliance and to protect adjacent properties.
(C) Time of filing. All petitions and appeals shall be filed with the Board within 30 days after written notice of the adverse decision by service of the petition or written notice of appeal upon the City Clerk.
(D) Form and contents. All petitions and appeals shall be filed by the aggrieved person and shall briefly state the facts and circumstances giving rise to the petition or appeal.
(E) Hearing and procedure.
(1) Upon receipt of any petition or appeal, the City Clerk shall forthwith forward a copy thereof to the Secretary of the Board, the Secretary of the Planning Commission, and any administrative officer involved in the enforcement thereof, showing the date of receipt thereof.
(2) Within 30 days after receipt of the petition or notice of appeal by the City Clerk, the Board shall call a hearing thereon and give notice thereof in writing to all petitioners, appellants and other persons as the Board may determine to have an interest or property right in any decision made pursuant thereto, and the administrative officers as it may determine. The notice shall be mailed at least ten days prior to the date set for hearing. Notice shall also be given to the public by publication thereof once in a legal newspaper at least ten days prior to the date set for hearing.
(3) At any such hearing, all persons desiring to be heard shall have the opportunity, it being deemed to have completed its investigation by the date set for hearing.
(2003 Code, § 2.55)