A. Board Designation: A committee of three (3) members shall serve as the board of adjustment. Terms of office shall be four (4) years or shall run concurrently with their terms on the planning commission.
B. Applicability: An appeal shall only be applicable to an interpretation of legislative intent of provisions of this title.
C. Proceedings Of The Board Of Adjustment: The board of adjustment shall adopt rules necessary to the conduct of the affairs, and in keeping with the provisions of this title. Meetings shall be held at the call of the chair and at such other times as the board may determine. The chair or acting chair, may administer oaths and compel the attendance of witnesses. All meetings shall be open to the public.
The board of adjustment shall keep minutes of its proceedings showing which members were present and how each member voted on each question. Records shall be kept of its examinations and other official actions, all of which shall be a public record and be filed in the office of the zoning official.
D. Filing An Appeal: Appeals to the board of adjustment concerning interpretation or administration of this title must be filed with the city by the property owner or their agent or by any officer or department of the governing body of the city affected by any decision of the zoning official within forty five (45) days after the making of the order.
Any appeal filed shall be comprehensive and include all matters subject to question. Such appeals must be filed with the board of adjustment by serving the zoning official. The zoning official shall forthwith transmit to the board all papers constituting the record upon which the action appealed from was taken. Subsequent appeals filed by the same individual or group which are intended to cause unjustifiable delay shall not be accepted by the city.
E. Public Hearing: The board of adjustment shall fix a reasonable time for the hearing of appeal, give public notice, thereof, as well as due notice to all property owners within a three hundred fifty foot (350') radius of the affected property, and decide the same within a reasonable time. The person filing the appeal shall be given written notice of the hearing date. At the hearing, any party may appear in person or by agent or attorney.
F. Stay Of Proceedings: An appeal stays all proceedings in furtherance of the action being appealed unless it is certified to the board of adjustment, after the notice of appeal is filed, that by reason of facts stated in the certificate a stay would 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 a court of record on application to the city.
G. Procedure: The procedure for making such an appeal shall be as follows:
1. The property owner or their agent shall file with the city a written notice of appeal stating the specific grounds upon which the appeal is made. The person filing the appeal shall be given written notice of a hearing date and be able to appear and testify at such hearing. Such hearing shall be held within sixty (60) days of the filing of the appeal. (Ord. 230, 5-6-2002)
2. The filing of an appeal shall be accompanied by a fee as provided for in section 3-8-1 of this code. (Ord. 230, 5-6-2002; amd. Ord. 246, 12-3-2007)
3. The ruling appealed from shall stand unless a majority of all members of the board of adjustment and appeals by resolution vote to overturn or modify the prior ruling within sixty (60) days of the hearing.
4. The board of adjustment shall make its decision by resolution within sixty (60) days of the hearing.
H. Decisions Of The Board Of Adjustment:
1. In exercising the above mentioned powers, the board of adjustment may, so long as such action is in conformity with the terms of this title, reverse or affirm, wholly or partly, or may modify the order, requirement, decision, or determination appealed from, and may make such other requirement, decision, or determination, and to that end shall have powers of the zoning official from whom the appeal is taken.
2. The concurring vote of four (4) members of the board shall be necessary to reverse any order, requirement, decision, or determination of the zoning official, or to decide in favor of the applicant on any matter upon which it is required to pass under this title, or to effect any variation in the application of this title.
3. A copy of the decision of the board of adjustment shall be served on the applicant by mail.
I. Appeals From The Board Of Adjustment: Any person or persons or any taxpayer, department, board or bureau of the city aggrieved by any decision of the board of adjustment, shall have the right to seek review within forty five (45) days of the decision with the city council of the city. Any appeal must be filed, in writing, with the city clerk/treasurer within the forty five (45) day period, and such written appeal shall set forth the decision appealed from and the date of that decision. Upon receiving a notice of appeal, the appeal shall be placed on the agenda of the next regular council meeting to occur following at least fifteen (15) days from the receipt of the appeal. At that meeting the council shall review the findings of facts and decision made by the board of adjustment, as well as any documents that were furnished to the board of adjustment on the matter. The council may, but is not required to, allow the aggrieved party and the other persons to speak to the council on the issue involved in the appeal. The city council shall have the authority to uphold the decision of the board of adjustment by passing a resolution adopting the findings of facts and decision of the board of adjustment, or the council, by a vote of a majority of all the members of the council, may reverse or modify the decision of the board of adjustment, in which case the city council shall prepare its own findings of facts and decision on the matter appealed. Any person or persons or taxpayer, department, board or bureau of the city aggrieved by the decision of the city council shall have the right to seek review within thirty (30) days of the decision with a court of record of such decision in the manner provided by the laws of the state of Minnesota, and particularly Minnesota statutes, chapter 462 as such statutes may be, from time to time, amended, supplemented or replaced.
J. Duties Of Zoning Official, Board Of Adjustment, City Council, And Courts On Matters Of Appeal: It is the intent of this title that all questions of interpretation and enforcement shall be first presented to the zoning official and that such questions shall be presented to the board of adjustment only on appeal from the decision of the zoning official, and that recourse from the decisions of the board of adjustment shall be to the courts as provided by law and particularly by chapter 462, Minnesota statutes.
It is further the intent of this title that the duties of the city council, in connection with this title, shall not include hearing and deciding questions of interpretation and enforcement that may arise. The procedure for deciding such questions shall be as stated in this chapter and this title. Under this title, the city council shall have only the duties of: 1) considering and adopting or rejecting proposed amendments or the repeal of this title, as provided by law; 2) establishing a schedule of fees and charges; 3) making final determination on conditional uses; and 4) such other duties, if any, as they be expressly imposed upon by this title. (Ord. 230, 5-6-2002)
K. Compensation: No board of adjustment member shall receive a salary except as fixed by the council. (Ord. 239, 12-5-2005)
Chart 5: Procedural Chart For Zoning, Rezoning, Amendments, Variances, And Conditional Use Permits
Responsible Entity | Proposals Which Conform To The Zoning Ordinance | Rezoning Or Other ZoningAmendment | Variance | Conditional Use Permit |
Zoning official | 1. Review applications for con formance 2. Issue a zoning permit | 1. Review applications 2. Forward applications to planning commission | 1. Review application 2. Forward to board of adjustment | 1. Review application 2. Forward application to planning commission |
Planning commission | 1. Review proposals 2. Hold public hearing following due notice 3. Make recommendation to governing body | 1. Review proposal 2. Hold public hearing following due notice 3. Recommend approval or disapproval to governing body | ||
Board of adjustment | 1. Review action of zoning official, if appealed | 1. Review proposal 2. Hold public hearing after due notice 3. Approve or deny application based on standards of hardship | ||
Governing body | 1. Review action of board of adjustment 2. Uphold, reverse, or modify decision | 1. Review recommendations of planning commission 2. Make decision by 2/3 vote (Minnesota statutes 462.357, subd. 2) | 1. Review action of board of adjustment 2. Uphold, reverse, or modify decision | 1. Review recommendations of planning commission 2. Make decision |
Judicial courts | 1. Final appeal | 1. Final appeal | 1. Final appeal | 1. Final appeal |
(Ord. 230, 5-6-2002)