(a) Appointment. There is hereby created a Board of Building and Zoning Appeals consisting of five members who shall be residents who hold no other City office or employment, selected by Council, one each year for overlapping terms of five (5) years. It shall have all the power and authority conferred upon boards of zoning appeals by state law and such other duties as may be imposed upon it by state law. Its members shall serve without compensation.
(b) Procedure. The Board shall adopt its own rules, in accordance with this chapter and elect its own officers annually. Meetings of the Board shall be held at the call of the Chairman and at such other times as the Board may determine.
The Chairman, or in his absence, the Acting Chairman, may administer oaths and the Board may compel the attendance of witnesses. All meetings of the Board 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, and shall keep records 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.
(c) Quorum. Three (3) members of the Board shall constitute a quorum. The Board shall act by resolution; and the concurring vote of three (3) members of the Board shall be necessary to reverse any order, requirement, decision or determination of the Building Official or any other duly authorized administrative officer, or to decide in favor of an applicant in any matter on which it is required to pass under this Zoning Ordinance, of every such determination shall be stated. A member of the Board shall not be qualified to vote if he has not attended the public hearing or if he has a direct or indirect interest in the issue appealed.
(d) Assistance; Other Departments. The Board may call upon the City departments for assistance in the performance of its duties, and such departments shall render such assistance to the Board as may reasonably be required.
(e) Applications, Appeals, Hearings and Stay of Proceedings. An application in cases in which the Board has original jurisdiction under the provisions of this chapter, may be taken by any property owner, including a tenant, or by a governmental officer, department, board or bureau. Such application shall be filed with the Zoning Inspector, who shall transmit same to the Board. An appeal to the Board may be taken by any person aggrieved or by any officer, department, board or bureau of the City affected by any decision of the Zoning Inspector. Such appeal shall be taken within thirty (30) days after the decision, by filing with the secretary of the Board a notice of appeal specifying the grounds thereof. The Zoning Inspector shall forthwith transmit to the Board all the papers constituting the record upon which the action appealed from was taken.
If an application or appeal is received at least five (5) days before a regularly scheduled meeting of the Board, it shall act within forty-five (45) days after such meeting. Failure to act within such period shall be considered approval. Before making any decisions on an application or appeal, the Board shall hold a public hearing at such times as shall be determined by the Board itself. Special hearings can be arranged at the call of the Chairman. Notices of the time and place of hearings shall be mailed, by regular first-class mail, not less than three (3) days prior to the date of the hearing, to the appellant and to affected property owners owning property located within 150 feet of the property that is the subject of the application or appeal, as the names of such owners appear in the current records of the County Auditor's office, or such notice may be given by publication for two (2) successive weeks prior thereto in a newspaper of general circulation in the City. A sign shall also be posted on site indicating the proposed zoning variance(s) not less than three (3) days prior to the meeting.
Failure to notify any affected property owner, as hereinbefore defined, shall have no effect upon the validity of the proceedings taken by the Board. Each application or appeal shall be accompanied by a fee as prescribed by Council to cover the cost of publishing and/or posting and mailing the notices of the hearing or hearings. At the hearing, any party may appear in person or be represented by an agent or attorney.
Any person or persons, jointly or severally aggrieved by the decision of the Board, may appeal to the Court of Common Pleas that such decision is unreasonable or unlawful. Such petition shall be presented to the Court within thirty days after the filing of the decision in the office of the Board.
A certified copy of the Board's decision shall be transmitted to the applicant or appellant, and to the Zoning Inspector. Such decision shall be binding upon the Zoning Inspector and observed by him, and he shall incorporate the terms and conditions of the same in the permit to the applicant or appellant, whenever a permit is authorized by the Board.
A decision of the Board shall become effective immediately on the date of the final decision.
An appeal shall stay all proceedings in furtherance of the action appealed from, unless the Zoning Inspector certifies to the Board after notice of appeal is filed with him, that by reason of acts stated in the certificate, a stay would, in his opinion, cause imminent peril to life or property. In such case, proceedings shall not be stayed otherwise than by a restraining order which may be granted by the Board or by the Court of Common Pleas on application, on notice to the Zoning Inspector, or by judicial proceedings and on due cause shown.
(f) Powers. The Board of Building and Zoning Appeals shall have the following powers:
(1) The Board shall have the power to hear and decide, in accordance with the provisions of this chapter, applications, filed as hereinbefore provided, for variances, interpretation of the Zoning Map, interpretation of the Zoning Code or for decision upon other special questions on which the Board is authorized by this Ordinance to pass. In considering an application, the Board shall give due regard to the nature and conditions of all adjacent uses and structures.
(2) The Board shall have the power to permit the following nonconforming uses:
A. Nonconforming Uses; Substitution. The substitution of a nonconforming use existing at the time of enactment of this chapter by another nonconforming use, if no structural alterations except those required by law or resolution are made, provided however, that in an R District, no change shall be authorized by the Board to any use which is not a permitted or conditional use in any R District and in a B District, no change shall be authorized to any use which is not a permitted or conditional use in any B District.
B. Nonconforming Uses; Extension. The extension of a nonconforming building upon the lot occupied by such building or on an adjoining lot, provided that such lot was under the same ownership as the lot in question at the time the use of such building became a nonconforming use, that the value of such extension shall not exceed in all twenty-five percent (25%) of the assessed valuation for tax purposes of the existing building devoted to a nonconforming use, that such extension shall be within a distance of not more than fifty (50) feet of the existing building or premises, that such extension shall in any case by undertaken within five (5) years of the enactment of this chapter; and provided further however, that the Board shall not authorize any extension or enlargement which would result in violation of the provisions of this chapter with respect to any adjoining premises, unless a structure in question is exactly within the same footprint as the previous nonconforming structure.
C. Extension of Use on Border of District. The extension of a use or building into a more restricted district immediately adjacent thereto, but not more than twenty-five (25) feet beyond the dividing line of the two (2) districts, under such conditions as will safeguard development in the more restricted district.
D. Temporary Structures and Uses. The temporary use of a structure or premises in any district for a purpose or use that does not conform to the regulations prescribed elsewhere in this chapter for the district in which it is located, provided that such use is of a temporary nature and does not involve the erection of a substantial structure. A zoning certificate for such use shall be granted in the form of a temporary and revocable permit for not more than a twelve-month period, subject to such conditions as will safeguard the public health, safety, convenience and general welfare.
(g) Interpretation of Zoning Map. Where the street or lot layout actually on the ground or as recorded differs from the street and lot lines as shown on the Zoning Map, the Board after notice to the owners of the property and after public hearing, shall interpret the Map in such a way as to carry out the intent and purpose of this chapter. In case of any question as to the location of any boundary line between zoning districts, a request for interpretation of the Zoning Map may be made to the Board and a determination shall be made by the Board.
(h) Administrative Review; Appeals. The Board shall have the power to hear and decide appeals filed as hereinbefore provided, where it is alleged by the appellant that there is error in any order, requirement, decision, determination, grant or refusal made by the Building Official, Planning Director, or other administrative official in the enforcement and/or interpretation of the provisions of this chapter.
(i) Variances. The Board shall have the power to authorize variance from the terms, provisions or requirements of this chapter upon appeal in a specific case filed as hereinbefore provided:
(1) Where by reason of the size, shape, physical and/or topographic characteristics of the specific parcel of land on the effective date of this chapter, or other extraordinary physical situation or condition of this property or of the land immediately adjoining the property in question, the literal enforcement of the provisions or requirements of this chapter would result in denial of all economic use of the land, or
(2) Where a developer of land files an application with the Planning Commission to subdivide, recombine or divide a parcel of land and one or more of the lots intended to be created thereby do not meet the requirements of the chapter and, by reason of unique physical conditions relative to this specific property, a literal enforcement of the provisions or requirements of this chapter will be physically impossible or economically destructive of all economic use of the land.
(3) Conditions in Granting a Variance.
A. In authorizing a variance, the Board may attach thereto such conditions regarding the location, character and other features of the proposed structure or use as it may deem necessary in the interest of the furtherance of the purposes of the chapter and in the public interest. In authorizing a variance with attached conditions, the Board shall require such evidence, guarantee, bond, surety or other security as it may deem necessary to enforce compliance with the conditions attached to such variance.
B. The variance granted shall be in direct response to the unique problem presented. That is, a problem in application of side yards shall be met with variance of side yard requirements, not by variance in permitted land use.
C. The variance granted shall be the least variance required to respond to the problem.
D. The variance granted shall not be a substantial detriment to adjacent property or impair the purposes of this chapter or the public interest.
(4) Certifications in Variance. Upon granting a variance under one of the two conditions specified in subsection (j) hereof, the Board shall certify to the Zoning Inspector and to the Planning Commission:
A. That the conditions of either subsection (1) A or B hereof permitting the granting of the variance, have been met.
B. The manner in which the conditions specified in subsections (3) B through D hereof have been met, and
C. The special conditions of the variance, if any, as authorized in subsection (3)A hereof.
(j) Board May Reverse Orders. In exercising its power, the Board may in conformity with the provisions of statute and of this chapter, 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, and to that end shall have all the powers of the office from whom the appeal is taken.
(k) Expiration. If a use is established under a use permit or variance and the use is discontinued for any reason for a period of one (1) year, the permit becomes void and the use may not be resumed unless granted by the Board of Building and Zoning Appeals. For area variances tied to specific projects, a variance granted is only valid for one (1) year, which is fulfilled with the commencement of construction within one (1) year of issuance. Should the one-year time limit lapse, applicants must reapply for a hearing before the Board of Building and Zoning Appeals or the Zoning Certificate becomes null and void.
(Ord. 2023-53. Passed 1-23-24.)