(a) Administrative Regulations.
(1) Board Established. There is hereby established by Kent City Charter a Board of Zoning Appeals which has the power and duties prescribed by law and by this Code.
(2) Composition and Appointment. The Board of Zoning Appeals is constituted in the following manner:
A. Composition. The Board of Zoning Appeals consists of five (5) members appointed by City Council. In the event of the death, resignation, or removal of a member, Council must fill the vacancy for the unexpired portion of the term of that member.
B. Appointment. All appointments are for a (3) year term. No member is allowed to serve more than three (3) consecutive terms or twelve (12) consecutive years, whichever occurs first. Once the term limit is met, the member may not reapply to the Board of Zoning Appeals for one (1) full term. The members of the Board must be residents of the City of Kent and will serve without compensation unless compensation is approved by City Council.
(3) Organization. The Board of Zoning Appeals must elect a chairperson, vice chairperson, and secretary. City Council prescribes by-laws and rules to follow and where not otherwise dictated, the BZA must act in accordance with Robert's Rules of Order for Small Groups, most current edition.
(4) Quorum. Three (3) members of the Board of Zoning Appeals constitute a quorum and a concurring vote of three (3) members of the Board of Zoning Appeals is necessary to enact an order or resolution. Whenever only three (3) voting members are present for a specific case, the Chair must notify the applicant prior to any dispositive vote that the applicant has the option of continuing the vote to another hearing date.
(5) Meetings. Whenever there are matters to come before the Board of Zoning Appeals, the Board will meet on the third (3rd) Monday of each month and at other such times as may be determined. Whenever the third (3rd) Monday of the month falls on a legal holiday, that meeting will be scheduled for the fourth (4th) Monday of that month. All meetings of the Board must be open to the public.
(6) Witnesses. The Chairperson of the Board of Zoning Appeals may direct the Law Director or his/her designee to administer oaths, compel by issuance of a subpoena the attendance of witnesses in all matters coming within the purview of the Board, and take testimony of any and all persons appearing before it.
(7) Powers and Duties. The Board of Zoning Appeals has the power under the authority of this Code to determine appeals, variances, and nonconforming uses.
(8) Planning Commission Review. The Board of Zoning Appeals may request in writing an advisory opinion from the Planning Commission on any question. The Planning Commission must submit a written report to the Board of Zoning Appeals of such advisory opinion within sixty (60) days of its receipt of such request.
(9) Decisions. The Board of Zoning Appeals must decide all appeals upon the conclusion of receiving evidence and must rule on all requests for variances or nonconforming uses within seventy-five (75) days after the date of the initial hearing, except that such time for any decision may be extended by mutual consent, or in the event that inaccurate information has been submitted by the applicant or their designee. Each decision must be by resolution and signed by the Chairperson (or acting chair).
(b) Application Procedures.
(1) All applications for appeals, variances, nonconforming uses, or interpretations must be filed on forms prescribed by the Board of Zoning Appeals and the Community Development Department.
(2) All such applications must be submitted, completed in full, and accompanied by the appropriate fees as specified in Section 1212.01
of the Kent Codified Ordinances, as amended.
(3) If an application is submitted which is incomplete or which is not accompanied by supporting documents or data as required on the application, it may be returned to the applicant for re-application. It is the applicant's responsibility to obtain and submit accurate information.
(4) Upon acceptance of each application, the Community Development Department must establish the time and date of the public hearing to be held to consider the application or request by placing the application on the agenda of the next regularly scheduled Board meeting.
(c) Required Information.
(1) Appeals. The following information is required as part of the completed application for an appeal:
A. A form or cover letter completed by applicant which specifies the decision, the date of the decision, a specific reference to the action or refusal involved, and the grounds for the appeal. The applicant should specifically state one or more reasons with supporting documentation that establishes his/her position in calling for the adverse action to be set aside, modified, or overturned.
B. Such appeal must be filed with the Community Development Department within thirty (30) days of the receipt of the alleged adverse decision, action, or refusal. The date of receipt is established by the date which is marked on the Certified Mailing's return receipt.
(2) Variances. The following information is required as part of the completed application for a variance:
A. A form and any required supporting documentation requested by the Community Development Department, completed by the applicant or his/her authorized representative which specifies the variance being requested, the specific section(s) on which the variance is being requested, the details of the variance, and the grounds on which it is claimed that the variance should be granted. The supporting documentation should reference specifically the criteria provided in Section 1111.03
(c)(2) and how the request for variance addresses or satisfies those criteria.
B. A plan, drawn to reasonable scale, showing the entire property under consideration, the location and names of all abutting streets, the location and dimensions of all existing and proposed structures, and the acreage and dimensions of the property under consideration. The applicant or their authorized representative is responsible for the accuracy of the drawing(s) submitted and the information contained on them. Inaccurate information could lead to a delay in the Board's decision on a variance request.
(d) Review by Board of Zoning Appeals. The Board of Zoning Appeals must review each application or request in accordance with the standards established below. Upon acceptance of each application, the Community Development Department must establish the time and date of the public hearing to be held to consider the application or request by placing the application on the agenda of the next regularly scheduled Board meeting, consistent with the deadlines published by the Community Development Department.
(1) Appeals. The Board of Zoning Appeals must hear and determine all appeals from any decision or action of the Zoning Inspector, Planning Commission (except for site plan and subdivision review), Board of Building Appeals, and the Community Development Department in the administration or enforcement of this Code.
A. The Board of Zoning Appeals must first determine if the applicant has standing to file such an appeal. In order to have standing, the applicant must be materially affected by the adverse decision. The Board of Zoning Appeals will determine if an applicant has standing based upon his/her proximity to the property affected by the decision and any other factor the Board of Zoning Appeals deems relevant.
B. The Board of Zoning Appeals must recognize that affirmative decisions of the Community Development Department or Zoning Inspector require clear and convincing evidence (highly probable to be true; a firm belief or conviction).
C. City Staff may defend the decision of the Zoning Inspector, Planning Commission, Architectural Review Board, Board of Building Appeals, or Community Development Department.
D. The Board of Zoning Appeals reviews all appeals as "de novo," meaning that the scope of the appeal is not limited to the evidence originally presented.
E. The Board of Zoning Appeals must grant a presumption of accuracy of the underlying decision, but this presumption may be overcome by testimony.
F. The Board of Zoning Appeals must allow the applicant and the City's representative to present their case including the presentation of any evidence or legal arguments. Evidence includes sworn testimony, authenticated photographs, historical records, records maintained in the ordinary course of business (including leases, contracts, bank deposits, etc.). Affidavits that are self-serving and cannot be independently corroborated or cross-examined are of lesser value.
G. The Board of Zoning Appeals must, after the presentation of evidence, deliberate until at least three (3) members vote in favor of granting the appeal, granting the appeal with conditions, or affirming the underlying decision.
H. In order to vote in favor of any motion for or against granting an appeal, the member of the Board of Zoning Appeals must determine that the preponderance of the evidence (i.e., more probable than not probable) supports that vote.
I. After prolonged deliberation, if the Board of Zoning Appeals cannot pass a resolution with at least three (3) votes granting the appeal or affirming the underlying decision, the Chairperson may elect to declare a stalemate. A stalemate affirms the decision of the Planning Commission, Architectural Review Board, Zoning Inspector, or Community Development Department.
(2) Variances. The Board of Zoning Appeals must hear and determine all requests for variances from the administration or enforcement of this Code.
A. Zoning Classification Variance. The Board of Zoning Appeals does not have the authority to change the zoning classification for any zoning district, but may in such instances as desired, initiate a recommendation to amend this Code in accordance with Chapter 1112.
B. Use Variances. The Board of Zoning Appeals does not have the authority to grant use variances.
C. Location, Code, Size, or Area Variances. The Board of Zoning Appeals has the authority to grant location and ordinance variances in accordance with the following standards:
General Standards.
• When practical difficulties, unnecessary hardship, or results inconsistent with the general purpose of this Code result through the strict and literal interpretation and enforcement of the provisions thereof, the Board has the authority, subject to the provisions of this Section, to grant upon such conditions as it may determine in accordance with this Code.
• Such variances from the provisions of this Code must be in harmony with its general purpose so that the spirit of this Code is observed, public safety, health and welfare secured, and substantial justice done.
• In granting a variance, the Board of Zoning Appeals may attach thereto such conditions relating to the location of the proposed structure or use, or the duration of the variance as it may deem necessary to further the purposes of this Code.
Review Criteria. In carrying into effect its powers to grant or to recommend variances, the Board must be guided by the following criteria:
• Special Conditions and Circumstances Unique to the Land, Structure, or Building. That special conditions and circumstances exist which are peculiar to the land, structure, or building involved and which are not generally applicable to other lands, structures, or buildings in the same district;
• Rights of Similar Properties in the Same Districts. That literal interpretation of the provisions of this Code would deprive the applicant of rights commonly enjoyed by other similar properties in the same district under the terms of this Code;
• Not a Result of Actions of the Applicant. That the special conditions and circumstances do not result from the actions of the applicant;
• Special Privileges Prohibited. That granting the variance requested will not confer on the applicant any special privilege that is denied by this Code to other lands, structures, or buildings in the same district;
• Comparison to Other Lands, Structures, or Buildings Not a Factor. That no nonconforming use of neighboring lands, structures, or buildings in the same district and no permitted or nonconforming use of lands, structures, or buildings in other districts will be considered grounds for the issuance of a variance.
• Strict Compliance is Unnecessarily Burdensome. That strict compliance with area, setbacks, frontage, height, bulk or density would unreasonably prevent the owner from using the property for a permitted purpose and would thereby render the conformity unnecessarily burdensome;
• Substantial Justice. That a variance would do substantial justice to the applicant, as well as to other property owners in the district (the BZA, however, may determine that a reduced relaxation would give substantial relief and be more just);
• Impact. That the proposed variance will not impair an adequate supply of light and air to adjacent property or increase the congestion in public streets; that the variance will not increase the hazard of fire or flood or endanger public safety; that that the variance will not unreasonably diminish or impair established property values within the surrounding area; and that the variance will not be injurious to the neighborhood or otherwise detrimental to the public welfare.
• Minimum Variance Necessary. That the variance is the minimum variance that will make possible the reasonable use of the land, building, or structure.
• No Financial Consideration. That the granting of a variance is not based upon financial concerns.
• Purpose of the Code. That the granting of the variance, will be in harmony with the general purpose of this Code.
(3) Location or Code Variance. In every instance where the Board grants or recommends a location or code variance, there must be a finding by the Board of Zoning Appeals that:
A. The strict application of the provisions of this Code would result in practical difficulties or unnecessary hardship inconsistent with the general purpose of this Code.
B. There are exceptional or extraordinary circumstances or conditions applying to the property involved or to the intended use or development of the property that do not apply generally to other properties or uses in the same zoning district.
C. The granting of such variance must not be of substantial detriment to the public interest or to adjacent property or improvements in such district in which the variance is sought, and must not materially impair the purpose of this Code.
(4) Size and Area Variance. The Board of Zoning Appeals has the authority to grant a size or area variance in accordance with the following standards:
A. Size and area variances should only be granted when a practical difficulty exists.
B. In order to determine whether a practical difficulty exists, the Board of Zoning Appeals must consider the following seven (7) factors:
• Whether the property in question will yield a reasonable return or whether there can be any beneficial use of the property without the variance;
• Whether the variance is substantial;
• Whether the essential character of the neighborhood would be substantially altered or whether adjoining properties would suffer a substantial detriment as a result of the variance;
• Whether the variance will adversely affect the delivery of government services (i.e., water, sewer, garbage);
• Whether the property owner purchased the property with knowledge of the zoning restriction;
• Whether the property owner's predicament can be solved through some method other than a variance; AND
• Whether the spirit and intent behind the zoning requirement would be observed and substantial justice done by granting the variance.
C. In analyzing the criteria for a practical difficulty, the Board of Zoning Appeals must consider that:
• Each factor does not have a specific weight; AND
• There is not specific number of factors that need to be satisfied for the Board of Zoning Appeals to grant a variance.
(Ord. 2021-057. Passed 6-16-21.)