(A) There is hereby established a Board of Adjustment and Appeals; the Board shall have the following powers with respect to this chapter:
(1) The exclusive power 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 this chapter;
(2) The exclusive power to hear requests for variance from the literal provisions of this chapter in instances where their strict enforcement would cause practical difficulties because of circumstances unique to the individual property under consideration, and to grant such variances only when it is demonstrated that such actions will be in keeping with the spirit and intent of this chapter.
(a) The Board of Adjustment and Appeals may not permit as a variance any use that is not permitted under this chapter for property in the zoning district where the land is located. The Board may permit as a variance the temporary use of a one-family dwelling as a two-family dwelling. The Board may impose conditions in the granting of a variance to ensure compliance and to protect adjacent properties.
(b) Hardship means the proposed use of the property and associated structures in question cannot be established under the conditions allowed by this chapter or its amendments and no other reasonable alternate use exists; however, the plight of the landowner must be due to physical conditions unique to the land, structure or building involved and are not applicable to other lands, structures or buildings in the same zoning district. These unique conditions of the site cannot be caused or accepted by the landowner after the effective date of this chapter or its amendments.
(c) Economic considerations alone shall not constitute a hardship.
(3) If an official map has been adopted by the city, to hear and decide on appeal by the owner of land who has been denied a permit to build within the limits of lands delineated on an official map which has been adopted and filed by the city as provided by M.S. § 462.359, as it may be amended from time to time, and to grant a permit for building in such location in any case in which the Board finds, upon the evidence and the arguments presented to it:
(a) The entire property of the appellant of which such area identified for public purposes forms a part that cannot yield a reasonable return to the owner unless such permit is granted;
(b) Balancing the interest of the City Council in preserving the integrity of the official map and of the city comprehensive plan and the interest of the owner of the property in use of his or her property and in the benefits of ownership, the granting of such permit is required by considerations of justice and equity; and
(c) In addition to the notice of hearing required by this chapter, a notice shall be published in the official newspaper once at least ten days before the date of the hearing. If the Board of Adjustment authorizes the issuance of a permit, the Council or other board or commission having jurisdiction shall have six months from the date of the decision of the Board to institute proceedings to acquire such land or interest therein, and if no such proceedings are started within that time, the officer responsible for issuing building permits shall issue the permit if the application otherwise conforms to city ordinances. The Board shall specify the exact location, ground area, height and other details as to the extent and character of the building for which the permit is granted.
(B) The Board of Adjustment and Appeals shall consist of three members and one alternate member. The members of the Board of Adjustment and Appeals shall be appointed by the City Council. Each member, including the alternate member, shall serve for a period of three years and the terms of the three members shall be staggered so that no more than one term expires in any year; provided however, the term of the alternate member may expire during the same year as the term of one regular member.
(1) The term of each member, including the alternate member, shall begin on January 1 and continue through December 31 of the last year of his or her term. Provided, however, any member shall continue to serve after expiration on this term until his or her successor is appointed.
(2) Any member of the Board of Adjustment and Appeals including the alternate member may, for good cause shown for nonperformance of duty or misconduct in office, be removed from office by four-fifths vote of the City Council.
(3) In the event a vacancy occurs as a result of death, incapacity, resignation or removal of any member of the Board of Adjustment and Appeals, in eluding the alternate member, a new member shall be appointed as above provided, but only for the unexpired term of his or her predecessor.
(C) The Board of Adjustment and Appeals shall elect a Chairperson and Vice-Chairperson from its members and shall appoint a Secretary who need not be a member of the Board. Subject to such limitations as may be imposed by the City Council, the Board may adopt rules for the conduct of proceedings before it. Such rules may include provisions for giving of oaths to witnesses and the filing of written briefs by the parties. The Board shall provide for a record of its proceedings which shall include minutes of its meetings, its findings and the action taken on each matter heard by it, including the final order.
(D) The meetings of the Board of Adjustment and Appeals shall be held at the call of its Chairperson and at such other times as the Board in its rules of procedure may specify. The alternate Board member shall, when directed by the Chairperson, attend all meetings of the Board and participate fully in its activities, but shall not vote on any issue unless authorized to do so by the Chairperson; the Chairperson shall authorize the alternate Board member to vote on an issue when a regular member is absent, physically incapacitated, abstains because of a possible conflict of interest or is prohibited by law from voting on that issue. Any question of whether a particular issue involves a conflict of interest sufficient to disqualify a regular Board member from voting thereon, shall be decided by a majority vote of all regular members, except the member who is being challenged.
(E) An appeal from any order, requirement, decision or determination of any administrative official may be taken by any person affected thereby, or by any officer, department, board or bureau of a town, municipality, county or state within 30 days from the date of any such order, requirement, decision or determination by filing with the Zoning Administrator a written notice of appeal.
(1) The notice of appeal shall state:
(a) The particular order, requirement, decision or determination from which the appeal is taken;
(b) The name and address of the appellant;
(c) The grounds for the appeal; and
(d) The relief requested by the appellant.
(2) An appeal stays all proceedings in furtherance of the action appealed from unless the Board of Adjustment and Appeals, to whom the appeal is taken, certifies that by reason of the facts stated in the certificate, a stay would cause imminent peril to life or property.
(3) The Board of Adjustment and Appeals may reverse or affirm, wholly or partly, or may modify the order, requirement, decision or determination appealed from and to that extent shall have all the powers of the officer from whom the appeal was taken, and may direct the issuance of a permit.
(F) An application for a variance shall be filed with the Zoning Administrator; the application shall be accompanied by development plans showing such information as the Zoning Administrator may reasonably require for purposes of this chapter.
(1) The plans shall contain sufficient information for the Board of Adjustment and Appeals to determine whether the proposed variance will meet all applicable development standards if the variance is granted. In all cases, the application shall include:
(a) Name and address of the applicant;
(b) The legal description of the property involved in the request for variance, including the street address, if any, of the property;
(c) The name and address of the owners of the property and any other persons having a legal interest therein;
(d) A site plan drawn to scale showing the property dimensions;
(e) Location of all existing and proposed buildings and their size, including square footage;
(f) Curb cuts, driveways, access roads, parking spaces, off-street loading areas and sidewalks;
(g) The variance requested and the reasons therefor; and
(h) The applicant’s certificate showing the names and the addresses of the record owners of all property located within a minimum of 500 feet of all the contiguous property owned by the variance applicant.
(2) The Board of Adjustment and Appeals may impose conditions in the granting of a variance which the Board may reasonably determine to be necessary to protect adjacent properties, preserve the public health, safety and welfare and comply with the intent and purposes of this chapter.
(3) The Board of Adjustment and Appeals may also impose such conditions and requirements as are necessary to ensure compliance with the terms of the variance.
(G) The Zoning Administrator shall, upon the filing of a notice of appeal or an application for a variance, refer the matter to the Board of Adjustment and Appeals and establish a time for the hearing thereof by said Board no less than 15 days after the filing of the said notice or application and no more than 45 days after the filing thereof. The Zoning Administrator shall notify the appellant or applicant, the Chairperson of the City Planning Commission, the City Building Inspector and in the case of an appeal, the officer from whom the appeal is taken, of the time and place of the hearing. The notice shall be in writing and shall be served on said person personally at least ten days preceding the hearing. In lieu of such personal service, the notice may be served on such person by mail, provided in such case the notice shall be mailed at least 13 days preceding the date of the hearing.
(1) The Zoning Administrator shall also cause the notice of such hearing to be given by publication in the official newspaper of the city in any case where such published notice is required by this chapter.
(2) On request of the Zoning Administrator, or Chairperson of the Planning Commission, the Board shall continue said hearing for a reasonable time, not to exceed 60 days from the date of filing of the notice of appeal or application for a variance, in order to allow the planning agency or its authorized representative to review and report to the Board on the matter.
(3) The Board of Adjustment and Appeals shall decide any appeal or any application for a variance and issue its order with respect thereto within 30 days from the date of the hearing thereon.
(H) The Board of Adjustment and Appeals shall make written findings in any case of an appeal or application for a variance and shall state therein the reasons for its decision; the order issued by the Board of Adjustment and Appeals shall include the legal description of the land involved. Any such order shall be filed with the Zoning Administrator who shall immediately mail a copy thereof, bearing the notation of the filing date, to the appellant or applicant. A certified copy of any order issued by the Board of Adjustment and Appeals acting upon any appeal from an order, requirement, decision or determination of an administrative officer, or upon any application for a variance, shall be filed with the County Recorder or Registrar of Titles for record. Said filing shall be made by the Zoning Administrator as soon as is reasonably possible after the filing of the order with the Zoning Administrator.
(I) All decisions of the Board of Adjustment and Appeals acting upon an appeal from an order, requirement, decision or determination by an administrative official or upon an application for a variance shall be final except that any aggrieved person may have any decision or order of said Board reviewed by an appropriate remedy in District Court as provided by law.
(Ord. passed - -)