§ 156.022 BOARD OF ADJUSTMENT.
   (A)   Board of Adjustment established. A Board of Adjustment (hereinafter referred to as “the Board”) is hereby established in accordance with M.C.A. §§ 76-2-321 through 76-2-328. The Board shall be comprised of five members appointed by the City Council, each for a term of three years, except that in the initial appointment, one member shall be appointed for a term of one year, two members for a term of two years and two members for a term of three years. Members of the Board may be removed from office by the City Council for cause upon written charges and after public hearing. Vacancies on the Board shall be filled by resolution of the City Council for the unexpired term of the member affected.
   (B)   Proceedings of the Board of Adjustment.
      (1)   The Board shall select one of its members as Chairperson and shall adopt rules necessary to conduct its affairs in keeping with the provisions of this chapter. Meetings shall be held at the call of the Chairperson and at such other times as the Board may determine. The Chairperson or, in his or her absence, the acting Chairperson may administer oaths and compel the attendance of witnesses. Meetings shall be open to the public.
      (2)   The Board shall keep minutes of its proceedings, showing the vote of each member upon 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 a public record and be immediately filed in the office of the Board.
   (C)   Powers of the Board of Adjustment. The Board shall have the following powers:
      (1)   To authorize, upon application in specific cases, such variance from the requirements of this chapter specified below as will not be contrary to the public interest, where owing to special physical configurations of a property, a literal enforcement of the provisions of this chapter will result in unnecessary hardship, and that the spirit of this chapter shall be observed. More specifically, the Board may, after public notice and hearing, conditionally approve, deny or approve any request to modify the following requirements of this chapter:
         (a)   Setback requirements;
         (b)   Yard requirements;
         (c)   Area requirements;
         (d)   Height and width requirements;
         (e)   Parking requirements; and
         (f)   Loading requirements.
      (2)   Neither the non-conforming use of neighboring lands, structures or buildings in the same district, nor the permitted or non-conforming use of lands, structures or buildings in other districts are grounds for the issuance of a variance; and
      (3)   To grant a variance the Board must make a finding that the granting of the variance will be in harmony with the general purpose and intent of this chapter, will not be injurious to the neighborhood, is the minimum variance that will make possible the reasonable use of the land, building or structure, or otherwise be detrimental to the public welfare. In addition, the Board must determine:
         (a)   That special conditions and circumstances exist which are peculiar to the land, structure or building involved and which are not applicable to other lands, structures or buildings in the same district;
         (b)   That literal interpretation of the provisions of this chapter would deprive the applicant of rights commonly enjoyed by other properties in the same district under the terms of this chapter;
         (c)   That the special conditions and circumstances do not result from the action of the applicant; and
         (d)   That granting the requested variance will not confer on the applicant any special privilege that is denied by this chapter to other lands, structures or buildings in the same district.
   (D)   Procedure of Board of Adjustment.
      (1)   Applications for a variance may be submitted to the Board of Adjustment by any person as provided by the rules of the Board, by filing with the Zoning Administrator an application for variance.
      (2)   The application for appeal must specifically set forth the grounds of the variance, as indicated on the application form.
      (3)   The Board shall fix a reasonable time for the hearing of appeal, shall give notice of the hearing at least seven days prior to the holding of a public hearing and shall notify by mail the property owner requesting the variance.
      (4)   At the hearing, any party may appear in person, or by agent or attorney.
(Prior Code, § 17.12.030) (Ord. 390, passed - -1993)