(A) Appeal to City Council.
(1) The City Council shall hear and decide appeals where it is alleged there is error in any order, requirement, decision or determination made by an administrative official in the enforcement of this chapter.
(2) In exercising this power, the City Council may, in conformity with the provisions of this chapter, reverse or affirm, wholly or in part, or modify the order, decision or determination appealed and may make such order, decision or determination as deemed necessary and, to that end, shall have powers of the administrative official whose decision is appealed.
(B) Variances or appeals may not allow uses not permitted.
(1) Under no circumstances may the Board of Adjustment grant a variance, nor the City Council grant an appeal, that would allow a use not permissible under the terms of this chapter in the district involved, or any use expressly or by implication prohibited by the terms of this chapter in the district.
(2) The City Council may, at its discretion, modify or waive the requirements of § 156.209 of this chapter.
(C) Stay of proceedings. An appeal stays all proceedings in furtherance of the action appealed, unless the administrative official from whom the appeal is taken, certifies to the Board of Adjustment after the notice of appeal is filed, that by reason of facts stated in the certificate, a stay would, in his or her opinion, cause imminent peril to life or property. In such case, proceedings shall not be stayed other than by a restraining order which may be ordered by the Board or by a court of record on application, on notice to the officer from whom the appeal is taken and on due cause shown.
(D) Appeals from decisions of the Board of Adjustment or City Council.
(1) Any person or persons, jointly or severally, aggrieved by any decision of the Board of Adjustment or City Council, or any taxpayer, may present to a court of record a petition, duly verified, setting forth that such decision is illegal, in whole or in part, specifying the grounds of the illegality. Such petition shall be presented to the court within 30 days after the filing of the decision of the Board of Adjustment or City Council.
(2) Upon presentation of such petition, the court may allow a writ of certiorari directed to the Board or Council to review such decision of the Board or Council and shall prescribe therein the time within which a return thereto must be made and served upon the relator’s attorney, which may not be less than ten days and may be extended by the court. The allowance of the writ shall not stay proceedings upon the decision appealed from, but the court may, on application, on notice to the Board and on due cause shown, grant a restraining order.
(3) The Board or Council need not return the original papers acted upon by it, but may return certified or sworn copies thereof or of such portions thereof as may be called for by such writ. The return shall concisely set forth such other facts as may be pertinent and material to show the grounds of the decision appealed from and shall be verified.
(4) If, upon hearing, it appears to the court that testimony is necessary for the proper disposition of the matter, it may take evidence or appoint a referee to take such evidence as it may direct and report the same to the court with his or her findings of fact and conclusions of law, which constitutes a part of the proceedings upon which the determination of the court will be made. The court may reverse or affirm, wholly or partly, or may modify the decision brought up for review.
(5) Costs shall not be allowed against the Board or Council unless it appears to the court that it acted with gross negligence, or in bad faith, or with malice in making the decision appealed from.
(Prior Code, § 17.12.040) (Ord. 390, passed - -1993)