The board of adjustment shall have the following powers and duties:
A. Appeals: To hear and decide appeals where it is alleged that there is error in any order, requirement or decision made by the building official in the enforcement or interpretation of this title. In exercising its official powers, the board shall have the powers of the official from whom the appeal is taken. (Ord. 2408, 10-1-2012)
1. Filing: Appeals may be taken by any person aggrieved or by any officer, department, board or bureau of the city affected by any decision of the administrative officer. Such appeal shall be taken within fifteen (15) calendar days, as provided by the rules of the board, by filing with the building official and the finance officer a notice of appeal, specifying the grounds thereof and deposit of the necessary fees as prescribed by the schedule of fees and charges established by the city council. The finance officer shall forthwith notify the mayor and building official of said appeal. (Ord. 2408, 10-1-2012; amd. Ord. 2512, 4-6-2015)
2. Stays: An appeal stays all proceedings in furtherance of the action appealed from unless the building official from whom the appeal is taken certifies to the board, after the notice of appeal is submitted to him/her, that, by reason of the facts stated in the certificate, a stay would, in his opinion, cause imminent peril of life and property. In such case, proceedings shall not be stayed other than by a restraining order issued by the board.
3. Appearance At Hearing: At the hearing, any person may appear in person, by agent or attorney. (Ord. 2408, 10-1-2012)
4. Vote: The concurring vote of two-thirds (2/3) of the full membership of the board of adjustment shall be necessary to reverse any order, requirement, decision or determination of the building official, and in compliance with South Dakota Codified Laws 11-4-24. (Ord. 2408, 10-1-2012; amd. Ord. 2512, 4-6-2015)
B. Variances: The board of adjustment may authorize such variances from the terms of this title and the city subdivision ordinance 2 as will not be contrary to the public interest where, owing to special conditions, a literal enforcement of the provisions of the ordinances would result in unnecessary hardship. Under no circumstances shall the board grant any variance to allow a use that is not permissible under the terms of this title in the district involved. Variances apply only to yards, signs, height, and coverage, parking or loading requirements but shall not be granted unless and until the following procedures have been complied with:
1. Application: A written application, accompanied by the appropriate fees and the following information:
a. A survey, site plan, or similar documents prepared by a registered land surveyor, which shows, to scale, existing buildings and property lines. The aforementioned materials shall also show the proposed addition, expansion and an indication of the variance request. The survey shall also show all neighboring property improvements.
b. What conditions, if any, exist on this building lot and do not exist on other building lots in the district, causing the need for the variance.
c. Why a strict interpretation of the zoning code would deprive the owner of rights commonly enjoyed by others in the same district.
d. That special conditions and circumstances do not result from actions of the applicant.
e. That granting the variance requested will not confer on the applicant any special privilege that is denied by this title to other land, structures or buildings in the district.
f. The property owner shall cause the building corners of the proposed expansion to be staked on the property.
Nonconforming uses of neighboring lands, structures or buildings in the same district, and permitted use of lands, structures or buildings in any other district, shall not be considered grounds for the issuance of a variance.
2. Notification Of Property Owners: Upon receipt of the above defined application, the public works department shall notify, by direct mail, all property owners within one hundred forty feet (140') of the property, not including alleys and streets rights of way. The address of property owners shall be the last known address as established on county director of equalization records. This notice shall give adjoining property owners a minimum of five (5) days to respond.
a. The above notice shall explain the variance request and alert adjoining property owners of any public hearings on the matter.
b. The notice shall also give adjoining property owners a form to give their opinion of the request, which may be mailed to the building official.
3. Recommendation To Board: A planning commission hearing shall be scheduled after the five (5) day period above has been met. The planning commission will hear the variance request and based upon a vote of the members present will submit a recommendation to the board of adjustment.
4. Public Hearing: Upon receipt of the recommendation of the planning commission and after due notice of a public hearing the board of adjustment will hear and act on the request.
5. Examination: The board of adjustment will examine the reasons set forth in the application to justify the granting of the variance. The variance is the minimum variance that would make possible a reasonable use of land, buildings or structures.
6. Required Findings: The board of adjustment must find that granting of the variance will be in harmony with the general purpose and intent of this title and will not be injurious to the neighborhood or otherwise detrimental to the public welfare. If the board finds the variance does not meet the aforementioned criteria the request shall be denied. (Ord. 2408, 10-1-2012)
7. Consideration Of Submission And Testimony: The planning commission and board of adjustment will only consider the site plan, building plans, and drawings submitted by the applicant, staff, interested parties and testimony presented to said body. (Ord. 2512, 4-6-2015)
8. Appearance At Hearing: At the hearing, any person may appear in person, by agent or attorney.
9. Vote: The concurring vote of two-thirds (2/3) of the members of the board of adjustment shall be necessary to decide in favor of the appellant on any matter upon which it is required to pass under any zoning ordinance, or to effect any variation in such ordinance and in compliance with South Dakota Codified Laws 11-4-24.
10. Reapplication: No applicant requesting a variance, whose application includes the same or substantially the same requirements for the same or substantially the same property as that which has been denied by the board of adjustment, shall be again considered by the planning commission and submitted to the board of adjustment before the expiration date of six (6) months from the date of the final action on the previous application.
11. Building Permit Issuance: A building permit will be issued only after the board of adjustment approves the variance(s) in accordance with state statute and the municipal ordinances.
12. Expiration Of Variance: The variance shall expire two (2) years from the date upon which it becomes effective if the construction is not completed.
C. Conditional Uses: The board of adjustment may authorize by a conditional use permit the uses designated in this title when located in a zoning district allowing such use. The board of adjustment shall impose such conditions as a part of the conditional use permit as are appropriate and necessary to ensure compliance with the comprehensive plan and to protect the public health, safety and general welfare. Unless expressly modified by the board of adjustment, all regulations of the zoning district in which the use is located shall apply.
1. Application For Permit: An application for conditional use permit shall be filed with the public works department.
a. Such application shall state the proposed modifications to existing zoning and shall be accompanied by general plans.
b. The applicant's submitted plans shall show the improvements to be erected upon the tract, the open spaces to be provided, the nature and the location of the proposed use or uses, the relationship of the proposed development to surrounding properties and such other information of such sufficient scope and character as to determine that the intent of this chapter will be met.
c. The planning commission, city council, board of adjustment or any city staff may require any documentation and data that is deemed relevant to the consideration of the conditional use application.
d. Any proposed division of the tract into separately owned and operated units shall be indicated. (Ord. 2408, 10-1-2012)
e. The planning commission and board of adjustment will only consider the site plan, building plans, and drawings submitted by the applicant, staff, interested parties, and testimony presented to said body. (Ord. 2512, 4-6-2015)
2. Notice:
a. The public works department shall send notice thereof to each of the owners of record of all property lying within one hundred forty feet (140') of the tract measured by excluding streets and alleys rights of way for which the conditional use is requested and the applicant's request. The commission shall publish such notice in the municipality's legal newspaper once not less than ten (10) nor more than fifteen (15) days prior to the hearing.
b. Said notice shall contain the date, time and place of hearing and the general substance of the application, including the parcels involved.
c. The hearing shall be conducted and held in accordance with rules adopted by the planning commission.
d. The planning commission shall submit its recommendations to the finance officer within thirty (30) days after the hearing.
3. Planning Commission Minutes: A conditional use permit may be granted by the board of adjustment only after the filing of planning commission minutes, which include findings and conclusions by the planning commission.
4. Time Of Hearing: The board of adjustment shall fix a reasonable time (within 60 days) for the hearing of any appeals or any question which shall require public notice and give public notice thereof, as well as notice to the parties in interest, and decide the same within a reasonable time.
5. Approval Criteria: The board of adjustment shall act upon the application for conditional uses in accordance with the provisions of this title whereby the board of adjustment is authorized by this title to grant conditional uses, with such conditions and safeguards as are appropriate under this title, and to deny conditional uses when not in harmony with the purpose and intent of this title. The board shall find the following to approve the application for a conditional use permit:
a. The use sought to be permitted is in accordance with the comprehensive plan of the city, including all plans of redevelopment and renewal; and
b. Such use will not be grossly detrimental in any way to nearby affected property or to their occupants; and
c. Such use meets the overall density, coverage, yard, height and all other regulations of the district in which such use is sought; and
d. A public hearing has been held thereon by the planning commission.
6. Appearance At Hearing: At the hearing, any person may appear in person, by agent or attorney. (Ord. 2408, 10-1-2012)
7. Vote: The concurring vote of two-thirds (2/3) of the full membership of the board of adjustment elected shall be necessary to decide in favor of the appellant on any matter upon which it is required to pass under any zoning ordinance, or to effect any variation in such ordinance. (Ord. 2408, 10-1-2012; amd. Ord. 2512, 4-6-2015)
8. Permit Required: No land or structures may be used, built, designed, constructed or altered for a conditional use until a conditional use permit is issued.
9. Permit Expiration: A conditional use permit shall expire two (2) years from the date upon which it becomes effective if the construction is not completed.
10. Existing Uses: An existing use eligible for a conditional use permit which was lawfully established on the effective date of this title shall be deemed to have received a conditional use permit as herein required and shall be provided with such permit by the city upon request, and it shall not be a nonconforming use, provided, however, for any enlargement, extension, or relocation of such existing use, an application in accordance with this section shall be required.
11. Conformance To Standards: Any conditional use approved by the board of adjustment shall conform to the standards for such uses set forth by the board. These standards shall be construed to be the minimum requirements for any of the specified conditional uses and the board of adjustment requires additional requirements in their discretion. In all cases, the impact of the proposed use on the adjacent properties will be a significant consideration.
12. Reapplication: No applicant requesting a conditional use permit, whose application includes the same or substantially the same requirements for the same or substantially the same property as that which has been denied by the board of adjustment, shall be again considered by the planning commission and submission to board of adjustment before the expiration date of six (6) months from the date of the final action on the previous application. (Ord. 2408, 10-1-2012)
Notes
| 1 | 1. See also title 3, chapter 3 of this code. |
| 2 | 1. See title 11 of this code. |