Policies for creation, organization and powers of the Board of Adjustment are established in Ch. 37 of this code of ordinances.
(A) Membership.
(1) The Board of Adjustment shall consist of five members, all citizens of the city, each to be appointed for a term of three years by the Mayor and confirmed by the City Council, overlapping terms shall be established in the same manner as they are established for the Planning Commission. The City Council may remove any Board of Adjustment member for cause, upon filing of written charges and subsequent to a hearing, vacancies shall be filled, by appointment of the Mayor, and confirmation of the City Council, for the unexpired term.
(2) The Board of Adjustment shall elect a chairperson from its membership to serve for a term of one year.
(3) Not less than one, or more than two, members of the Board of Adjustment shall be appointed from the membership of the Planning Commission.
(B) Procedures.
(1) The Board of Adjustment shall adopt rules consistent with the provisions of this chapter.
(a) Meetings of the Board shall be held at the call of the Chairperson and at other times as the Board may determine. The Chairperson, or the acting Chairperson, may administer oaths and compel the attendance of witnesses.
(b) All meetings of the Board shall be open to the public.
(c) The Board of Adjustment shall keep minutes of its proceedings, showing the vote, indicating the fact, and shall keep records of its examinations and other official actions, all of which shall be immediately filed in the office of the City Clerk and shall be a matter of public record.
(d) The minutes of the meeting at which a variance or special exception is reviewed shall show that each required element for necessary for evaluation of the variance or special exception request was considered at the public hearing on the question and entered into the record.
(2) The concurring vote of three members of the Board of Adjustment shall be necessary to reverse any order, requirement, decision or determination of any administrative official, or to decide in favor of the applicant on any matter upon which it is required to pass under any ordinance, or to effect any variation in the ordinance.
(C) Powers and duties. The Board of Adjustment shall have the following powers:
(1) To hear and decide appeals where it is alleged there is an error in any order, requirement, decision or determination made by an administrative official in the interpretation or enforcement of this chapter;
(2) Where, by reason of exceptional narrowness, shallowness or shape of a specific piece of property at the time or the original adoption of the regulations, or by reason of exceptional topographical conditions or other extraordinary or exceptional situation or condition of a specific piece of property, the strict application of this chapter would result in peculiar and exceptional practical difficulties to or exceptional or undue hardship upon the owner of the property, the Board of Adjustment is hereby empowered to authorize, upon an appeal relating to the property, a variance from the strict application so as to relieve the difficulties of hardship, but may establish the requirements relative to the property as would carry out the purpose and intent of this chapter;
(3) Upon appeal, the Board of Adjustment is empowered to permit the following exceptions:
(a) To permit line extension of a zoning district where the boundary line of a district divides a lot in single ownership as shown of record;
(b) To interpret the provisions of this chapter where the street layout actually on the ground varies from the street layout as shown on the zoning map fixing the several district, which map is made a part of this chapter; and
(c) To consider granting relief through a special exception from an encroachment of a structure into a required setback area where the property owner alleges there was an error in the survey, the title information, or a contractor’s error that resulted in the violation of a zoning district setback line by a permanent structure.
(4) Upon application the Board of Adjustment is empowered to grant special exceptions. The special exception is intended to allow the location of certain uses while maintaining adequate protection of the surrounding area. These uses, while not generally conforming with traditional use groupings in specific zoning districts, may, when consideration is given to sitting, physical features, compatibility with surrounding land uses, traffic patterns and aesthetics, be able to locate in an area where they will be compatible with existing or planned uses. Each case shall be reviewed on its own merits by the Board of Adjustment which may authorize it by granting a special exception.
(D) Appeals to the Board of Adjustment.
(1) Appeals to the Board of Adjustment may be taken by any person aggrieved or by any officer, department, board or bureau of the city affected by any decision of the Building Inspector or City Council related to this chapter. The appeal shall be taken within 30 days from the date of the decision by filing with the City Clerk a notice of appeal specifying the grounds thereof, and paying a filing fee of $100 for either a variance, special exception or other type of application, at the office of the City Clerk at the time the notice is filed.
(2) The City Clerk shall transmit to the Chairperson of the Board of Adjustment all the papers constituting the record upon which the action appealed from was taken. An appeal stays all proceedings in furtherance of the action appealed from, unless the City Clerk certifies to the Board of Adjustment, after the notice of appeal has been filed with the Clerk, that by reason of facts stated in the certification, a stay would, in the Clerk’s opinion, cause imminent peril to life or property.
(3) In such cases, proceedings shall not be stayed otherwise than by a restraining order, which may be granted by the Board of Adjustment or by a court of record on application and notice to the City Clerk and on the cause shown.
(4) The Board of Adjustment shall fix a reasonable time for the hearing of the appeal, giving public notice thereof, as well as due notice to the parties in interest, and decide the same within a reasonable time, at the hearing any party may appear in person or by agent or by attorney.
(E) Individual special exceptions authorized. In addition to the uses permitted by right, conditionally or on review in each zoning district, the Board of Adjustment may grant a special exception to authorize the following additional uses after an application has been made and a public hearing held in accordance with the requirements of this chapter.
(1) A mobile home or manufactured house for temporary use on a lot that is already occupied by one principal structure to be permitted only if the applicant submits proof of a medical hardship which necessitates the temporary location, the hardship shall include serious illness or the other medical hardship as the Board may consider and accept. The use of a mobile home or manufactured house for such temporary use shall only be permitted on property within an “A”, “E-1”, “E-2” or “R-F-l” District, according to the Official Zoning Districts Map.
(2) Upon consideration of all pertinent information, a special exception may be granted by the Board of Adjustment to authorize any of the above enumerated uses in individual zoning districts so long as the spirit and intent of the chapter is not jeopardized and all requirements hereof are satisfied.
(3) An application for a special exception shall be filed by the owner of the site or the owner’s agent in accordance with procedures as set forth in this chapter.
(4) All applicable off-street parking, intensity of use, screening, coverage, height, area and setback provisions for the zoning district in which the use is proposed shall be the minimum requirements for the development of any special exception use. However, the Board of Adjustment may impose any additional requirements that it deems necessary in order to protect the public interest, the additional requirements shall be complied with as a condition to the establishment of any use and shall be maintained as a condition to the continuance of the use.
(5) A complete site plan, drawn to an accurate and acceptable scale, shall be filed with each application for a special exception. The site plan shall include at a minimum:
(a) The location and area of the main and accessory buildings on the site and in relationship to each other and to adjacent uses;
(b) The number and arrangement of parking spaces, traffic circulation areas, the adequacy and manner of the lighting thereof, and its effect on surrounding properties;
(c) The relationship between the off-street parking areas and points of ingress and egress, and the traffic circulation both within and without the site;
(d) The provision of adequate off-street loading and service facilities;
(e) The provision for proper facilities for the accumulation and disposal of garbage and trash;
(f) The provision of fences, walls and landscaping and the provision of facilities and manner of maintenance thereof;
(g) The relationship of the number, size and location of signs, all of which shall be within the regulations set north in this chapter; and
(h) Other factors as may be necessary to secure and protect the public health, safety, comfort, convenience and general welfare.
(6) In addition to the above listed factors to be considered, the following specific standards shall be required for the use of a mobile home or manufactured house for a temporary residence:
(a) The special exception for this use may be granted for a specific time period at the Board’s discretion, not to exceed three years. Unless the applicant shall file an application for extension of the special exception at least 60 days prior to the expiration of the special exception, the use shall terminate at the end of the period. In the event an application to continue the special exception use is timely filed, the Board shall determine if the need that led to the granting of the original special exception is still present and if there has been any material change of conditions relevant to the granting of the special exception. In the event an extension is granted, it shall be for a period not to exceed three years.
(b) If the hardship that led to the granting of the special exception ceases to exist prior to the expiration date established by the Board’s order, the mobile home or manufactured house shall be removed within 60 days of the date that the hardship ceases to exist.
(7) Conditions for approval.
(a) The principal for whom the special exception is requested shall be a relative by blood or marriage.
(b) The special exception shall not be granted unless a medical hardship exists caused by physical condition, such as age or infirmity, or by mental condition of the principal, and the extenuating conditions shall not be caused by the applicant. Such medical hardship shall be documented by written medical reports.
(c) Only one mobile home shall be allowed accessory to a permanent single-family detached residential structure.
(d) The location of the mobile home shall conform to all area, setback, height and off-street parking requirements of the district in which it is located, and the mobile home shall be located to the rear of the main residential structure.
(e) The proposed mobile home installation shall meet all city and county Health Department standards and regulations.
(f) Within any “E-1”, “E-2” or “R-F-1” Residential District, written consent from 75% of the owners of property located within 500 feet of the exterior boundaries of the property upon which the use is sought shall be obtained by the applicant before any original or extension application shall be considered.
(g) The Board of Adjustment may impose additional conditions as it considers necessary, to include, but not limited to extraordinary setbacks, landscaping and installation of utilities.
(h) Other factors as may be necessary to secure and protect the public health, safety, comfort, convenience and general welfare.
(F) Additional conditions. The following special conditions shall apply to all special exceptions and variances granted by the Board of Adjustment, unless a more restrictive condition is provided for elsewhere in this chapter.
(1) No use approved under a special exception or variance shall be commenced or maintained upon a lot or parcel except in accordance with the approved site plan.
(2) All grants of a special exception shall expire in the following cases:
(a) If the use is not established within 12 months of the date of approval; or
(b) If the use, once established, is discontinued or abandoned for a period of 90 days or greater.
(3) (a) When the holder of a grant of a special exception determines that an extension of time of modification of the site plan or other requirements is necessary, he or she shall apply for an amendment in the same manner as the original application.
(b) The amendment shall be processed in the same manner as an original application.
(4) In the event the holder of a special exception variance, as provided for herein, fails to comply with all of the terms and conditions of the Board order or this chapter, the holder thereof shall be subject to daily fine in the amount of $100. Upon conviction of the offense in Municipal Court, the use shall be canceled, terminated and revoked.
(G) Decision-making effect.
(1) In exercising the above-mentioned powers, the Board of Adjustment may, in conformance with the provisions of this chapter, reverse or affirm, wholly or partly, or may modify the order, requirement, decision or determination as ought to be made, and to that end shall have all powers of the City Clerk.
(2) In considering all appeals from rulings made under this chapter, the Board of Adjustment shall, as part of its findings on any specific case, determine the effect of the proposed change upon the supply of light and air to adjacent property, upon the congestion in the public streets, upon the public safety from fire and other hazards, upon the established property values within the surrounding area and upon other factors relating to the public health, safety, comfort, morals, and general welfare of the people of the city.
(3) Every ruling made upon any appeal to the Board of Adjustment shall be accompanied by a written finding of fact based upon the testimony received at the Board hearing and shall specify the reason for granting or denying the appeal.
(2002 Code, § 154.110) (Ord. 486, passed 5-12-2003)