A. General. The Board of Adjustment shall 1) hear and decide appeals from decisions of the Department concerning the interpretation of provisions of the Ordinance; 2) hear appeals from decisions of administrative hearing officers; 3) act on applications for temporary use permits, and 4) act on applications for variances (other than those variances determined to be minor).
B. Stay of Proceedings. Upon filing of an appeal by the appellant, all proceedings in the matter shall be stayed, unless the Department Director or designee certifies to the Board, after receipt of such appeal, that a stay would cause imminent peril to life and property and the Board issues on order.
C. Limitations of Power. The Board of Adjustment shall be subject to the following limitations of power:
1. Under no circumstances shall the Board allow a use not permissible under the terms of this Ordinance, whether expressly or by implication, in the zoning district in which the property is located.
2. Every decision of the Board shall be based upon finding of fact, and every finding of fact shall be supported in the record of its proceedings. A mere finding of recitation of the enumerated conditions, unaccompanied by the findings of specific fact, shall not be deemed findings of fact and shall not be deemed in compliance with this Ordinance.
3. The Board shall not hear any matter arising out of an exaction provided by a Zoning.
D. Hearing and Presentation of Evidence.
1. Parties in interest shall have the right to present their case by oral or documentary evidence, to submit rebuttal evidence, and to conduct such cross-examination of witnesses as may be required for a full and true disclosure of the facts, in accordance with the following:
a. The submission of documentary evidence shall not, by reason of its written form, prejudice the interest of any party.
b. The Board shall, as a matter of policy, provide for the exclusion of irrelevant, immaterial, or unduly repetitious evidence, and, in the furtherance of this policy, may limit cross- examination.
c. A petition to the Board signed by persons not parties in interest to an appeal, as defined herein, shall not be considered documentary evidence and shall have no bearing on the Board's decision, nor shall any person presenting such petition be considered the agent of its signers.
2. No order of the Board permitting the erection or alteration of a building shall be valid for a period longer than 18 months, unless a building permit for such erection or alteration is obtained within such period and such erection or alteration is commenced and proceeding toward completion in accordance with the terms specified by the Board.
E. Jurisdiction. The Department Director or designee may request the opinion of the Office of the City Attorney as to the jurisdiction of the Board. The Board shall consider the opinion of the Office of the City Attorney prior to the accepting jurisdiction and hearing the matter.
F. Appeal to Superior Court. Pursuant to A.R.S. § 12-7.6., an affected party may file an appeal to a decision of the Board of Adjustment to the Superior Court.
G. Variance.
1. General. The Board of Adjustment may grant a variance that departs from the terms of these zoning regulations pertaining to 1) height or width of structures, 2) size of yard and open spaces, or 3) other development standards where such departure will not be contrary to the public interest, and where, owing to conditions peculiar to the property because of its size, shape, or topography, and not as a result of the action of the applicant, the literal enforcement of this Ordinance would deprive the owner of the reasonable use of the land and/or building involved.
2. Application. A request for variance shall be made by filing an official application and development plan, together with the applicable fee, with the Department, at least thirty (30) days prior to the Board meeting. The application shall identify the exceptional conditions and the peculiar and practical difficulties being claimed as a basis for the requested variance. The development plan shall contain sufficient information for the Board to consider the request and make a proper decision on the matter. Such additional materials required for submittal are described in greater detail in the Process Guide.
3. Evidence Required. At the public hearing the applicant shall present a statement and adequate documentation to demonstrate the following:
a. Special circumstances or conditions exist on the subject property that does not exist on other property in that zoning district.
b. The literal interpretation of the provisions of this Ordinance would deprive the appellant of rights commonly enjoyed by other properties in the same zoning district.
c. The alleged hardship caused by literal interpretation of the provisions of this Ordinance includes more than personal inconvenience and financial hardship and is not the result of actions by the appellant.
d. Granting the variance will not confer upon the applicant any special privilege that is denied by this Ordinance to other land, parcels, structures, or buildings in the same zoning district.
e. Granting the variance will not interfere with or substantially or permanently injure the appropriate use of adjacent conforming properties in the same zoning district.
4. Board of Adjustment Action.
a. Approval. In the event the Board of Adjustment determines that the applicant demonstrates compliance with conditions set forth above in Subsection G.3, of this Section 21-323 it may approve or conditionally approve the variance. Approval may be granted only upon the affirmative vote of the majority of the Board members present.
b. Findings. In approving or conditionally approving the variance, the Board shall find that
1) The reasons set forth in the appeal justify the granting of the variance, and that the variance is the minimum variance that will make possible the reasonable use of the land, building, or structure; and
2) Granting of the variance will be in harmony with the general purpose and intent of this Ordinance and will not be injurious to the neighborhood or otherwise detrimental to the public welfare.
c. Conditions of Approval. In granting any variance, the Board may impose such conditions and safeguards as it deems appropriate to ensure that the purpose and intent of this Ordinance will be fulfilled and to ensure that the integrity and character of the zoning district is maintained.
d. Considerations. The Board shall not consider the following when considering grounds for granting a variance:
1) Violations related to uses or structures in the same zoning district
2) Permitted uses or structures in other zoning districts
e. Denied Application. In the event the Board of Adjustment denies an application for a variance, no permits shall be issued.
5. Propriety of Variance. Every variance granted shall be personal to the appellant; however, the variance shall be transferable and run with the land after an occupancy permit for any authorized structure or structures has been issued.
6. Time Limits. If a variance is granted, the applicant shall obtain site plan approval, where applicable, or a building permit in cases where no site plan is required within eighteen (18) months of the date of approval of the variance.
7. Guarantees. The Board of Adjustment may require guarantees in such form as it deems suitable to ensure compliance with any conditions of approval
8. Violations. The violation of any condition under which a variance is granted shall cause the variance to cease to exist and any permit(s) therewith shall become null and void.
H. Interpretation.
1. General. The Board shall hear and decide any appeal in which it is alleged there is an error in an order, requirement, or decision made by the Department in the administration or enforcement of the Peoria Zoning Ordinance.
2. Application. Applications for an appeal of an interpretation shall be filed in writing, with the Department, within thirty (30) days after the action appealed from, together with the applicable fee, and shall specify the grounds thereof. An appeal concerning interpretation or administration of this Ordinance may be filed by any office, department, board, or commission of the City or by an aggrieved person(s), which for the purpose at hand shall be deemed to be any persons(s) who demonstrate to the BOA substantial interest in the appeal or who receive a particular and direct impact from the interpretation that is distinguishable from the effects or impacts upon the general public.
3. Board of Adjustment Action. Pursuant to A.R.S § 9-462.06, the Board shall reverse or affirm, wholly or partly, or modify the order, requirement or decision of the Department being appealed, and make such order, requirement, decision, or determination as necessary.
I. Temporary Use Permit.
1. General. The Board shall hear and act upon appeals for temporary use permits for those uses which are specifically authorized in this Ordinance. The applicant or any party in interest aggrieved by the decision of the Department concerning a Temporary Use Permit may file a notice of appeal with the Board of Adjustment.
2. Application. An aggrieved person who shall be construed to be the applicant or any party in interest may file an appeal with the Board for a decision of the Department on a Temporary Use Permit. Applications for the appeal shall be filed in writing, with the Department, on the official form provided by the Department, together with the applicable fee, within seven (7) days after the Department's decision, and shall specify the grounds for the appeal. The Department shall transmit to the Board all papers constituting the record upon which the action appealed from is taken.
3. Board of Adjustment Action.
a. Pursuant to A.R.S. § 9-462.06, the Board shall reverse or affirm, wholly or partly, or modify the order, requirement, or decision of the Department being appealed, and make such order, requirement, decision, or determination as necessary.
b. As part of the terms of any temporary use permit, the Board may stipulate certain restrictions and limitations in accordance with Section 21-322 of this Ordinance.
(Ord. No. 03-06, 3-13-03; Ord. No. 2016-29, 9-20-16; Ord. No. 2017-33, § 35, 6-13-17)