11-17-8: VARIANCES; BOARD OF ADJUSTMENT:
   A.   Authority: There is hereby created in and for the City a Board of Adjustment.
   B.   Composition: The board of adjustment shall be composed of five (5) members.
   C.   Appointment Of Initial Members: The initial members appointed to the board of adjustment shall be appointed by the mayor and approved by the board of commissioners.
   D.   Appointment Of New Members; Terms: Members to be appointed to replace members of the board of adjustment whose terms have expired shall be appointed in the manner provided for appointments in section 62 of the city charter and each individual so appointed shall commence his/her term immediately upon his appointment and the term of office of the member whose position he/she takes shall terminate upon the appointment of his/her replacement.
   E.   Vacancies: Vacancies occurring in the membership of the board of adjustment shall be filled for the unexpired term.
   F.   Rules, Regulations: The board of adjustment shall adopt rules for the conduct of its meetings and business.
   G.   Meetings: The board of adjustment shall meet at the call of the chair and at such times as the board may determine. All meetings of the board shall be open to the public.
   H.   Oaths, Witnesses: The chair of the board of adjustment, or in his/her absence the acting chair, may administer oaths and compel the attendance of witnesses.
   I.   Minutes, Records: The board of adjustment shall keep minutes of its proceedings, show the vote of each member upon each question, or if absent or failing to vote, indicate such fact, and shall keep a record of its examinations and other official actions, all of which shall be immediately filed in the office of the board and shall become a public record.
   J.   Application: Consideration of a request by a property owner, owners, or authorized representative for a variance is initiated by submittal of the appropriate completed application form and supporting documentation required for public hearings as listed in subsection 11-17-2B of this chapter, along with any other items of evidence which the applicant wishes to submit. The filing fee for a variance application shall be established by the board of commissioners, no part of which shall be refundable.
   K.   Review: Upon compliance with all application requirements, the requested variance shall be reviewed by the city staff for compliance with the conditions listed herein, and shall be forwarded with findings and recommendations to the board of adjustment. Upon required notice being given, the board of adjustment shall hold a public hearing in accordance with the provisions of section 11-17-2 of this chapter to review the proposed variance, receive comments, testimony, and evidence from interested parties, and receive the recommendation of city staff.
   L.   Powers Generally: The board of adjustment shall have the following powers:
      1.   To hear and decide appeals when it is alleged there is error in any order, requirement, decision or determination made by the code official, or administrative official, in the enforcement of the provisions of this title.
      2.   To hear and decide special exceptions to the terms of the zoning ordinance upon which such board is required to pass.
      3.   To authorize upon appeal in specified cases such variance from the terms of the zoning ordinance, as will not be contrary to the public interest, where, owing to special conditions, a literal enforcement of the provisions of such ordinance will result in unnecessary hardship and so that the spirit of such ordinances shall be observed and substantial justice done.
      4.   To hear and decide oil and/or gas applications or appeals unless prohibited throughout a municipality by municipal ordinance. The board of adjustment shall be required to make the findings prescribed by this code in order to grant a variance as to use with respect to any such application or appeal.
Exceptions and/or variances may be allowed by the board of adjustment only after notice and hearing as provided in this title. The record of the meeting at which the variance or special exception was granted shall show that each element of a variance or special exception was established at the public hearing on the question, otherwise said variance or special exception shall be voidable on appeal to the district court. In exercising the above mentioned powers, the board of adjustment may, in conformity with this chapter, reverse or affirm, wholly or in part, or may modify the order, requirement, decision or determination from which appealed and may make such other order, requirement, decision or determination as ought to be made. (Ord. 5916, 8-9-1999)
The concurring vote of three (3) members of the board shall be necessary to reverse any order, requirement, decision or determination of the code official or administrative official or to decide in favor of the applicant in any matter upon which it is required to pass or to effect any variation in the regulations and restrictions provided for in the zoning ordinance. (Ord. 5966, 2-25-2002)
   M.   Variances: A variance from the terms, standards and criteria that pertain to an allowed use category within a zoning district as authorized by the zoning ordinance may be granted, in whole, in part, or upon reasonable conditions as provided in this title, only upon a finding by the board of adjustment that:
      1.   The application of this title to the particular piece of property would create an unnecessary hardship;
      2.   Such conditions are peculiar to the particular piece of property involved;
      3.   Relief, if granted, would not cause substantial detriment to the public good, or impair the purposes and intent of the ordinance or the comprehensive plan; and
      4.   The variance, if granted, would be the minimum necessary to alleviate the unnecessary hardship.
   N.   Approval: The board of adjustment shall approve or deny the variance. Approval shall be documented by written findings of fact which support the conclusions listed in subsection M of this section, and the board of adjustment may prescribe additional conditions and safeguards in conformity with this title. Violation of such conditions and safeguards, when made a part of the terms under which the variance is granted, shall be deemed a violation of this title and punishable as provided in subsection 11-17-1E of this chapter. (Ord. 5916, 8-9-1999)