(a) Appeal from Decision of Zoning Official or Board. An appeal taken from any order, requirement, decision or determination made by the Zoning Official charged with the enforcement of the Zoning Ordinance, shall be filed with the Board of Zoning Appeals within twenty days of the issuance of the order.
(1) The appeal shall specify the grounds thereof, and shall be filed within such time and in such form as may be prescribed by the Board by general rule and regulation.
(2) The Zoning Official from whom the appeal is taken shall, upon request of the Board of Zoning Appeals, transmit to it, all documents, plans and papers constituting the record of the action from which an appeal was taken. (Passed 12-17-79.)
(b) Hearing of Appeal.
(1) The Board of Zoning Appeals shall fix a reasonable time for the hearing of an appeal. Public notice of the hearing shall be given by publication, at least fifteen days prior to the date set for the hearing, of a Class I legal notice of the date, time and place of the hearing, in a newspaper of general circulation in the Municipality. Such notice shall state the location of the premises in question, both by street address and lot and block number, plus the general nature of the relief sought. Due notice containing all of the aforesaid information shall also be served upon the parties set forth below:
A. Notice to appellant. Notice sent by certified mail to the appellant.
B. Notice to legal officials. Notice to Council, the Planning Commission, the Zoning Officer and the City Clerk.
C. Notice to interested parties. Notice to any interested party who shall have registered his name and address for this purpose with the Board.
D. Notice to owner and neighborhood. Notice shall be mailed, when the Board so orders to the owner, if his residence is known, and to the occupant of every lot on the same street within 300 feet of the lot or building in question and of every lot not on the same street within 100 feet of the lot or building; however, failure to give such notice as specified in this subsection shall not invalidate any action by the Board. (Passed 10-10-17.)
(2) The Board of Zoning Appeals may require the party taking the Appeal to assure the cost of public notice and due notice to interested parties.
(3) At the hearing, any party may appear in person, by agent or by an attorney at law admitted to practice in this State. The Board shall decide each appeal within forty-five days after the last hearing before the Board, and shall give notice of its decisions to all parties in interest. The Board's decision shall immediately be filed in its office and be a public record.
(c) Information Required on Appeals to the Board. All appeals from a decision of the Zoning Official and applications to the Board shall be in writing on forms prescribed by the Board. Every appeal or application shall include the following:
(1) The name and address of the applicant, or appellant.
(2) The name and address of the owner of the zone lot to be affected by such proposed change or appeal.
(3) A brief description and location of the zone lot to be affected by such proposed change or appeal.
(4) A statement of the present zoning classification of the zone lot in question, the improvements thereon and the present use thereof.
(5) A statement of the section of the Zoning Ordinance under which the appeal is made and reasons wily it should be granted, or a statement of the Zoning Ordinance governing the situation in which the alleged erroneous ruling is being appealed, and the reasons for this appeal.
(6) A reasonable accurate description of the present improvements and the additions or changes intended to be made under this application, indicating the size of such improvements, their material and general construction thereon. In addition, there shall be attached a plot plan of the real property to be affected, indicating the location and size of the lot and size of improvements thereon and proposed to be erected thereon.
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(d) Staying of Work on Premises When Appeal Taken; Exception. When an appeal has been taken and filed with the Board of Zoning Appeals, all proceedings and work on the premises in question shall be stayed unless the Zoning Official from whom the appeal is taken shall certify to the Board of Zoning Appeals that by reason of facts stated in the certificate, a stay would cause imminent peril to life or property. If such certificate be filed, proceedings or work on the premises shall not be stayed, except by a restraining order which may be granted by the Circuit Court of Mercer County upon application therefor, on notice to the Zoning Official from whom the appeal is taken and the owner of the premises affected and on due cause shown.
(e) Petition for Writ of Certiorari from Decision or Order.
(1) Every decision or order of the Board of Zoning Appeals shall be subject to review by certiorari.
(2) Any person or persons jointly or severally aggrieved by any decision or order of the Board of Zoning Appeals may present to the Circuit Court of Mercer County, a petition duly verified, setting forth that such decision or order is illegal in whole or in part, and specifying the grounds of the alloyed illegality. The petition must be presented to the Court within thirty days after the date of the decision or the order of the Board of Zoning Appeals complained of.
(f) Notice of Adverse Parties. Upon filing a petition for a writ of certiorari with the Clerk of the Circuit Court of Mercer County, the petitioner shall cause a notice to be issued and served by the Sheriff of Mercer County upon the adverse party or parties if any, as shown by the record of the appeal in the office of the Board of Zoning Appeals, and upon the Chairman or Secretary of the Board of Zoning Appeals.
(1) The adverse party or parties shall be a property owner whom the record of the Board of Zoning Appeals shows to have appeared at the hearing before the Board in opposition to the petitioner. If the record shows a written remonstrance or other document opposing the request of petitioner containing the names of more than three property owners, the petitioner shall be required to cause notice to be issued and served upon the three property owners whose names first appear upon the remonstrance or document. Notice to the other parties named in the remonstrance or document shall not be required.
(2) The notice shall state that a petition for a writ of certiorari has been filed in the Circuit Court of Mercer County asking for a review of the decision or order of the Board of Zoning Appeals; shall designate the premises affected, and shall specify the date of the decision or order complained of.
(3) Service of the notice by the Sheriff on the Chairman or Secretary of the Board of Zoning Appeals shall constitute notice to the Board and to the Municipality and to any Official or Board thereof charged with the enforcement of the Zoning Ordinance, and no further summons or notice with reference to the filing of such petition shall be necessary.
(g) Action of Court or Judge on Petition. Upon presentation of a petition for a writ of certiorari, the Circuit Court of the County in which the premises affected are located, or a judge thereof in violation, shall direct the Board of Zoning Appeals to show cause within twenty days from the date of such citation why a writ of certiorari should not be issued. If such Board fails to show to the satisfaction of the court or judge that a writ should not be issued, then the court or judge may allow a writ of certiorari directed to the Board of Zoning Appeals. The writ shall prescribe the time in which a return shall be made to it. This time shall not be less than ten days from the date of issuance of the writ and may be extended by the court or judge thereof.
(h) Stay of Work on Allowance of Writ.
(1) The allowance of the writ of certiorari shall not stay proceedings or work on the premises affected by the decision or order to be brought up for review. The court or judge may, however, upon application and on notice to all parties to the decision or order and on due cause shown, grant such relief as the circumstances of the case may require, including an order staying the proceedings or work until final determination of the case by the court or judge thereof.
(2) Such staying order may be issued by the court or judge without requiring the petitioner to enter a written undertaking with the adverse party or parties affected thereby for the payment of damages by reason of such staying order.
(i) Return to Writ by Board of Zoning Appeals.
(1) The return to the writ of certiorari by the Board of Zoning Appeals must concisely set forth such facts and data as may be pertinent, and present material to show the grounds of the decision or order appealed from. The return must be verified by the Secretary of the Board.
(2) The Board shall not be required to return the original papers acted upon it. It shall be sufficient to return certified copies of all or such portion of the papers as may be called for by the writ.
(j) Action by Circuit Court or Judge Thereof. The court or judge may consider and determine the sufficiency of the allegations of illegality contained in the petition without further pleadings, and may make a determination and render a judgment with reference to the legality of the decision or order of the Board of Zoning Appeals on the facts set out in the petition and return to the writ of certiorari.
(1) If it shall appear to the court or judge that testimony is necessary for the proper disposition of the matter, the court or judge may take evidence to supplement the evidence and facts disclosed by the petition and return to the writ of certiorari, but no such review shall be by trial de novo.
(2) In passing upon the legality of the decision or order of the Board of Zoning Appeals, the court or judge may reverse or affirm, in whole or in part, or may modify such decision or order.
(k) Appea1 From Final Judgment of Circuit Court or Judge Thereof. An appeal may be taken to the Supreme Court of Appeals of this State from the final judgment of the court or judge reversing, affirming or modifying the decision or order of the Board of Zoning Appeals within the same time, in the same manner, and upon the same terms, conditions and limitations as appeals in other civil cases.
(12-17-79)