(A) Generally. The Zoning Board of Adjustment has important duties. Its functions, partly administrative and partly judicial, are defined and limited by state enabling legislation and by provisions of the local zoning ordinance. This quasi-judicial body’s powers include hearing and deciding appeals, map interpretations, and granting variances from the zoning ordinance. Under state statutes, the Zoning Board of Adjustment is not a policymaking body, nor is it intended to be. The Board is the body, which provides flexibility in the administration of the zoning regulation.
(B) State enabling legislation. Under Neb. RS 19-907, the local legislative body creates Zoning Boards of Adjustment by ordinance. Statutory references for municipal zoning boards of adjustment are in Neb. RS 19-907 through 19-912.
(C) Meetings.
(1) Meetings of the Board shall be held at such times as the governing body may designate or at the call of the chairperson.
(2) All meetings of the Board shall be open to the public and adhere to the provisions of the state public meetings law.
(3) The Board shall keep minutes of its proceedings, showing the vote of each member upon each question, or if absent or failing to vote, indicating such fact, and shall keep records of its examinations and other official actions, all of which shall be immediately filed in the office of the Board and shall be a public record.
(4) The Board must hold a public hearing before deciding upon applications for variances.
(5) The concurring vote of four members of the Board shall be necessary to reverse any order, requirement, decision, or determination of any municipal official, or to decide in favor of the applicant to effect any variance from the zoning ordinance.
(D) Duties and powers. The Zoning Board of Adjustment has the following powers as authorized by state legislation and local ordinance:
(1) To hear and decide appeals where it is alleged there is error in any order, requirement, and decision or determination made by a municipal official based on the zoning ordinance;
(2) To hear and decide, in accordance with the provisions of the zoning ordinance, request for interpretation of any map;
(3) To hear and decide applications for variance from the zoning ordinance; and
(4) Summon witnesses, administer oaths, and compel the giving of testimony at public hearings.
(E) Criteria for granting variances.
(1) The criteria and conditions that must exist for granting a variance is identified by state statute and in this chapter. The variance is intended as a device for adjustment where the ordinance creates unnecessary hardship in unusual cases, to give affected property owners rights as nearly equal as possible to those of others in the same district.
(2) A heavy caseload on variances may indicate that the ordinance is, or one of its specific regulations, is not appropriate, the Board is malfunctioning, or both. The need for variances should be minor, and variances should be granted sparingly.
(3) Under no circumstances can the Board grant a variance to permit a use not generally or by special permit allowed in the zoning district.
(4) A variance is granted for the property and not for the owner of the property. The variance is thus in effect perpetually and remains with the property and whatever structure may be constructed in the future.
(5) The following are general guidelines, which can be used by the Board in deciding upon applications for variances. These general guidelines are to be used in conjunction with the criteria and conditions specified in the zoning ordinance.
(a) A variance is not the appropriate remedy for a general condition. If this were the case, a change in the zoning regulation would be the appropriate action.
(b) Self-inflicted hardships are not grounds for a variance. If the request for the variance is based upon some action of the applicant, such as the selling of a portion of a lot which does not comply to the existing district regulations as opposed to a case where the area or width of a lot was reduced because land was taken for street widening.
(c) Personal hardship is not grounds for a variance. The hardship must relate to the physical character of the property.
(d) Economic hardship in itself is not grounds for a variance. It may be considered as an element, but there must be other compelling considerations. In general, the law guarantees that police power measures will not prevent a property owner from obtaining some reasonable return on his or her land, however that may be defined. One of the most common statements in variance law is that purely financial hardship, such as, restriction to a less profitable use, is not sufficient to justify a variance. The granting of such variance must be based upon a clearly demonstrable hardship approaching confiscation, as distinguished from a special privilege or convenience sought by the applicant.
(Ord. 667, passed 12-3-2014)