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(a) The Zoning Board of Appeals shall hear and decide appeals de novo where it is alleged by the appellant that there is an error in any order, requirement, permit, decision or refusal made by the Director of Public Safety, or any other administrative official in carrying out or enforcing any provision of this Zoning Code.
(b) To be considered, the appellant shall, within thirty days after the date of such decision, file in the office of the Director of Public Safety and of the Board a notice of appeal specifying the decision or section of this Zoning Code from which the appeal is sought, the error alleged and all necessary data in accordance with the form provided by the City.
(c) Within its powers, the Board may reverse or affirm, wholly or in part, or modify such order, requirement, permit, decision or determination appealed from and shall make such order, requirement, decision or determination as, in its opinion, ought to have been made under the circumstances and to that end, shall have all the powers of the officer from whose decision the appeal is taken.
(Ord. 72-72. Passed 8-31-72.)
(Ord. 72-72. Passed 8-31-72.)
The Zoning Board of Appeals, in addition to the general duties and powers conferred upon it by law, may, in specific cases and subject to Council approval, interpret and determine the application of the regulations herein established in harmony with their general purpose and intent as follows:
(a) Permit the erection of additional buildings or the enlargement of existing buildings or uses on the same parcel of land, or one contiguous thereto, each in the same single ownership of record at the time of passage of this chapter, for a legal nonconforming business or activity located in a district restricted against such use, where the enlargement or expansion of such business or activity will not be detrimental to or tend to alter the character of the neighborhood or district.
(b) Permit the erection and use of a building or an addition to an existing building of a public service corporation or for public utility purposes, in any permitted district to a greater height or of larger area than the district requirements herein established, and permit the location in any use district of a public utility building, structure or use if the Board finds such use, height, area, building or structure reasonably necessary for the public convenience and service and provided such building, structure or use is designed, erected and landscaped to conform harmoniously with the general architecture and plan of such district.
(c) Permit in residence districts the erection of temporary bulletins, memorial markers or other signs not used for purposes of commercial advertising, in excess of four square feet in surface area, under such temporary permit and conditions as will prevent them from becoming dilapidated or unsightly or a menace to the public health, safety or general welfare.
(d) Permit variations in the provisions in the Zoning Code for the erection and use of buildings on farms for normal farm purposes, requiring however, that such buildings shall conform to all the provisions of this Zoning Code insofar as is practicable.
(e) The Board, upon making various determinations, shall endeavor to protect adjoining property, to assure safety of pedestrians and convenience of traffic movements within the area under consideration, and may require the provision of curbs, guard rails, walls, fences or other landscape or protective features, and their maintenance, to further the purposes of this Zoning Code.
(Ord. 72-72. Passed 8-31-72.)
(a) The Zoning Board of Appeals is authorized to recommend to Council, upon appeal, a variance from the strict application of the provisions of this Zoning Code which would result in practical difficulties to a property owner where:
(1) The literal application of the provisions of this Zoning Code would result in undue hardship. Hardships which are unavoidable if the purpose and intent of this Zoning Code are to be realized, such as a theoretical loss or limiting possibilities of economic advantage, are general hardships, not undue hardships; likewise an undue hardship cannot be based on conditions created by the owner. It must be found that there are peculiar and special hardships applicable to the property involved which are separate and distinct from the general hardship prevailing in the districts;
(2) Where unique or exceptional circumstances or conditions apply only to the property involved or to the intended use of the property and do not apply to other property within the same zone. No variance shall constitute a grant of special privilege to an individual, when the variance would be necessarily denied to others. It must be found that there are unique or exceptional conditions justifying a variance on one lot, such as topographical or geological conditions, or type of adjoining developments and that a variance would be justified on any lot where similar, unique or exceptional circumstances prevail;
(3) Where granting of a variance will not be injurious to the property or improvements in the neighborhood in which the property is located or be materially detrimental to the public welfare. The existence of undue hardship or other exceptional circumstances shall not be ipso facto evidence for granting of a variance, for such hardships shall be balanced against the present conditions and extent to which such a variance would interfere with the proper future development and rights of adjacent property; and
(4) Where the granting of a variance will not be contrary to the purpose, intent and objectives of this Zoning Code and the Master Plan of the City.
(b) In recommending a variance, the Board may recommend and attach thereto such conditions regarding the location, character and other features of the proposed uses as it may deem reasonable in furtherance of the purpose of this Zoning Code. In recommending a variance, the Board shall state the grounds on which it justifies its recommendation.
(c) A variance once approved by Council shall not be withdrawn or changed unless there is a change of circumstances, or if, after the expiration of one year, no construction is done in accordance with the terms and conditions for which such variance was granted, the Building Inspector shall give a notice in writing, and thirty days thereafter, the variance shall be deemed null and void, and all regulations governing the premises in question shall revert to those in effect before the variance was granted.
(Ord. 72-72. Passed 8-31-72.)
(a) If an appeal or an application for other decisions accompanied by all required information, is received prior to ten days before a regularly scheduled meeting of the Zoning Board of Appeals, the Board shall act within sixty days of such meeting and failure to act within such period shall be considered Board approval of the appeal unless an extension of time is granted by Council. Before making any decisions or recommendations on a variance, the Board shall hold a public hearing or hearings, at such times as shall be determined by the Board itself.
(b) Notice of the time, place and date of hearings on appeal or applications to the Board for property located in an R-1 or R-2 Single-Family Residential District shall be given to the abutting residents and those within five building lots on each side of the property, upon both sides of the street, to which the variance or application applies. In the event the proposed location is a corner lot, notification shall be given to all residents within five building lots of the intersection for each street forming the intersection. Such notice shall be in writing and delivered by first class mail or personal service at least fourteen days prior to the date of the hearing at which the appeal or application will be considered by the Board. The addresses of those persons to be notified shall be as they appear on the County Auditor’s current tax list, the Treasurer’s mailing list or such other list or lists that may be specified by the Board. Nothing in this subsection shall prevent or prohibit the Board from advertising the time, date and place of the hearing, including the subject matter thereof, in a newspaper of general circulation in the City, once prior to the hearing in those cases wherein the Board determines to publish such notice.
(Ord. 127-76. Passed 1-25-77.)
(Ord. 127-76. Passed 1-25-77.)
(c) Notices of the time, place and date of hearings for appeals or applications for variances in any district other than an R-1 or R-2 Single-Family Residential District shall be mailed to the appellant and to adjacent property owners as they may appear on the County Auditor’s current tax list or the Treasurer’s mailing list, and be published at least once in a newspaper of general circulation in the City at least ten days prior to the date of the hearing at which the appeal or the application will be considered.
(Ord. 14-98. Passed 4-14-98.)
(d) All hearings conducted by the Board shall be open to the public. Any person may appear and testify at a hearing, either in person or by duly authorized agent or attorney. The Board shall have the power to subpoena and require the attendance of witnesses, to administer oaths, to compel testimony, to produce reports, findings and other evidence pertinent to any issue referred to it for action.
(e) If an appeal has been denied by Council, the Board need not reconsider the same appeal if resubmitted within six months after the date of decision unless the underlying conditions have substantially changed.
(Ord. 127-76. Passed 1-25-77. )
(a) The Zoning Board of Appeals is authorized to engage the services of a secretary, and shall provide a detailed report of all its proceedings, setting forth its reasons for decisions, the vote of each member participating therein and the absence of a member or his failure to vote. Upon issuance by the Board of any ruling, determination, order or recommendation, the Chairman of the Board shall transmit within ten days of the date of such ruling, determination, order or recommendation, a copy of the record thereof to the Clerk of Council, and such record, including conditions prescribed by the Board, shall be filed and posted for two weeks in the offices of the Director of Public Safety.
The report shall be open to public inspection and copies shall be mailed forthwith to each interested party noted therein.
(b) Council shall act upon matters reported or recommended to it as follows:
(1) Whenever the Board of Zoning Appeals of the City, pursuant to Section 1185.05, issues any ruling, determination, order or recommendation to Council requiring action thereon by Council for the approval, confirmance or disapproval of the same, the record thereof shall be reviewed by the Planning and Zoning Committee of Council and report made thereon to the Committee of the Whole.
(2) The Planning and Zoning Committee of Council and the Committee of the Whole shall apply the provisions of Sections 1185.05, Special Approval, and 1185.06, Variances, upon the basis of the record submitted to Council by the Board of Zoning Appeals pursuant to Section 1185.08 and such other evidence which may be submitted for Council’s determination.
(3) If Council finds that the recommendation of the Board of Zoning Appeals is supported by reliable, substantial and probative evidence and conforms to the standards as set forth in Chapter 1185 of the Planning and Zoning Code of these Codified Ordinances, it shall confirm the action of the Board of Zoning Appeals.
(4) If Council finds the recommendation of the Board of Zoning Appeals is not supported by reliable, substantial and probative evidence and does not conform to the standards set forth in Chapter 1185, it shall refuse to confirm the action of the Board of Zoning Appeals and set forth in writing the specific reasons for such refusal to confirm such action.
(5) In the event the Board of Zoning Appeals fails to recommend a variance or takes no action, Council may, upon the basis of the record and the application of the provisions of Section 1185.05, Special Approval, Section 1185.06, Variances, and this Section, reverse the action of the Board and grant the special use or variance requested.
(6) The Council may reverse or affirm, wholly or in part, or modify any recommendation of the Board of Zoning Appeals as, in Council’s opinion, ought to have been made under the circumstances.
(7) Council shall notify in writing each applicant or appellant of its action upon the ruling, determination, order or recommendation of the Board of Zoning Appeals.
(Ord. 55-87. Passed 7-14-87.)
(Ord. 55-87. Passed 7-14-87.)
Council may from time to time establish fees to be charged for the following proceedings:
(a) Administrative review proceedings (the fee shall be returned to the appellant if he prevails).
(b) Applications for special approval proceedings.
(c) Applications for variance proceedings.
(Ord. 72-72. Passed 8-31-72.)