The Board of Adjustment shall have the following powers:
(A) Administrative review.
(1) To hear and decide appeals where it is alleged by the appellants that there is an error in any order, requirement, permit, decision, determination, or refusal made by the Administrative Official or other administrative official in carrying out or enforcement of any provision of this chapter; and for interpretation of the zoning map. The concurring vote of three members of the Board shall be necessary to reverse or modify any order, decision or determination of the Administrative Official. A pass vote which is cast on any matter before the Board of Adjustment shall have no force or effect and shall not count as a vote with the majority of votes cast.
(2) In reviewing an administrative appeal the Board of Adjustment shall consider all technical evaluations, all relevant factors, all standards specified in other sections of this chapter; and:
(a) The danger to life and property due to flooding or erosion damage;
(b) The danger that storage materials may be swept onto other lands to the injury of others;
(c) The danger that storage materials may be swept into the underground stream system and cause pollution or injury to others;
(d) The availability of alternative locations, not subject to flooding or erosion damage;
(e) The relationship of the proposed use to the Comprehensive Plan and floodplain management program for that area;
(f) The safety of to the property in times of flood for ordinance and emergency vehicles;
(g) The cost of providing governmental services during and after flood conditions including maintenance and repair of public utilities and facilities such as sewer, gas, electrical and water systems, and streets and bridges.
(3) Appeals shall not be taken without accompanying engineering studies which adequately address each of the items contained in this chapter.
(4) Variances shall not be issued within any designated floodway or flood hazard area.
(B) Conditional use. The Board shall have the power to hear and decide applications for conditional use permits to allow the proper integration into the community of uses which are specifically named in the zoning regulations which may be suitable only in specific locations in the zone only if certain conditions are met:
(1) The Board may approve, modify, or deny any application for a conditional use permit. If it approves such permit it may attach necessary conditions such as time limitations, requirements that one or more things be done before the request can be initiated, or conditions of a continuing nature. Any such conditions shall be recorded in the Board’s minutes and on the conditional use permit, along with a reference to the specific section in the zoning regulation listing the conditional use under consideration. The Board shall have power to revoke conditional use permits for noncompliance with the condition thereof. Furthermore, the Board shall have a right of action to compel offending structures or uses removed at the cost of the violator and may have judgment in personam for such cost.
(2) Granting of a conditional use permit does not exempt the owner from complying with all of the requirements of building, housing and other regulations.
(3) In any case where a conditional use permit has not been exercised within the time limit set by the Board, or within one year, if no specific time limit has been set, such conditional use permit shall not revert to its original designation unless there has been a public hearing. EXERCISED, as set forth in this section, shall mean that binding contracts for the construction of the main building or other improvement have been let; or in the absence of contracts that the main building or other improvement is under construction to a substantial degree, or that prerequisite conditions involving substantial investment under contract, in development, are completed. When construction is not a part of the use, EXERCISED shall mean that the use is in operation in compliance with the conditions as set forth in the permit.
(4) In addition to, or where other standards, criteria and other items for consideration are not cited within the individual zoning district the following shall be considered as standards for review and findings of fact in the record of each public hearing for the granting of a conditional use permit:
(a) That the use is essential to or would promote the public health, safety or welfare in one or more zones, but which would impair the integrity and character of the zone in which it is located, or in adjoining zones, unless restrictions on location, size, extent, and character of performance are imposed in addition to those imposed in the zoning regulation;
(b) That the use will not contribute toward an overburdening of public services such as streets, fire protection, ambulance service or utilities;
(c) That the use will not result in increased traffic congestion, additional parking problems, substantial increase in population density, environmental problems, or constitute a nuisance;
(d) That the use is a matter of public need or convenience;
(3) That the use is otherwise in agreement with the chapter.
(5) The concurring vote of three members of the Board of Adjustment shall be necessary to grant a conditional use. A pass vote which is cast on any matter before the Board of Adjustment shall have no force or effect and shall not count as a vote with the majority of votes cast.
(6) A conditional use permit will be required for any facility or operation providing child care, guidance or supervision for which a license is required from the Cabinet for Human Resources. This does not apply to religious organizations providing child care, guidance or supervision while religious services are being conducted or to kindergarten programs operated as a part of a public educational system. When considering child-care centers, nurseries, day-care centers and kindergartens, the Board of Adjustment shall require as a minimum the following standards to be provided for each facility:
(a) The lot shall contain an open space area of not less than 100 square feet per child.
(b) A solid wall or adequate security fence not less than four feet high is maintained along all interior lot lines which separate play areas from adjacent properties.
(c) A letter from the Fire Marshal and the Kentucky Department of Human Resources, Bureau of Social Services or their successor agency certifying to the Board of Adjustment that this use complies with the requirements of that agency. This documentation must be supplied to the Board of Adjustment prior to issuance of a certificate of occupancy. There shall be no construction or alteration of any facility to be used as a child care center, nursery, day care center or kindergarten until approval of such facility has been granted by the Board of Adjustment under this section.
(d) Adequate and safe on-site parking, loading and unloading areas and driveways providing for safe ingress and egress with backing into the street specifically prohibited.
(e) Outdoor play area which lies within or adjoins any Residential District shall be buffered by landscaping or a solid privacy fence. The Board of Adjustment may set hours or otherwise limit outdoor play times for any facility located within a Residential District or adjacent to a residential structure.
(C) Variance.
(1) The Board shall have the power to hear and decide on applications for variances. The Board may impose any reasonable conditions or restrictions on any variance it decides to grant.
(a) Before any variance is granted, the Board must find that the granting of the variance will not adversely affect the public health, safety or welfare, will not alter the essential character of the general vicinity, will not cause a hazard or a nuisance to the public, and will not allow an unreasonable circumvention of the requirements of the zoning regulations. In making these findings, the Board of Adjustment shall consider whether:
1. The requested variance arises from special circumstances which do not generally apply to land in the general vicinity, or in the same zone;
2. The strict application of the provisions of the regulation would deprive the applicant of the reasonable use of the land or would create an unnecessary hardship on the applicant; and
3. The circumstances are the result of actions of the applicant taken subsequent to the adoption of the zoning regulation from which relief is sought.
(b) The Board shall deny any request for a variance arising from circumstances that are the result of willful violations of the zoning regulation by the applicant subsequent to the adoption of the zoning regulation from which relief is sought.
1. All variance applications must be accompanied by a survey prepared by a surveyor licensed in Kentucky locating existing buildings and property boundary lines and new or intended new structures shall be shown by broken lines. Inspection of the location shall be made before the date of the public hearing by the Administrative Official.
2. The concurring vote of three members of the Board shall be required to grant a variance. A pass vote which is cast on any matter before the Board of Adjustment shall have no force or effect and shall not count as a vote with the majority of votes cast.
(c) The Board does not possess the power to permit a use prohibited by this chapter.
(D) Notice requirements.
(1) When a conditional use hearing is scheduled before the Board of Adjustment, or Planning Commission as empowered by this chapter, the following notice shall be given in addition to any other notice required by statute, local regulations or ordinance:
(a) Notice of the hearing as required by KRS Ch. 424.
(b) Notice of the hearing shall be given at least 14 days in advance of the hearing by certified mail to the owner of every parcel of property adjoining the property upon which this use is proposed to be established. It shall be the duty of the person or persons proposing the conditional use to furnish to the Planning Commission the names and addresses of the owners of all adjoining property. Records maintained by the Property Valuation Administrator may be relied upon conclusively to determine the identity and address of the owner. If the property is in condominium or cooperative forms of ownership, the person notified by mail shall be the president or chairman of the owner group which administers property commonly owned by the condominium or cooperative owners. A joint notice may be mailed to two or more co-owners of an adjoining property who are listed in the Property Valuation Administrator’s records as having the same address.
(c) Notice of the hearing shall be posted conspicuously on the property the conditional use is proposed for 14 consecutive days immediately prior to the hearing.
(2) When a variance hearing is scheduled before the Board of Adjustment, or Planning Commission as empowered by this chapter, the following notice shall be given in addition to any other notice required by statute, local regulations or ordinance:
(a) Notice of the hearing as required by KRS Ch. 424.
(b) Notice of the hearing shall be given at least 14 days in advance of the hearing by certified mail to the owner of every parcel of property adjoining the property upon which this use is proposed to be established. It shall be the duty of the person or persons proposing the variance to furnish to the Planning Commission the names and addresses of the owners of all adjoining property. Records maintained by the Property Valuation Administrator may be relied upon conclusively to determine the identity and address of the owner. If the property is in condominium or cooperative forms of ownership, the person notified by mail shall be the president or chairman of the owner group which administers property commonly owned by the condominium or cooperative owners. A joint notice may be mailed to two or more co-owners of an adjoining property who are listed in the Property Valuation Administrator’s records as having the same address.
(3) When an appeal hearing is scheduled before the Board of Adjustment, the following notice shall be given in addition to any other notice required by statute, local regulations or ordinance:
(a) Notice of the hearing as required by KRS Ch. 424.
(b) Notice of the hearing shall be given at least 14 days in advance of the hearing by certified mail to the owner of every parcel of property adjoining the property upon which this use is proposed to be established. It shall be the duty of the person or persons making the appeal to furnish to the Planning Commission the names and addresses of the owners of all adjoining property. Records maintained by the Property Valuation Administrator may be relied upon conclusively to determine the identity and address of the owner. If the property is in condominium or cooperative forms of ownership, the person notified by mail shall be the president or chairman of the owner group which administers property commonly owned by the condominium or cooperative owners. A joint notice may be mailed to two or more co-owners of an adjoining property who are listed in the Property Valuation Administrator’s records as having the same address.
(Ord. 665-98, passed 12-21-1998)