A. Established; Appointment: The city council may act as the board of adjustment or may provide for the appointment of a board of adjustment as established in sections 76-2-321 through 76-2-328, Montana Code Annotated, 1979. (1975 Code § 17.68.090)
B. Rules: The board of adjustment shall adopt rules necessary to the conduct of its affairs in keeping with the provisions of this title.
C. Meetings: Meetings shall be held at the call of the chairman and at such other times as the board may determine. The chairman, or in his absence the acting chairman, may administer oaths and compel the attendance of witnesses. Meetings shall be open to the public.
D. Minutes: The board of adjustment shall keep minutes of its proceedings, showing the vote of each member upon each question, or if absent or failing to vote indicate such fact, and shall keep records of its examinations and other official actions, all of which shall be a public record and be immediately filed in the office of the board. (1975 Code § 17.68.100)
E. Powers, Duties And Procedures: The powers, duties and procedures for the board of adjustment are as follows:
1. Administrative Review: To hear and decide appeals where it is alleged there is an error in any order, requirement, decision or determination made by the administrative official in the enforcement of this title.
2. Variances, Conditions Governing Applications; Proceedings: To authorize, upon appeal in specific cases, such variance from the terms of this title as will not be contrary to the public interest where, owing to special conditions, a literal enforcement of the provisions of this title would result in unnecessary hardship. A variance from the terms of this title shall not be granted by the board of adjustment unless and until:
a. Upon rejection or revocation of a building permit or zoning permit or application, a written application for a variance is submitted demonstrating that:
(1) Special conditions and circumstances exist which are peculiar to the land, structure, or building involved and which are not applicable to other lands, structures or buildings in the same district;
(2) Literal interpretation of the provisions of this title would deprive the applicant of rights commonly enjoyed by other properties in the same district under the terms of this title;
(3) The special conditions and circumstances do not result from the action of the applicant;
(4) Granting the variance requested will not confer on the applicant any special privilege that is denied by this title to other lands, structures, or buildings in the same district;
Neither the nonconforming use of neighboring lands, structures, or building in the same district, nor the permitted or nonconforming use of lands, structures, or buildings in other districts are grounds for the issuance of a variance.
b. Notice Of Hearing: Notice shall be given at least fifteen (15) days in advance of public hearing. The owner of the property for which variance is sought or his agent shall be notified of the hearing by mail. Notice of such hearing shall be conspicuously posted on the property for which variance is sought, at the county courthouse, in the city hall, and in a newspaper of general circulation within the zoning jurisdiction at least fifteen (15) days prior to the public hearing.
c. Hearing: The public hearing shall be held. Any party may appear in person, or by agent or by attorney.
d. Board Findings:
(1) Requirements Met: Before granting a variance the board of adjustment shall make findings that the requirements of subsection E2a of this section have been met by the applicant.
(2) Reasons Justify: The board of adjustment shall further make a finding that the reasons set forth in the application justify the granting of the variance, and that the variance is the minimum variance that will make possible the reasonable use of land, building or structure.
(3) Harmony: The board of adjustment shall further make a finding that the granting of the variance will be in harmony with the general purpose and intent of this title and will not be injurious to the neighborhood, or otherwise detrimental to the public welfare.
e. Additional Conditions And Safeguards: In granting any variance, the board of adjustment may prescribe appropriate 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 under section 13-12-10 of this chapter.
f. Prohibited Uses: Under no circumstances may the board of adjustment grant a variance to allow a use not permissible under the terms of this title in the district involved, or any use expressly or by implication prohibited by the terms of this title in said district.
3. Board Has Powers Of Administrative Official On Appeals: In exercising the above mentioned powers, the board of adjustment may, so long as such action is in conformity with the terms of this title, reverse or affirm, wholly or partly, or may modify the order, requirement, decision, or determination appealed from, and may make such order, requirement, decision, or determination as ought to be made, and to that end shall have the powers of the administrative official from whom the appeal is taken. (1975 Code § 17.68.080)
F. Administrative Responsibilities And Procedures: The board of adjustment established by the city council shall have the following duties in the administration of this title:
1. Review And Approve Conditional Uses: A permit for a conditional use will not be approved by the board of adjustment unless and until:
a. Application; Required Information: An accurate and complete written application for a conditional use is submitted to the board of adjustment through the zoning administrator. All applications for conditional use permits must be accompanied by plans, in duplicate, drawn to scale, showing the actual dimensions and shape of the lot to be built upon; the exact size and location on the lot of building already existing, if any; the location and dimensions of the proposed building or alteration; and information which clearly states how the conditions for the use must be met. The application must include such other information as may lawfully be required by the administrative official, including description of any proposed building and land; the number of families, housekeeping units, or rental units the building is designed to accommodate; conditions existing on the lot; and such other matters as may be necessary to determine conformance with, and provide for the enforcement of this title. One copy of the plans must be returned to the applicant by the administrative official, after he has marked it as either approved or disapproved and signed it. The original plans, similarly marked, shall be retained by the administrative official. (1975 Code § 17.68.080)
b. Notice Of Hearing: Notice shall be given at least seven (7) days in advance of public hearing before the board of adjustment. The owner of the property for which a conditional use is sought or his agent shall be notified of the hearing by mail. Notice of such hearing shall be conspicuously posted on the property for which the conditional use is sought at the county courthouse, at the city hall, and in a newspaper of general circulation within the zoning jurisdiction at least seven (7) days prior to the public hearing. (Ord. 618, 8-4-1986)
c. Hearing: The public hearing shall be held. Any party may appear in person, or by agent or attorney. (1975 Code § 17.68.080)
d. Written Findings: The board of adjustment shall make a written finding that it is to grant the conditional use, and that the granting of the conditional use will not adversely affect the character of the zoning district. (1975 Code § 17.68.080; amd. 2008 Code)
e. Findings Certifying Compliance: Before any conditional use is approved, the board shall make written findings certifying compliance with the specific conditions governing the use.
2. Amendment Of Title Or Map: Review and recommend proposals for the amendment of this title and the official zoning map under the provisions of section 13-12-8 of this chapter. (1975 Code § 17.68.080)
G. Hearing, Appeals And Notice:
1. Right Of Appeal: Appeals to the board of adjustment concerning interpretation or administration of this title may be taken by any person aggrieved or by any officer or bureau of the governing body of the city affected by any decision of the administrative official.
2. Deadline For Filing: Such appeals shall be taken within a reasonable time, not to exceed sixty (60) days or such lesser period as may be provided by the rules of the board, by filing with the administrative official and with the board of adjustment a notice of appeal specifying the grounds thereof.
3. Transmittal Of Records: The administrative official shall forthwith transmit to the board all papers constituting the record upon which the action appealed from was taken.
4. Notice Of Hearing: The board of adjustment shall fix a reasonable time for the hearing of appeal, give public notice as well as due notice to the parties in interest, and decide the same within a reasonable time. At the hearing, any party may appear in person or by agent or attorney. (1975 Code § 17.68.110)
H. Stay Of Proceedings: An appeal stays all proceedings in furtherance of the action appealed from, unless the administrative official, after the notice of appeal is filed with him, determines that, by reason of facts stated in the certificate, a stay would, in his opinion, cause imminent peril to life and property. In such case, proceedings shall not be stayed other than by a restraining order which may be granted by the board of adjustment or by a court of record on application, on notice to the administrative official from whom the appeal is taken and on due cause shown. (1975 Code § 17.68.120; amd. 2008 Code)
I. Appeal From Board Decision:
1. Right Of Appeal: Any person or persons, jointly or separately, aggrieved by any decision of the board of adjustment, or any taxpayer, or any officer, department, board, or bureau of the municipality, may present to a court of record a petition, duly verified, setting forth that such decision is illegal, in whole or in part, specifying the grounds of the illegality.
2. Deadline For Filing: Such petition shall be presented to the court within thirty (30) days after the filing of the decision in the office of the board.
3. Writ Of Certiorari: Upon the presentation of such petition, the court may allow a writ of certiorari directed to the board of adjustment to review such decision of the board of adjustment and shall prescribe therein the time within which a return thereto must be made and served upon the relator's attorney, which may not be less than ten (10) days and may be extended by the court. The allowance of the writ shall not stay proceedings upon the decision appealed from, but the court may, on application, on notice to the board and on due cause shown, grant a restraining order.
4. Return Of Papers: The board of adjustment need not return the original papers acted upon by it, but may return certified or sworn copies thereof or of such portions thereof as may be called for by such writ. The return shall concisely set forth such other facts as may be pertinent and material to show the grounds of the decision appealed from and shall be verified.
5. Court Hearing: If, upon the hearing, it appears to the court that testimony is necessary for the proper disposition of the matter, it may take evidence or appoint a referee to take such evidence as it may direct and report the same to the court with his findings of fact and conclusions of law, which constitutes a part of the proceedings upon which determination of the court will be made. The court may reverse or affirm, wholly or partly, or may modify the decision brought up for review. (1975 Code § 17.68.140)
Notes
| 1 | 1. See also title 2, chapter 1 of this code. |