(A) A Board of Adjustment, hereinafter referred to as the Board, is hereby established. The City Planning Commission shall act as the Board. The members of the Board shall serve without compensation, except that they shall be paid for necessary expenses in the conduct of the business of the Board.
(B) All reports and recommendations to the Board of Adjustment from the city staff shall be entered in and made part of the permanent written record of the Board’s meeting.
(C) (1) In considering all requests for a variance or appeal, and in taking subsequent action, the Board of Adjustment shall make a finding of fact that the proposed action will not:
(a) Impair an adequate supply of light and air to adjacent property;
(b) Unreasonably increase the congestion in the public street;
(c) Increase the damage of fire or endanger the public safety; or
(d) Unreasonably diminish or impair established property values within the neighborhood, or in any way be contrary to the intent of this chapter.
(2) No variance from the terms of the Zoning Code shall be authorized unless all of the following facts and conditions are considered.
(a) Exceptional circumstances. That there are exceptional or extraordinary circumstances or conditions applying to the property in question or to the intended use of property, that do not apply generally to other properties or classes of uses in the same zoning district.
(b) Natural causes. That the alleged difficulty or hardship has not resulted from the actions of the applicant.
(c) Preservation of property rights. That the variance is necessary for the preservation and enjoyment by the owner of the property in question of similar and substantial property rights possessed by the owners of other properties in the same zoning, district and in the same vicinity.
(d) Absence of detriment. That the authorization of the variance will not be of substantial detriment to adjacent property and will be in keeping with the spirit and intent of the Zoning Code and the public interest.
(e) General nature. That the condition, situation or intended use of the subject property, is not so general or recurrent in nature as to make it reasonably practicable to formulate a general regulation to cover those cases.
(D) (1) The Board of Adjustment shall, after receiving the reports and recommendations of the city staff, make a finding of fact and decide upon requests for a variance by approving or denying the same, in part or in whole, where it is alleged by the applicant that a non-economic hardship in the reasonable use of a specific parcel of property exists.
(2) A hardship may exist whereby some reason of narrowness, shallowness or shape of a specific parcel of property or a lot existing and of record upon the effective date of this chapter or that by reason of exceptional topographic or water conditions of a specific parcel of land or lot, the strict application of the terms of this chapter would result in exceptional difficulties when utilizing the parcel or lot in a manner customary and legally permissible within the district in which the lot or parcel is located.
(3) Should the Board find that the conditions outlined here to fore apply to the proposed lot or parcel, the Board may grant a variance from the strict application of this chapter so as to relieve the difficulties or hardships to the degree considered reasonable, provided the relief may be granted without impairing the intent of this chapter.
(E) Appeals to the Board shall be filed with the Zoning Official, who shall thereupon notify the Chairperson of the Board of Adjustment. However, the appeal shall be filed no later than 60 days after the applicant has received a written notice from the Zoning Official or the appeal shall be considered void.
(F) Procedures:
(1) Requests for variance or appeal shall be filed with the Zoning Official. The application shall be accompanied by a fee as outlined in § 152.44 below. This fee shall not be refunded. The application shall also be accompanied by 10 copies of detailed written and graphic materials necessary for the explanation of the request;
(2) Upon receiving the application, the Zoning Official shall refer the application, along with all related information, to the Board of Adjustment;
(3) The Board shall consider the variance or appeal at its next regular meeting;
(4) The request may be referred to the city staff for a report and recommendation to be presented to the Board. The recommendation of the city staff is to be entered in and made part of the permanent written record of the Board meeting;
(5) The Board shall hold a public hearing at the next meeting following the regular meeting at which the request was first considered and upon receipt of the city staff’s report and recommendation shall make a finding of fact and decide to recommend approval or denial of the request. The Board shall reach a decision within 60 days after the first regular meeting at which the variance or appeal request was considered;
(6) The Board shall hear the persons as wish to be heard, either in person or by agent or attorney. Notice of any hearing shall be mailed not less than 10 days before request, to all owners of property according to the Murray County Assessment records within 350 feet of the property to which the variance relates;
(7) Failure of a property owner to receive the notice shall not invalidate any proceedings as set forth within this chapter;
(8) A variance of this chapter or grant of an appeal shall be by majority vote of the Board of Adjustment; and
(9) The Zoning Official shall notify the originator of the variance request or appeal of the Board of Adjustment’s decision in writing.
(G) Whenever within 1 year after granting a variance or appeal the work as permitted by the variance or appeal shall not have commenced, then the variance or appeal shall become null and void.
(H) The City Council may require a performance bond where appropriate:
(1) Except in the case on non-income producing residential property, upon approval of a variance or appeal the city shall be provided with a surety bond, cash escrow, certificate of deposit, securities or cash deposit prior to the issuing of building permits or initiation of work on the proposed improvements or development. The security shall guarantee conformance and compliance with the conditions of the variance of appeal and the ordinances of the city;
(2) The security shall be in the amount of the Zoning Official’s estimated costs of labor and materials for the proposed improvements of development;
(3) The city shall hold the security until completion of the proposed improvements or development and certificate of occupancy indicating compliance with the variance or appeal and ordinances of the city has been issued by the Zoning Official; and
(4) Failure to comply with the conditions of the variance or appeal and/or ordinances of the city shall result in forfeiture of the security.
(I) (1) The Board of Adjustment shall always act with due consideration to: promoting the public health safety, convenience and welfare, assure that the proposal is consistent with the intent and purpose of this chapter, ensure a density of land use no higher than otherwise required in this chapter for the zoning district the premises lie within, assure that it will not impede the orderly development and improvement of surrounding property for uses predominant in the area and assure that the location and character of the proposed development is consistent with the desirable pattern of development for the locality in general and the zoning district in particular.
(a) Variances shall only be permitted:
1. When they are in harmony with the general purposes and intent of the ordinance and;
2. When the variances are consistent with the comprehensive plan.
(b) Variances may be granted when the applicant for the variance establishes that there are practical difficulties in complying with the zoning ordinance.
(2) In addition, the following interpretation of practical difficulties shall be used in determination of appeals and adjustment. Practical difficulties, as used in connection with the granting of a variance, means that:
(a) The property owner proposes to use the property in a reasonable manner not permitted by the zoning ordinance;
(b) The plight of the landowner is due to the circumstances unique to the property not created by the landowner; and
(c) The variance, if granted, will not alter the essential character of the locality.
(3) Economic considerations alone shall not constitute practical difficulties.
(4) Practical difficulties include, but are not limited to inadequate access to direct sunlight for solar energy.
(5) Interim uses shall be granted for earth-sheltered construction as defined when in harmony with the ordinance. The Board of Adjustment may not permit as an interim use any use that is not permitted under the chapter for property in the zone where the affected person’s land is located.
(6) The Board may permit as an interim use the temporary (not to exceed 6 months, except with granting of extension) use of a 1-family dwelling as a 2-family dwelling. The Board may impose conditions in the granting of the interim use to ensure compliance and to protect adjacent properties.
(7) The Board may impose conditions in the granting of variances. A condition must be directly related to and must bear a reasonable proportionality to the impact created by the variance.
(J) (1) The decision of the Board of Adjustment shall not be final. Any person having an interest affected by this chapter or any decision made relating to it shall have the right to appeal to the Slayton City Council within 90 days of when the decision of the Board of Adjustment is filed with the Zoning Official.
(2) The decision of the City Council shall not be final. Any person having an interest affected by this chapter or any decision relating to it shall have the right of appeal to the District Court on questions of law and fact within 90 days of the date of the Council action.
(Prior Code, § 18.118) (Am. Ord. 340, passed 8-19-2019)