(A) Created. There is hereby created within the town a Board of Adjustment with the powers and duties as hereinafter set forth.
(B) Membership.
(1) The Board of Adjustment shall be composed of five members, members may reside outside of town limits, each appointed by the Mayor and confirmed by the Town Board of Trustees for a term of three years; provided, however, that, for the first appointment under the provisions of this section, one member shall be appointed for a term of one year; two members shall be appointed for a term of two years; and two members shall be appointed for a term of three years. All appointments thereafter shall be for a term of three years.
(2) The Board of Adjustment shall elect a Chairperson from its membership to serve for a term of two years.
(C) Procedure. The Board of Adjustment shall adopt rules in accordance with the provisions of this section. Meeting of the Board of Adjustment shall be held at the call of the Chairperson and at such other times as the Board of Adjustment shall determine. The Chairperson or, in his or her absence, the acting Chairperson may administer oaths and compel the attendance of witnesses. All meetings of the Board shall be open to the public. 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, indicating such fact, and shall keep records of its examinations and other official actions, all of which shall be immediately filled in the office of the Town Clerk and shall be a public record. The concurring vote of three members of the Board of Adjustment shall be necessary to reverse any order, requirement, decision or determination of any administrative official, or to decide in favor of the applicant on any matter upon which it is required to pass under any such ordinance, or to effect any variation in such ordinance.
(D) Appeals. Appeals to the Board of Adjustment may be taken by any person aggrieved or by any officer, department, board or bureau of the town affected by any decision of the Zoning Commission, the Neighborhood Service Division or its designees. Such appeals shall be taken within 30 days from the date of the decision by filing with the officer from whom the appeal is taken and with the Town Clerk a notice of appeal specifying the grounds thereof, and by paying a filing fee of $250 at the office of the Clerk at the time the notice is filed. The officer from whom the appeal is taken shall forthwith transmit to the Board of Adjustment the papers constituting the record upon which the action appealed from was taken. An appeal stays all proceedings in furtherance of the action appealed from, unless the office from whom the appeal is taken certifies to the Board of Adjustment, after the notice of appeal shall have been filed with him or her that be reason of facts stated in the certificate a stay, in his or her opinion, would cause imminent peril to life or property. In such cases, proceedings shall not be stayed otherwise than be a restraining order which may be granted by the Board of Adjustment or by a court of record on application and notice to the officer from whom the appeal is taken and on the cause shown.
(E) Powers. The Board of Adjustment shall have the following powers as provided by law:
(1) If it is alleged there is an error in any order, requirement, decision or determination made by an administrative official in the interpretation or enforcement of this section;
(2) Where, by reason of exceptional narrowness, shallowness or shape of a specific piece of property at the time of the original adoption of the regulations, or by reason of exceptional topographic conditions or other extraordinary or exceptional situation or condition or a specific parcel of property, which condition is not generally prevalent in the area, the strict application of this section would resultin peculiar and exceptional practical difficulties to or exceptional and undue hardship upon the owner of such property, the Board is hereby empowered to authorize upon an appeal relating to such property, a variance from such strict application so as to relieve such difficulties or hardship, but may establish such requirements relative to such property as would carry out the purpose and intent of this section;
(3) Upon appeal, the Board is hereby empowered to permit the following exception:
(a) To permit the extension of a district where the boundary line of a district divides a lot in a single ownership as shown of record;
(b) To interpret the provisions of the ordinance where the street layout actually on the ground varies from the street layout as shown on the map; and
(c) To review the uses listed within § 155.114 of this code of ordinances. These are so classified because they more intensely dominate the area in which they are located than do other uses permitted in the district; however, the nature of such uses may make it desirable that they be permitted to locate therein. The following procedure is established to relate properly the uses permitted in review with the other land uses located in the district. These uses shall be reviewed and authorized or rejected under the following procedure.
1. An application shall be filed with the Board of Adjustment for review. Said application shall show the location and intended use of the site, the names of all the property owners and existing land use within 300 feet, and any other material pertinent to the request which the Board of Adjustment may require.
2. On the following minor exceptions, the application need only contain the names of adjacent property owners, along with any other material pertinent to the request which the Board of Adjustment may require:
a. Location of home beauty parlor;
b. Home day care facility; and
c. Location of mobile home on two and one-half acres or more.
3. The Board of Adjustment shall hold one or more public hearings.
4. The Board of Adjustment, within 45 days of the date of application, shall study the effect of such proposed building or use upon the character of the neighborhood, traffic conditions, public utilities and other matters pertaining to the general welfare, and authorize or deny the issuance of a permit for the use of land or buildings as requested.
(4) No new application for a variance or exception for review by the Board of Adjustment in the form of the previous application which was denied shall be made within 12 months subsequent to the effective date of such denial, unless it can be shown that the conditions under which such denial were made have substantially changed as determined by the Zoning Commission, Neighborhood Services Director or its designee, or that the applicant has adopted the recommendations of the Board of Adjustment.
(F) Appeal to District Court.
(1) (a) An appeal from any action, decision, ruling, judgment or order of the Board of Adjustment may be taken by any person or persons, jointly or severally, or any taxpayer, or any officer, department, board or bureau of the town to the District Court by filling notice of appeal with the Town Clerk and with the Board of Adjustment within ten days from the filling of the decisions of the Board of Adjustment which notice shall specify the ground of such appeal.
(b) Upon filing of the notice of appeal as herein provided, the said Board of Adjustment shall forthwith transmit to the Court Clerk of the county the original or certified copy of all the papers constituting the record in the case, together with the order, decision or ruling of the Board of Adjustment.
(2) (a) An appeal to the District Court from the Board of Adjustment stays all proceedings in furtherance of the action appealed from unless the Chairperson of the Board of Adjustment, from which the appeal is taken, certifies to the Court Clerk, after the notice of appeal shall have been filed, that by reason of facts stated in the certificate a stay, in his or her opinion, would cause imminent peril to life or property.
(b) In such case, proceedings shall not be stayed otherwise than by a restraining order which may be granted by the District Court upon application or notice to the administrative officer in charge of the enforcement of the terms and provisions of the ordinance, and upon notice to the Chairperson of the Board of Adjustment from which the appeal is taken, and upon due cause being shown, the court may reverse or affirm, wholly or partly, or modify the decision brought up for review.
(Ord. 2018-12-01, passed 12-13-2018)