(A)   A Board of Adjustment is hereby established for the city.

   (B)   The Board of Adjustment shall consist of five members, all of whom must be citizen members and not more than two of whom may be citizen members of the Planning Commission.

   (C)   The Mayor shall be the appointing authority of the Board of Adjustment subject to the approval of the City Council.

   (D)   The term of office for the Board of Adjustment shall be for four years, but the term of office of members first appointed shall be staggered so that a proportionate number serve one, two, three and four years, respectively.

   (E)   Vacancies on the Board of Adjustment shall be filled within 60 calendar days by the appropriate authority. If the appropriate, authority fails to act within that time, the Planning Commission shall fill the vacancy. When a vacancy occurs other than through expiration of the term of office, it shall be filled for the remainder of that term.

   (F)   All members of the Board of Adjustment shall, before entering upon their duties, qualify by taking the oath of office prescribed by § 228 of the Constitution of the commonwealth before any judge, notary public, clerk of a court or justice of the peace within the district or county in which he and/or she resides.

   (G)   Reimbursement for expenses, or compensation, or both, may be authorized for members of the Board of Adjustment.

   (H)   Any member of the Board of Adjustment may be removed by the Mayor or Fiscal Court Judge Executive, subject to the approval by the City Council, for inefficiency, neglect from duty, malfeasance or conflict of interest. The Mayor, exercising the power to remove a member of the Board of Adjustment, shall submit a written statement to the Planning Commission setting forth the reasons, and the statement shall be read at the next meeting of the Board of Adjustment which shall be open to the general public. The member so removed shall have the right of appeal from the removal to the circuit court of the county in which he or she resides.

   (I)   The Board of Adjustment shall elect annually a Chairperson, Vice-Chairperson, Secretary and any other officers it deems necessary, and any officer shall be eligible for re-election at the expiration of his or her term.

   (A)   The Board of Adjustment shall conduct meetings at the call of the chairman who shall give written or oral notice to all members of the Board at least seven days prior to the meeting, which notice shall contain the date, time and place for the meeting, and the subject or subjects which will be discussed.

   (B)   A simple majority of the total membership of the Board of Adjustment as established by regulation or agreement shall constitute a quorum. Any member of the Board of Adjustment who has any direct or indirect financial interest in the outcome of any question before the body shall disclose the nature of the interest and shall disqualify himself or herself from voting on the question.

   (C)   The Board of Adjustment shall adopt bylaws for the transaction of business and shall keep minutes and records of all proceedings including regulations, transactions, findings and determinations and the number of votes for and against each question and if any member is absent or abstains from voting, indicating the fact, all of which shall, immediately after adoption, be filed in the office of the Board of Adjustment. A transcript of the minutes of the Board of Adjustment shall be provided if requested by a party, at the expense of the requesting party, and the transcript shall constitute the record.

   (D)   The Board of Adjustment shall have the right to receive, hold and spend funds which it may legally receive from any and every source in and out of the commonwealth, including the United States Government.

   (E)   The Board of Adjustment shall have the power to issue subpoenas to compel witnesses to attend its meetings and give evidence bearing upon the question before it.

   (F)   The Chairperson of the Board of Adjustment shall have the power to administer an oath to witnesses prior to their testifying before the Board on any issue.

   (A)   Appeals to the Board of Adjustment may be taken by any person or entity claiming to be injuriously affected or aggrieved by an official action or decision of the Zoning Administrator. Such appeal shall be taken within 30 calendar days after the appellant or his or her agent receives notice of the action to be appealed by filing with said Zoning Administrator and with the Board a notice of appeal specifying the grounds thereof, and giving notice of such appeal to any and all parties of record. A fee shall also be given to the City Clerk at this time. Said Zoning Administrator shall forthwith transmit to the Board all papers constituting the record upon which the action appealed from was taken and shall be treated as and be the respondent in such further proceedings. At any hearing by the Board, an interested person may appear and enter his or her appearance and shall be given an opportunity to be heard.

   (B)   The Board of Adjustment shall fix a reasonable time from hearing the appeal and give public notice in accordance with KRS Chapter 424, as well as written notice to the appellant and the Zoning Administrator at least one calendar week prior to the hearing, and shall decide on the appeal within 60 consecutive calendar days. The affected party may appear at the hearing in person or by attorney.

   Any appeals from the Planning Commission or Board of Adjustment action may be taken in the following manner.

   (A)   Any person or entity claiming to be injured or aggrieved by any final action of the Planning Commission or Board of Adjustment may appeal the action to the circuit court of the county in which the land lies. Such appeal shall be taken within 30 consecutive calendar days after the final action of the Planning Commission or Board of Adjustment. Final action shall not include the Planning Commission’s recommendations made to other governmental bodies.

   (B)   All appeals shall be taken in the appropriate circuit court within 30 consecutive calendar days after the action or decision of the Planning Commission or Board of Adjustment, and all decisions, which have not been appealed within 30 consecutive calendar days shall become final. After the appeal is taken, the procedure shall be governed by the rules of civil procedure. When an appeal has been filed, the clerk of the circuit court shall issue a summons to all parties, including the Planning Commission in all cases, and shall cause it to be delivered for service as in any other law action.

   An appeal stays all proceedings in furtherance of the action appeal from, unless the Zoning Administrator whom the appealed is taken, certifies to the Board of Adjustment, after the notice of appeal is filed with him or her, that by reason of facts stated in the certificate, a stay would, in his or her opinion, cause imminent peril to life and property. In such case, proceedings shall not be stayed other than by a court of record on application, or on notice to the Zoning Administrator from whom the appeal is taken and on due cause shown.

   Upon appeals, the Board of Adjustment shall have the following powers:

   (A)   To hear and decide on applications for variances where, by reason of the exceptional narrowness, shallowness or unusual shape of a site on the effective date of this ordinance, or by reason of exceptional topographic conditions, or some other extraordinary situation or condition of that site, the literal enforcement of the requirements (height or width of building or size of yards, but not population density) of the zoning ordinance would deprive the applicant or reasonable capacity to make use of the land;

   (B)   To hear and decide appeals where it is alleged, by the appellant, that there is an error in any order, requirement, decision, grant or refusal made by a Zoning Administrator in the enforcement of this ordinance. Such appeal shall be taken within 30 consecutive calendar days;

   (C)   To hear and decide applications for conditional use permits to allow the proper integration into the community of uses which are specifically named herein which may be suitable only in specific locations in the zone only if certain conditions are met as specified in § 3.15 of this ordinance;

   (D)   To hear and decide, in accordance with the provisions of this ordinance, requests for interpretation of the official zoning map or for decisions upon other special questions upon which said Board is authorized to act upon; and

   (E)   To hear and decide, in accordance with the provisions of this ordinance and the adopted comprehensive plan for the city, requests for the change from one non-conforming use to another.

   (A)   Variances. Before any dimensional variance is granted, the Board of Adjustment must find all of the following, which shall be recorded along with any imposed conditions or restrictions in its minutes and records and issued in written form to the applicant to constitute proof of the dimensional variance. Such variance shall not be granted by the Board of Adjustment unless and until:

      (1)   A written application for a dimensional variance (including the required fee) and a site plan, if applicable, subject to the applicable requirements of § 3.21 of this ordinance, are submitted and the Board must find that the granting of the variance will not adversely affect the public health, safety of 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 shall consider whether:

         (a)   The requested variance arises from special circumstances which do not generally apply to land in the general vicinity, or in the same zone;

         (b)   The strict application of the provisions of the regulation would deprive the applicant of a reasonable use of the land or would create an unnecessary hardship on the applicant; and

         (c)   The circumstances are the result of actions of the applicant taken subsequent to the adoption of the zoning regulation from which relief is sought; and

         (d)   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 form which relief is sought.

      (2)   Notice of public hearing shall be given in accordance with § 15.2 of this ordinance;

      (3)   The public hearing shall be held. Any person may appear in person, or by agent, or by attorney;

      (4)   Prior to granting a dimensional variance:

         (a)   The Board of Adjustment shall further make the following findings when granting a variance;

         (b)   The Board of Adjustment shall further make a finding that reasons set forth in the application justify the granting of variance and that the variance is the minimum variance that will make possible the reasonable use of the land, building or structure; and

         (c)   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 ordinance as well as the adopted comprehensive plan for the city, and will not be injurious to the neighborhood, or otherwise, detrimental to the public welfare.

      (5)   In granting any variance, the Board of Adjustment may prescribe appropriate conditions and safeguards in conformity with this ordinance. 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 ordinance and punishable under §§ 13.9 and 13.15 of this ordinance.

   (B)   Variance cannot contradict zoning regulation. The Board of Adjustment shall not possess the power to grant variance to permit use of any land, building or structure which is not permitted by this ordinance in the zone in question, or to alter density requirements in the zone in question.

   (C)   Variance runs with land. A variance applies to the property for which it is granted and not to the individual who applied for it. A variance also runs with the land and is transferable to any future owner of land, but it cannot be transferred by the applicant to a different site. Approval for a variance shall automatically terminate if a building permit has not been obtained within 60 calendar days after the date of the Board of Adjustment approval in order to implement the variance. The Board may extend the time limit within which to obtain a building permit; however, in no case shall said time be longer than six months.

   (D)   Change from one non-conforming use to another.

      (1)   A non-conforming use shall not be changed to another non-conforming use without the specific approval of the Board of Adjustment, as provided herein.

      (2)   The Board of Adjustment shall have the power to hear and decide on applications to convert or change an existing non-conforming use to another non-conforming use, subject to the following:

         (a)   A written application for a change from one nonconforming use to another (including the required fee) and a development plan or site plan, if applicable, subject to the applicable requirements of §§ 3.20 or 3.21, shall be submitted to the Board;

         (b)   Notice of the public hearing shall be given in accordance with § 15.2 of this ordinance;

         (c)   The public hearing shall be held. Any person may appear in person, by agent or by attorney;

         (d)   Prior to granting a change from one non-conforming use to another, the Board of Adjustment shall find that the new nonconforming use is in the same or more restrictive classification of use as the prior non-conforming use, the applicant shall establish and the Board of Adjustment shall find:

            1.   The new non-conforming use shall generate less vehicular traffic (automobile and truck) than the prior non-conforming use;

            2.   The new non-conforming use is of a nature which will emit less noise and air pollution than the prior non-conforming use; and

            3.   The new non-conforming use will be more in character with the existing neighborhood than the prior non-conforming use, in that it is more in conformance with the adopted comprehensive plan of the city and, also, more in conformance with the uses permitted in the zone in which the use is located, than the prior non-conforming use.

         (e)   Any change of non-conforming use granted by the Board of Adjustment shall conform to the requirements of this ordinance, including, but not limited to: parking requirements; sign regulations and yard requirements; and all other pertinent ordinances of the city;

         (f)   The Board of Adjustment shall not allow the enlargement or extension of a non-conforming use beyond the scope and area of its operation at which time its use became non- conforming;

         (g)   The Board of Adjustment, in granting a change of non-conforming uses, may attach such conditions thereto as it may deem necessary and proper; and the action, limitations and conditions imposed, if any, shall be in writing, directed to the applicant, with a copy to be furnished to the Zoning Administrator;

         (h)   The change of non-conforming use as may be granted by the Board of Adjustment applies to the property for which it is granted and not to the individual who applied and, therefore, cannot be transferred by the applicant to a different property; and

         (i)   In the case where the change of non-conforming use has not occurred within one year after the date of granting thereof, said use shall be governed according to the requirements of § 3.13(B)(3) of this ordinance.

   (A)   Conditional use permits shall not be issued without the specific approval of the Board of Adjustment, as provided herein.

   (B)   The Board of Adjustment shall have the power to hear and decide on applications for conditional use permits, subject to the following:

      (1)   A written application for a conditional use permit (including the required fee) shall be submitted to the Board;

      (2)   Notice of public hearing shall be given in accordance with § 15.2 of this ordinance;

      (3)   The public hearing shall be held. Any person may appear in person, or by agent or by attorney;

      (4)   Prior to granting a conditional use permit, the Board of Adjustment shall find that the application for a conditional use permit meets the requirements of this ordinance, § 3.15; and

      (5)   Approval for a conditional use shall automatically terminate if a building permit has not been obtained within 60 calendar days after the date of the Board of Adjustment approval in order to implement the conditional use. The Board may extend the time limit within which to obtain a building permit; however, in no case shall said time be longer than six months.

   (A)   In exercising the aforementioned powers, the Board of Adjustment may, so long as such action is in conformity with the terms of this ordinance, reverse or affirm wholly or partly, or may modify the order, requirements, decision or determination as made by the Zoning Administrator, from whom the appeal is taken.

   (B)   A simple majority of the total membership of the Board of Adjustment as established by regulation or agreement, shall be necessary to reverse any order, requirement, decision or determination of the Zoning Administrator, or to decide in favor of the applicant on any matter upon which it is required to pass under this ordinance, or to effect any variation in the application of this ordinance.

   (C)   The details of the decision of the Board shall be forwarded to the Zoning Administrator.

   (A)   Upon petition by an applicant, the Zoning Administrator may waive or modify the standards governing the placement of certain appurtenant structures within a residential property.

   (B)   For the purpose of this section, appurtenant structures shall be limited to swimming pools, porches, decks and utility sheds (smaller than 100 square feet).

   (C)   Applicants shall request such consideration in writing, stating the nature of the request and reasons for the need for a modification or waiver.

   (D)   All decisions of the Zoning Administrator shall be rendered, in writing, within ten working days of receipt of a petition, and after consultation with all adjoining property owners. Decisions shall be forwarded to the Planning Commission and the Board of Adjustment.

   (E)   The Zoning Administrator, at his or her discretion, may refer a petition to the Board of Adjustment for action without recommendation.