A Board of Adjustment is hereby established which shall consist of five members. The terms of office of the members of the Board of Adjustment and the manner of their appointment shall be as provided by statute. Two unexcused absences, or three total absences from regularly scheduled meetings in any one calendar year, are grounds for dismissal from the Board of Adjustment.

   Meetings of the Board of Adjustment shall be held at the call of the Chairperson, and at such other times as the Board of Adjustment may determine. Such Chairperson, or in the absence of the Chairperson, the acting Chairperson, may administer oaths and compel the attendance of witnesses. All meetings of the Board of Adjustment shall be open to the public. The Board of Adjustment shall keep minutes of its proceedings, showing the vote of each member on 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 filed in the office of the Board of Adjustment and shall be a public record. The presence of three members shall be necessary to constitute a quorum. A majority of the members of the Board of Adjustment shall be persons representing the public at large and shall not be involved in the business of purchasing or selling real estate.

   Appeals to the Board of Adjustment may be taken by any person aggrieved, or by any officer, department, board, or bureau of the City affected by any decisions of the Administrative Official. Such appeal shall be taken within 10 days by filing with the Administrative Official and with the Board of Adjustment a notice of appeal specifying the grounds thereof. The Administrative Official shall forthwith transmit to the Board of Adjustment all papers constituting the record upon which the action appealed from is taken. An appeal stays all proceedings in furtherance of the action appealed from, unless the Administrative Official certifies to the Board of Adjustment, after notice of appeal shall have been filed with said Administrative Official, that by reason of facts stated in the certificate, a stay would, in the opinion of the Administrative Official, cause imminent peril to life and property. In such case proceedings shall not be stayed otherwise than by a restraining order which may be granted by the Board of Adjustment or by a court of record on application or notice to the Administrative Official, and on due cause shown.

   The Board of Adjustment shall fix a reasonable time for the hearing on the appeal, give public notice thereof 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 by attorney. Before an appeal is filed with the Board of Adjustment, the appellant shall pay the appropriate appeal fee. For any person, firm, or corporation who requests a hearing before the Board of Adjustment, a notification sign shall be erected at all of the street frontages of the property. The notification sign will be provided by the City and the message will be as prescribed by City staff, and intended to inform the public of the proposed item and the time and place of the hearing on said item. Such signs shall be installed by the City no less than 10 days before the hearing before the Board of Adjustment.

   The Board of Adjustment shall have the power to hear and decide appeals where it is alleged there is error in any order, requirement, decision, or determination made by the Administrative Official in the enforcement of this Zoning Code.

   1.   The Board of Adjustment may permit the following conditional uses to the district regulations set forth in this Zoning Code, subject to the requirements of this section:

      A.   Erection and use of a building, or the use of premises, or variance in the height and the regulations in any location for a public service corporation for public utility purposes, or for purposes of public communication, which the Board of Adjustment determines is reasonably necessary for the public convenience or welfare.

      B.   The Board of Adjustment shall hear and decide only such other conditional uses as the Board of Adjustment is specifically authorized to pass on by the terms of this Zoning Code.

   2.   The Board of Adjustment shall decide such questions as are involved in determining whether conditional uses should be granted; and to grant conditional uses with such conditions and safeguards as are appropriate under this Zoning Code, or to deny conditional uses when not in harmony with the purpose and intent of this Zoning Code. A conditional use shall not be granted by the Board of Adjustment unless and until:

      A.   A written application for conditional use is submitted indicating the section of this Zoning Code which the conditional use is sought and stating the grounds on which it is requested.

      B.   Notice of public hearing shall be given at least 10 days in advance of public hearing. The owner of the property for which conditional use is sought, or any agent of said owner, and any other affected property owners shall be notified by mail. Notice of hearing shall also be posted on the property for which conditional use is sought.

      C.   The public hearing shall be held. Any party may appear in person or by agent or attorney.

      D.   The Board of Adjustment shall make a finding that it is empowered under the section of this Zoning Code described in the application to grant the conditional use, and that granting of the conditional use will not adversely affect the public interest.

         (1)   That the establishment, maintenance, or operation of the conditional use will not be detrimental to or endanger the public health, safety, morals, comfort, or general welfare;

         (2)   That the conditional use will not be injurious to the use and enjoyment of other property in the immediate vicinity for the purposes already permitted, and will not substantially diminish and impair property values within the neighborhood;

         (3)   That the establishment of the conditional use will not impede the normal and orderly development and improvement of the surrounding property for uses permitted in the district;

         (4)   That adequate utilities, access roads, drainage, or necessary facilities have been or are being provided;

         (5)   That adequate measures have been or will be taken to provide ingress and egress so designed as to minimize traffic congestion in the public streets;

         (6)   That the conditional use shall, in all other respects, conform to the applicable regulations of the district in which it is located; and

         (7)   That the proposed use shall be consistent with the comprehensive plan.

   3.   In granting any conditional use, the Board of Adjustment may prescribe appropriate conditions and safeguards in conformity with this Zoning Code. Violations of such conditions and safeguards, when made a part of the terms under which the conditional use is granted, shall be deemed a violation of this Zoning Code and punishable under Section 171.05. The Board of Adjustment may prescribe a time limit within which the action for which the conditional use is required shall be begun or completed, or both. Failure to begin or complete, or both, such action within the time limit set shall void the conditional use.

   The Board of Adjustment shall have the power to authorize, upon appeal in specific cases, such variances from the terms of this Zoning Code as will not be contrary to the public interest where, owing to special conditions, a literal enforcement of the provisions of this Zoning Code would result in unnecessary hardship. A variance from the terms of this Zoning Code shall not be granted by the Board of Adjustment unless and until:

   1.   A written application for a variance is submitted demonstrating:

      A.   That 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;

      B.   That literal interpretation of the provisions of this Zoning Code would deprive the applicant of rights commonly enjoyed by other properties in the same district under the terms of this Zoning Code;

      C.   That the special conditions and circumstances do not result from the actions of the applicant;

      D.   That granting the variance requested will not confer on the applicant any special privilege that is denied by this Zoning Code to other lands, structures, or buildings in the same district.

   No nonconforming use of neighboring lands, structures, or buildings in the same district, and no permitted use of land, structures, or buildings in other districts shall be considered grounds for the issuance of a variance.

   2.   Notice of public hearing shall be given in advance of public hearing. The owner of the property for which the variance is sought, or any agent, and any other affected property owners shall be notified by mail.

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

   4.   The Board of Adjustment shall make findings that the requirements of this section have been met by the applicant for a variance.

   5.   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 the land, building, or structure.

   6.   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 Zoning Code, and will not be injurious to the neighborhood, or otherwise detrimental to public welfare.

   In granting any variance, the Board of Adjustment may prescribe appropriate conditions and safeguards in conformity with this Zoning Code. 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 Zoning Code and punishable under Section 171.05. Under no circumstances shall the Board of Adjustment grant a variance to allow a use not permissible under the terms of this Zoning Code in the district involved, or any use expressly or by implication prohibited by the terms of this Zoning Code in said district.

   In exercising the above mentioned powers, the Board of Adjustment may, so long as such action is in conformity with the terms of this Zoning Code, reverse or affirm, wholly or partly, or may modify the order, requirements, 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 powers of the administrative officials from whom the appeal is taken. The concurring vote of three members of the Board of Adjustment shall be necessary to reverse any order, requirement, decision, or determination of the Administrative Official or to decide in favor of the applicant on any matter upon which it is required to pass under this Zoning Code, or to effect any variation in this Zoning Code.

   Any taxpayer, or any officer, department, board, or bureau of the City, or any person or persons jointly or severally aggrieved by any decision of the Board of Adjustment, 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. Such petition shall be presented to the court within 30 days after the filing of the decision in the office of the Board of Adjustment. The court may reverse or affirm, wholly or in part, or may modify the decision brought up for review.

   The Board of Adjustment may, by special permit after public hearing authorize the location of any of the following buildings or uses in any district from which they are prohibited by this Zoning Code. Notice of time and place of hearing shall be given to all affected property owners at least 10 days in advance by placing notices in the United States mail:

   1.   Any public building erected and used by any department of the City, Township, County, State, or federal government.

   2.   Airport or landing field.

   3.   Community building or recreation center.

   4.   Hospitals, non-profit fraternal institutions provided they are used solely for fraternal purposes, and institutions of an educational, religious, or philanthropic character, provided that the building shall be set back from all yard lines a distance of not less than the yard requirements for the district in which located.

   5.   Public cemetery.

   It is the intent of this Zoning Code that all questions of interpretation and enforcement shall be first presented to the Administrative Official, and that such questions shall be presented to the Board of Adjustment only on appeal from the decision of the Administrative Official, and that recourse from the decisions of the Board of Adjustment shall be to the courts as provided by law and particularly by statute. It is further the intent of this Zoning Code that the duties of the Council in connection with this Zoning Code shall not include hearing and deciding questions of interpretation and enforcement that may arise. The procedure for deciding such questions shall be as stated in this section and this Zoning Code. Under the Zoning Code, the Council shall have only the duties of:

   1.   Considering and adopting or rejecting proposed amendments or the repeal of this Zoning Code, as provided by law, and

   2.   Establishing a schedule of fees and charges as stated in Section 170.12.

   The Council shall establish a schedule of fees, charges and expenses, and a collection procedure for Certificates of Zoning Compliance, appeals, and other matters pertaining to this Zoning Code. The schedule of fees listed below shall be posted in the office of the Administrative Official, and may be altered or amended only by the Council. No certificate, special exception or variance shall be issued unless or until such costs, charges, fees, or expenses listed below have been paid in full, nor shall any action be taken on proceedings before the Board of Adjustment unless or until preliminary charges and fees have been paid in full.

   1.   Certificate of Zoning Compliance - New Structure. The building permit fee shall include the Certificate of Zoning Compliance.

   2.   Certificate of Zoning Compliance - Change of Use. Residential Use - $25.00; any use other than residential - $50.00.

   3.   Conditional Use Permits. Board of Adjustment appearance - $150.00.

   4.   Appeal - Board of Adjustment appearance. Residential Use - $50.00; any use other than residential - $100.00.

   5.   Rezoning Fees. Agriculture and residential fees - less than one acre - $100.00; greater than one acre - $100.00, plus $5.00 per additional acre; Commercial and Industrial fees - less than one acre - $125.00; greater than one acre - $125.00, plus $10.00 per additional acre.

   6.   Plan Review Fees. Planned Unit Development Plan fees - $100.00 and an additional $10.00 per acre exceeding five acres. Site Plan fees - Residential fees - less than one acre - $100.00; greater than one acre - $100.00 plus $20.00 per additional acre; Commercial and Industrial fees - less than one acre - $150.00; greater than one acre - $150.00 plus $20.00 per additional acre; additions are $100.00 for less than one acre and $100.00 plus $10.00 per additional acre for tracts that are greater than one acre.