Auburn City Zoning Code

BOARD OF

ADJUSTMENT

§ 152.215 ESTABLISHMENT.

A Board of Adjustment is hereby established, which shall consist of five regular members, plus one additional member designated as an alternate who shall attend and serve only when one of the regular members is unable to attend for any reason, each to be appointed by the City Council for a term of three years and removable for cause by the appointing authority upon written charges and after public hearings. Vacancies shall be filled for the unexpired term of any member whose term becomes vacant. One member only of the Board of Adjustment shall be appointed from the membership of the Planning Commission, and the loss of membership on the Planning Commission by the members shall also result in his or her immediate loss of membership on the Board of Adjustment and the appointment of another Planning Commissioner to the Board of Adjustment.

(Prior Code, § 11-901)

§ 152.216 PROCEEDINGS.

(A) The Board of Adjustment shall adopt rules necessary to the conduct of its affairs and in keeping with the provisions of this chapter. Meetings shall be held at the call of the Chairperson and at the other times as the Board may determine. The Chairperson or, in his or her absence, the acting Chairperson, may administer oaths and compel the attendance of witnesses. All meetings shall be open to the public.

(B) 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 the fact and shall keep records of its examination and other official actions, all of which shall be immediately filed in the office of the Board and shall be of public record.

(Prior Code, § 11-902)

§ 152.217 HEARING APPEALS; NOTICE.

(A) Appeals to the Board of Adjustment may be taken by any person aggrieved, or by any officer, department, board of bureau of the city affected by any decision of the administrative official. The appeal shall be taken within a reasonable time, as provided by the rules of the Board, by filing with the officer from whom the appeal is taken and, with the Board of Adjustment, a notice of appeal specifying the grounds thereof. The officer from whom the appeal is taken shall forthwith transmit to the Board all the papers constituting the record upon which the action appealed from was taken.

(B) The Board of Adjustment shall fix a reasonable time for the hearing of the appeal, giving public notice thereof, as well as due notice to the parties in interest and decide the same within a reasonable time. Upon the hearing, any party may appear in person or by attorney.

(Prior Code, § 11-903)

§ 152.218 STAY OF PROCEEDINGS.

An appeal stays all proceedings in the furtherance of the action appealed from, unless the officer 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 by reason of facts stated in the certificate a stay would, in his or her opinion, cause imminent peril to life or property. In the 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 on notice to the officer from whom the appeal is taken and due cause shown.

(Prior Code, § 11-904)

§ 152.219 POWERS.

The Board of Adjustment shall have only the following powers:

(A) Administrative review. To hear and decide appeals where it is alleged there is error in any order, requirements, decision or determination made by any administrative official or agency based on or made in the enforcement of this chapter or any regulation relating to the location or soundness of structures;

(B) Interpretation: special questions. To hear and decide, in accordance with the provisions of this chapter, requests for interpretation of any map, requirement or provision of this chapter; and

(1) Where by reason of exceptional narrowness, shallowness or shape of a specific piece of property at the time of the enactment of this chapter, or by reason of exceptional topographical conditions or other extraordinary and exceptional situations or conditions of the piece of property, the strict practical difficulties to, or exceptional and undue hardships upon the owner of the property, to authorize, upon an appeal relating to the property, a variance from the strict application so as to relieve the difficulties or hardship, if the relief may be granted without substantial detriment to the public good and without substantially impairing the intent and purpose of this chapter.

(2) No variance shall be authorized by the Board unless it finds that:

(a) The strict application of this chapter would produce undue hardship;

(b) The hardship is not shared generally by other properties in the same zoning district and the same vicinity;

(c) The authorization of the variance will not be of substantial detriment to adjacent property and the character of the district will not be changed by the granting of the variance;

(d) The granting of the variance is based upon reason of demonstrable and exceptional hardship as distinguished from variations for purposes of convenience, profit or caprice;

(e) The hardship does not result from the actions of the owner of the property; and

(f) The granting of the variance will not confer on the owner of the property any special privilege that is denied by this chapter to other lands, structures or buildings in the same district.

(3) No variance shall be authorized unless the Board finds that the condition or situation of the property concerned or the intended use of the property is not so general or recurring a nature as to make reasonably practicable the formulation of a general regulation to be adopted as an amendment to this chapter.

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

(5) A variance from the terms of this chapter shall not be granted by the Board of Adjustment unless and until:

(a) A written application for a variance is submitted indicating the terms of this chapter under which the variance is sought, stating the ground on which it is requested, and the specific variance requested;

(b) Notice shall be given at least 15 days in advance of public hearing. The owner of the property for which variance is sought or his or her agent shall be notified by mail. Notice of the hearing shall be posted on the property for which variance is sought, at the City Hall and in one other public place, at least 15 days prior to the public hearing;

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

(e) 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 chapter and will not be injurious to the neighborhood or otherwise detrimental to the public welfare.

(6) In granting any variance, the Board of Adjustment may prescribe appropriate conditions and safeguards in conformity with this chapter. Violation of the conditions and safeguards when made a part of the terms under which the variance is granted, shall be deemed a violation of this chapter and punishable under § 152.999.

(7) Under no circumstances shall the Board of Adjustment grant a variance to allow a use not permissible under the terms of this chapter in the district involved or any use expressly or by implication prohibited by the terms of this chapter in the district.

(8) In exercising the above-mentioned powers, the Board may, in conformity with the provisions of this chapter, reverse or affirm, wholly or partly, or may modify the order, requirement, decision or determination appealed from, and may make the order, requirement, decision or determination as ought to be made, and to that end, shall have all the powers of the officer from whom the appeal is taken.

(9) The concurring vote of four members of the Board shall be necessary to reverse any order, requirement, decision or determination of any the administrative official, or to decide in favor of the applicant on any matter upon which it is required to pass under this chapter or to effect any variation in the application of this chapter.

(Prior Code, § 11-905)

§ 152.220 APPEALS FROM.

Any persons or persons, or any board, taxpayer, department, board or bureau of the city aggrieved by any decision of the Board of Adjustment may seek review by a court of record of the decision, in the manner provided by the laws of the state and particularly by Neb. RS Chapter 19 within 15 days of the filing of the decision of the Board.

(Prior Code, § 11-906)

§ 152.221 DUTIES OF CITY OFFICERS.

(A) It is the intent of this chapter that all questions of interpretation and enforcement shall be first presented to the administrative official, and that the questions shall be presented to the Board of Adjustment only on appeal from the decision of the administrative official and recourse from the decision of the Board of Adjustment shall be to the courts as provided by law and particularly by Neb. RS Chapter 19.

(B) Under this chapter, the City Council’s duties are:

(1) To hear and decide on any matters upon which the City Council is authorized by the provisions of this chapter;

(2) Of considering and adopting or rejecting proposed amendments or the repeal of this chapter, as provided by law; and

(3) Of establishing a schedule of fees and charges as stated in § 152.236.

(Prior Code, § 11-907)