The board of appeal shall consist of five (5) members, each to be appointed by the chairperson or executive officer of the board of county commissioners, with the advice and consent of the legislative body. Each member shall serve a term of four (4) years; provided, that the term of the members of the first board so appointed shall be such that the term of one member shall expire each year. Any member may be removed for cause by the appointing authority upon written charges and after public hearing, if such public hearing is requested. Vacancies shall be filled for the unexpired term of any member whose position becomes vacant in the same manner as in the case of original appointments. One member, but not more than one, of the planning commission shall be a member of the board of appeal. The board of county commissioners may appoint alternate members of such board, and due to absence from the county, illness, interest in a case before the board or any other cause, his or her place may be taken during such temporary disability by an alternate member designated for that purpose; provided, no more than two (2) alternate members may sit at any meeting of the board of appeal at one time. (2004 Code § 10.04.010; amd. Ord. 2022-07, 10-4-2022)

The board of appeal shall organize and elect a chairperson for a term of one year and adopt rules in accordance with the provisions of this chapter. Meetings of the board shall be held at the call of the chairperson and at such 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 of the board shall be open to the public. The board shall keep minutes of its proceedings, showing the vote of each member upon each question or if absent or failing to vote, indicating that fact. Records of its examinations and other official actions, all of which shall be immediately filed in the office of the board, shall be a public record. (2004 Code § 10.04.020; amd. 2015 Code; Ord. 2022-07, 10-4-2022)

A quorum shall consist of four (4) members of the board, and no evidence shall be presented unless a quorum is present. (2004 Code § 10.04.030; Ord. 2022-07, 10-4-2022)

The board of appeal shall hear and decide the following:

   A.   Appeals: Appeals from zoning decisions applying this title;

   B.   Special Exceptions: Special exceptions to the terms of this title;

   C.   Variances: Variances from the terms of this title; and

   D.   Determinations Of Nonconforming Uses And Noncomplying Buildings:

      1.   To permit the enlargement of, addition to, or relocation of a building or structure, nonconforming as to use regulations, as follows:

         a.   For a nonconforming use located in a residential zone, the enlargement, addition or relocation shall either: 1) comply with all the height, yard and area requirements for a single-family dwelling in the zone in which the nonconforming building is located; or 2) the proposed enlargement, addition or relocation will either: a) improve the area by increasing the off street parking; or b) improve the general appearance, convenience or safety of the area;

         b.   For a nonconforming use located in any zone other than a residential zone, the enlargement, addition or relocation shall comply with all height, yard and area requirements for a main building, other than dwellings, in the zone in which it is located;

         c.   Before granting a permit for any enlargement, addition or relocation as provided above, the board of appeal shall find in its public hearing that the proposed changes will not hinder or obstruct the attainment of the objectives listed in section 9-1-2 of this title more than does the existing nonconforming use;

         d.   That granting the variance does not constitute a special privilege inconsistent with the limitations upon other properties in the vicinity and land use district in which such property is located;

         e.   That granting the variance does not allow a use or activity which is prohibited by the regulations governing the subject parcel; and

         f.   That granting the variance will not be inconsistent with the general plan.

      2.   The board of appeal may allow those enlargements of, additions to, or relocation of buildings and structures, nonconforming as to yard, height or area regulations in those cases where an undue hardship will result to the owner of the land involved unless granted, and the attainment of the objectives listed in section 9-1-2 of this title will not be hindered or obstructed, and provided the proposed enlargement, addition to or relocation will either: a) improve the area by increasing needed off street parking; or b) improve the general appearance, convenience or safety of the area.

      3.   Where a zone boundary line divides a lot in single ownership at the time of the establishment of said boundary, the board may permit a use authorized on either portion of such lot to extend more than thirty-five feet (35') beyond the district boundary line, or extend to an area greater than five thousand (5,000) square feet beyond the said boundary line.

      4.   Permit a nonconforming use to be changed to another use allowed in the same or in a more restrictive zone than the one in which the nonconforming use would be allowed; provided, that the board of appeal finds in its public hearing that such changes will not hinder or obstruct the attainment of the objectives listed in section 9-1-2 of this title more than does the existing nonconforming use.

      5.   Permit the construction and use of a dwelling upon a lot which does not have frontage on a dedicated right of way, but does have frontage on a street.

      6.   Permit the splitting of a lot wherein such lot split creates a lot which does not have the required width of the zone in which the lot is located; provided, the created nonconforming lot meets the area requirements of the zone, and the structure placed on the lot meets all required site standards of the zone; and furthermore that before building permits are issued for the nonconforming split lot, the lot split shall be reviewed and approved by the planning commission. (2004 Code § 10.04.040; amd. Ord. 2022-07, 10-4-2022)

   A.   Permitted; Application: Any person or entity desiring a waiver or modification of the requirements of this title as applied to a parcel of property that he owns, leases, or in which he holds some other beneficial interest may apply to the board of appeal for a variance from the terms of this title.

   B.   Terms For Granting Variance:

      1.   Except as provided in subsection C of this section, the board of appeal may grant a variance only if:

         a.   Literal enforcement of this title would cause an unreasonable hardship for the applicant that is not necessary to carry out the general purpose of this title;

         b.   There are special circumstances attached to the property that do not generally apply to other property in the same district;

         c.   Granting the variance is essential to the enjoyment of a substantial property in the same district;

         d.   The variance will not substantially affect the general plan and will not be contrary to the public interest; and

         e.   The spirit of this title is observed and substantial justice done.

      2.   a.   In determining whether or not enforcement of this title would cause unreasonable hardship under subsection B1 of this section, the board of appeal may not find an unreasonable hardship unless the alleged hardship:

            (1)   Is located on or associated with the property for which the variance is sought; and

            (2)   Comes from circumstances peculiar to the property, not from conditions that are general to the neighborhood.

         b.   In determining whether or not enforcement of this title would cause unreasonable hardship under subsection B1 of this section, the board of appeal may not find an unreasonable hardship if the hardship is self-imposed or economic.

      3.   In determining whether or not there are special circumstances attached to the property under subsection B1 of this section, the board of appeal may find that special circumstances exist only if the special circumstances:

         a.   Relate to the hardship complained of; and

         b.   Deprive the property of privileges granted to other properties in the same district.

   C.   Burden Of Proof: The applicant shall bear the burden of proving that all of the conditions justifying a variance have been met.

   D.   Variances Run With Land: Variances run with the land.

   E.   Use Variances Prohibited: The board of appeal and any other body may not grant use variances.

   F.   Additional Requirements Imposed: In granting a variance, the board of appeal may impose additional requirements on the applicant that will:

      1.   Mitigate any harmful effects of the variance; or

      2.   Serve the purpose of the standard or requirement that is waived or modified. (2004 Code § 10.04.050)

   G.   Time Limitation On Variance: In the event the board of appeal does grant a variance in accordance with the provisions of this chapter, alterations in accordance with the variance must be activated within six (6) months after the date such variance is granted or the variance may be extended an additional six (6) months by the board of appeal, only if the petitioner shows adequate cause to the board that circumstances necessitate a time extension. (2004 Code § 10.04.110; amd. Ord. 2022-07, 10-4-2022)

   A.   Permitted: Appeals to the board of appeal may be taken by any person or entity adversely affected by a zoning decision administering or interpreting a zoning ordinance by alleging that there is error in the order, requirement, decision or determination made by any designated county official charged with the administration and enforcement of this title, or any other administrative officer or board.

   B.   Time Limit For Filing: An appeal must be filed, in writing, with the county clerk, within ten (10) business days of the date the appealed order, requirement, decision or determination was ordered, imposed or made. (2004 Code § 10.04.055)

   C.   Notice Of Hearing; Right Of Appearance: The board of appeal shall fix a reasonable time for the hearing of the appeal, give public notice thereof as well as due notice to the parties in interest, and shall decide the same within a reasonable time. Any party may appear at the hearing in person or by agent or by attorney. (2004 Code § 10.04.060)

   D.   Stay Of Proceedings Pending Appeal: An appeal stays all proceedings in furtherance of the action appealed from, unless the officer from whom the appeal is taken certifies to the board of appeal, after the notice of appeal shall have been filed with said officer, that by reason of facts stated in the certificate, a stay would in their opinion cause imminent peril to life or property. In such case proceedings shall not be stayed otherwise than by restraining order, which may be granted by the board of appeal or by the district court, on application and notice and on due cause shown. (2004 Code § 10.04.070)

   E.   Decision On Appeal: In exercising the above mentioned powers, the board of appeal may, in conformity with the provisions of this title, reverse or affirm, wholly or partly, or may modify the order, requirements, decision or determination appealed from, and may make such order, requirements, 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. (2004 Code § 10.04.080)

   F.   Vote Necessary For Reversal: The concurring vote of four (4) members of the board shall be necessary to reverse any order, requirement or determination of any such administrative official, or to decide in favor of the appellant on any matter upon which it is required to pass under any ordinance, or to effect any variation in such ordinance. (2004 Code § 10.04.090)

   G.   Standard Of Review: All appeals will be done as a Record Review of factual matters. (2004 Code § 10.04.090; amd. Ord. 2022-07, 10-4-2022)

Upon filing any appeal or application to the board of appeal, the appellant or applicant shall pay to the county a fee prescribed by the county commission. The said fee shall be collected by the officer in whose office said appeal is filed, and shall be deposited with the county treasurer and credited to the general fund. No appeal or application shall be considered by the board of appeal unless and until such fee has been paid. (2004 Code § 10.04.120; amd. Ord. 2022-07, 10-4-2022)

Each member of the board of appeal and the secretary thereof may be compensated by an amount established by the county commission for each meeting of the board which he or she shall attend, and for actual expenses incurred, upon presentation of proper receipts and vouchers. (2004 Code § 10.04.130; amd. 2015 Code; Ord. 2022-07, 10-4-2022)

The county or any person aggrieved by any decision of the board of appeal may have and maintain a plenary action for relief therefrom in any court of competent jurisdiction; provided, a petition for such relief is presented to the court within thirty (30) days after the board of appeal files its decision in the office of the board. (2004 Code § 10.04.100; amd. Ord. 2022-07, 10-4-2022)