Big Timber City Zoning Code
BOARD OF
ADJUSTMENT
§ 154.445 CREATION.
The Board of Adjustment is hereby established to act on variance applications as herein detailed. Said Board shall consist of five members appointed by the Mayor for three-year terms (with staggering terms), and subject to confirmation by the City Council.
(2015 Code, § 11-24-1) (Ord. 454, passed 6-19-2000)
§ 154.446 OFFICES.
At the first meeting each year, the Board shall appoint one of its members to serve as Chairperson and one member to serve as Vice Chairperson. The Zoning Officer shall be at the disposal of the Board to receive the process applications of appeal and to give advice to said Board. The Board’s office shall be at City Hall and all files of said Board shall be kept there.
(2015 Code, § 11-24-2) (Ord. 454, passed 6-19-2000)
§ 154.447 POWERS AND DUTIES.
The Board shall set its operating rules in accordance with MCA §§ 76-2-321 through 76-3-328, as amended, and shall have the following powers:
(A) Hear and decide appeals. To hear and decide appeals where it is alleged there is error in any order, requirement, decision, or determination made by an administrative official in the enforcement of this act or of any ordinance adopted pursuant thereto;
(B) Variances.
(1) Power to authorize. To authorize upon appeal in specific cases such variance from the terms of this chapter as will not be contrary to the public interest where, owing to special conditions, a literal enforcement of the provisions of this chapter will result in unnecessary hardship, and so that the spirit of this chapter shall be observed and substantial justice done.
(2) Requirements allowed modification. More specifically, the Board may, after public notice and hearing, conditionally approve, deny, or approve any request to modify the following requirements of this chapter:
(a) Setback requirements;
(b) Yard requirements;
(c) Area requirements;
(d) Height requirements;
(e) Parking requirements; and
(f) Loading requirements.
(C) Vote. The concurring vote of four members of the Board 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 this chapter or to affect any variation of this chapter; and
(D) Meetings. All Board of Adjustment meetings 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 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 and shall be a public record.
(2015 Code, § 11-24-3) (Ord. 454, passed 6-19-2000)
§ 154.448 PROCEDURE.
(A) Application for variance. After the Zoning Officer has determined that the application for land use permit does not comply with this chapter, the applicant may submit an application for variance from one or more of the requirements listed in § 154.447(B)(2). An application for variance shall be submitted to the Zoning Officer. No application will be regarded as filed unless it is complete and until the required fee has been paid.
(B) Investigation. The Board shall cause to be made such investigation of facts bearing on the application as will provide necessary information to assure that the action on each such application is consistent with the intent and purpose of this chapter. During the time of appeal, all construction shall cease and shall not commence until such time of approval by the Board of Adjustment.
(2015 Code, § 11-24-4) (Ord. 454, passed 6-19-2000)
§ 154.449 PUBLIC HEARING AND NOTICE.
(A) There shall be a public hearing for each application of variance. The Zoning Officer shall post notice of hearing on the property in question at least seven days prior to the hearing date. Notice shall be published once in a newspaper of general circulation at least seven days prior to the hearing date.
(B) The Planning Office is responsible for paying the cost of the notice. The Board shall take testimony from persons interested in said application.
(2015 Code, § 11-24-5) (Ord. 454, passed 6-19-2000)
§ 154.450 APPROVAL.
In approving applications of appeal or modifications, the Board shall designate such lawful conditions as will secure substantial protection for the public health, safety, and general welfare; and shall find as follows:
(A) Consistent with intent and purpose. Such modifications will be consistent with the intent and purpose of this chapter and/or any adopted growth policy;
(B) Unnecessary hardship. Strict compliance with the provisions of this chapter would create unnecessary hardship or unreasonable situation on a particular property due to unusual or extreme topography, unusual shape of the property, or the prevalence of similar conditions in the immediate vicinity of the property;
(C) Minimal adverse effect. Such modifications will have minimal adverse effects on abutting properties or the permitted uses thereof; and
(D) Additional conditions for approval. The lawful conditions stated in the approval are deemed necessary to protect the public health, safety, and general welfare, which provisions may include:
(1) A time period within which the proposed structures shall be erected;
(2) Requiring landscaping and maintenance thereof;
(3) Requiring the surfacing and marking of off-street parking and loading areas; and
(4) Any other conditions as will make possible the development of the city in an orderly and efficient manner and in conformity with the intent and purpose set forth in this subchapter.
(2015 Code, § 11-24-6) (Ord. 454, passed 6-19-2000)
§ 154.451 CONDITIONS OF APPROVAL.
Any approval under this subchapter shall be subject to the terms of the conditions designated in connection therein.
(2015 Code, § 11-24-7) (Ord. 454, passed 6-19-2000)
§ 154.452 APPEALS TO BOARD OF ADJUSTMENT.
(A) Right to appeal. Any officer, department, board, or bureau of the municipality, or any person aggrieved or affected by any decision of the Zoning Officer, may take appeals to the Board of Adjustment. Such appeal shall be taken within a reasonable time by filing with the Board of Adjustment a notice of appeal specifying the reasons for such appeal, and transmitting all papers constituting the record upon which the action appealed was taken.
(B) Hearing; notice; Board’s decision. The Board of Adjustment shall fix a reasonable time for the hearing of appeal not to exceed 30 days, publish notice once in a newspaper of general circulation at least seven days prior to the hearing date, as well as due notice to the parties in interest. The Board shall render a decision within a reasonable time not to exceed ten days thereafter. At the hearing, any party may appear in person or by attorney.
(C) Stay of proceedings.
(1) An appeal stays all proceedings in furtherance of the action appealed, unless the applicant certifies to the Board of Adjustment after the notice of appeal shall have been filed that, by reason of facts stated in the certificate, a stay would cause imminent peril to life or property.
(2) 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. The applicant must be notified of the restraining order and due cause must be shown.
(D) Power of Board. In exercising the above mentioned powers, the Board of Adjustment may reverse or affirm, wholly or partly, or modify the order, requirement, decision, or determination brought up for appeal.
(2015 Code, § 11-24-8) (Ord. 454, passed 6-19-2000)
§ 154.453 APPEALS FROM BOARD OF ADJUSTMENT.
(A) Any person or persons jointly or severally aggrieved by any decision of the Board of Adjustment or any taxpayer, officer, department, board, or bureau of the municipality 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.
(B) Such petition shall be presented to the court within 30 days after the filing of the decision in the office of the Board.
(2015 Code, § 11-24-9) (Ord. 454, passed 6-19-2000)
§ 154.454 TIME DECISION EFFECTIVE.
The decision of the Board of Adjustment shall be final except as provided for in this subchapter and, if a land use permit is not obtained for the subject property within six months from the date of the Board’s decision, the variance shall be automatically cancelled and become null and void.
(2015 Code, § 11-24-10) (Ord. 454, passed 6-19-2000)