Braham City Zoning Code
VARIANCES AND
APPEALS
§ 154.395 BOARD OF ADJUSTMENT AND APPEALS.
The City Council shall act as the Board of Adjustment and Appeals, and shall have the following powers:
(A) To hear and decide appeals where it is alleged that there is an error in any order, requirement, decision, or determination made by an administrative official in the enforcement of this chapter; and
(B) To hear requests for variances from the literal provisions of this chapter in instances where the strict enforcement would cause undue hardship because of circumstances unique to the individual property under consideration.
(Ord. 199, passed 2-7-2000)
§ 154.396 FINDING OF FACT.
In considering all requests for a variance or appeal, the City Council, acting as the Board of Adjustment and Appeals, shall make a finding of fact, as appropriate, that the proposed action will not:
(A) Impair an adequate supply of light and air to adjacent property;
(B) Unreasonably increase the congestion in the public right-of-way;
(C) Increase the danger of fire or endanger the public safety;
(D) Unreasonably diminish or impair established property values within the neighborhood;
(E) Cause an unreasonable strain upon existing municipal facilities and services;
(F) Be contrary in any way to the provisions and intent of the city’s Growth Management System; and
(G) Have a negative, direct and indirect, fiscal impact upon the city, county, or school district, unless the proposed use is determined to be in the public interest.
(Ord. 199, passed 2-7-2000)
§ 154.397 CONDITIONS FOR GRANTING VARIANCES.
(A) The City Council, acting as the Board of Adjustments and Appeals, may not permit, as a variance, any use that is not permitted under this chapter for property in the zone where the affected person’s land is located.
(B) A variance may be granted only when there exists a non-economic hardship in the reasonable use of a specific parcel of property. A non-economic hardship shall exist by reasons of one, or any, of the following:
(1) Narrowness, shallowness, or shape of a specific parcel of property or a lot existing, and of record, upon the effective date of this chapter;
(2) Exceptional topographic or water conditions of a specific parcel of land or lot;
(3) The property cannot be put to reasonable use if used under the conditions allowed by this chapter;
(4) The plight of the landowner is due to circumstances unique to the property not created by the landowner; and
(5) Granting the variance will not alter the essential character of the locality.
(a) Economic considerations alone do not constitute an undue hardship if reasonable use for the property exists under the terms of this chapter.
(b) A variance may be granted for in divisions (B)(1) through (B)(4) above when the strict application of the provisions of this chapter would result in exceptional difficulties in developing the property in a legally permissible manner. The Board of Adjustment and Appeals may impose conditions in granting the variance to ensure compliance to protect adjacent properties.
(Ord. 199, passed 2-7-2000)
§ 154.398 PROCEDURES.
(A) Requests for variances or appeals shall be filed with the Zoning Administrator on an official application form. The application shall be accompanied by a fee as outlined in § 154.368, or as amended. This fee shall not be refunded. The application shall also be accompanied by copies of detail written, or graphic materials, fully explaining the proposed request. The Zoning Administrator shall refer the application, along with all related information, to the Planning Commission, acting in an advisory role to the Board of Adjustment and Appeals, for consideration and report at least ten days before the next regular meeting. The Zoning Administrator, on behalf of the Planning Commission, shall set a date for a public hearing. Notice of the hearing shall be posted, as provided by state law, at least ten days prior to the date of the hearing. Notice shall be mailed not less than ten days to all property owners of record, according to the county assessment records, within 350 feet of the property to which the request relates. A copy of the notice, and a list of the property owners and addresses to which the notices were sent, shall be attested to by the Zoning Administrator or City Administrator, and made part of the official record. The failure to give mailed notice to individual property owners, or defects in the notice, shall not invalidate the proceedings, provided a bona fide attempt to comply with this section has been made.
(B) The Planning Commission, acting in an advisory role to the Board of Adjustment and Appeals, shall consider the request at its next regular meeting, unless the filing date falls within 15 days of the meeting, in which case the request would be placed on the agenda and considered at the regular meeting following the next regular meeting. The applicant, or a representative thereof, shall appear before the Planning Commission in order to answer questions concerning the proposed amendment or conditional use.
(C) The Planning Commission shall consider the request and hold a public hearing at its next regular meeting, unless the filing date falls within 15 days of the meeting, in which case the request would be placed on the agenda and considered at the regular meeting following the next regular meeting. The Zoning Administrator shall refer the application, along with all related information, to the City Planning Commission for consideration. The applicant, or a representative thereof, shall appear before the Planning Commission in order to answer questions concerning the proposed amendment or conditional use.
(D) The Planning Commission shall consider possible adverse effects of the proposed amendment or conditional use. Its judgment shall be based upon, but not limited to, the following factors:
(1) Relationship to the city’s Growth Management System Comp. Plan;
(2) The geographical area involved;
(3) Whether the use will tend to, or actually, depreciate the area in which it is proposed; and
(4) The character of the surrounding area.
(E) The Planning Commission, City Council, and city staff shall have the authority to request additional information from the applicant concerning operational factors, or to retain expert testimony with the consent, and at the expense, of the applicant concerning the operational factors, the information to be declared necessary to establish performance conditions in relation to all pertinent sections of this chapter.
(F) Within 60 days from the date of reference of the proposed variance or appeal, the Planning Commission shall make a finding of fact, and recommend the actions or conditions related to the request to the City Council. In the case of additional information requested from the applicant pursuant to division (C) above, the 60-day period will begin upon receipt of the information by the city.
(G) Upon receiving the report and recommendation of the Planning Commission, or until 60 days have elapsed from the date of reference of the proposed variance or appeal without a report by Planning Commission, the City Council shall place the application, and/or report and recommendation, on the agenda for the next regular meeting. The reports, recommendations, and findings shall be entered in, and made part of, the written record of the Council meeting.
(H) (1) Upon reviewing the application, and/or receiving the report and recommendation of the Planning Commission, the City Council shall take one of the following actions:
(a) Approve or disapprove the request as recommended by the Planning Commission;
(b) Approve or disapprove the recommendation of the Planning Commission with modifications, alterations, or differing conditions. The modifications, alterations, or differing conditions shall be in writing and made part of the Council’s records; and/or
(c) Refer the recommendation back to the Planning Commission for further consideration. This procedure shall be followed only one time on a singular action.
(2) Approval of variances or appeals shall require passage by two-thirds vote of the full City Council. The Zoning Administrator or City Administrator shall notify the applicant of the Council’s action.
(I) The decisions of the Planning Commission shall be advisory to the City Council. The decisions of the City Council shall be final subject to judicial review.
(J) A certified copy of any variance shall be filed with the County Recorder. A legal description of the property shall be included.
(Ord. 199, passed 2-7-2000)
§ 154.399 LAPSE OF VARIANCE, APPEAL.
Whenever, within one year after granting a variance or appeal the terms as permitted by the variance or appeal shall not have been completed, then the variance or appeal shall become null and void, unless a petition for extension of time in which to complete the work has been granted by the City Council. The extension shall be requested in writing and filed with the Zoning Administrator at least 30 days before the expiration of the original variance or appeal. There shall be no charge for the filing of the petition. The request for extension shall state facts showing a good faith attempt to complete the work permitted in the variance or appeal. The petition shall be presented to the Planning Commission for recommendation and to the City Council for a decision, and shall be requested only one time on a singular action.
(Ord. 199, passed 2-7-2000)
§ 154.400 PERFORMANCE BOND.
(A) The City Council shall have the authority to require a performance bond, or other securities, when it is deemed necessary and appropriate.
(B) Except in the case of non-income producing residential property, upon approval of a variance or appeal, the city may be provided with a surety bond, cash escrow certificate of deposit, securities, or cash deposit prior to the issuing of building permits or initiation of work on the proposed improvements or development. The security shall guarantee conformance and compliance with the conditions of the variance or appeal, and the ordinances of the city.
(C) The security may be in the amount of the City Council’s estimated costs of labor and materials for the proposed improvements or development.
(D) The city may hold the security until completion of the proposed improvements or development, and a certificate of occupancy indicating compliance with the variance or appeal, and ordinances of the city, has been issued by the City Zoning Administrator.
(E) Failure to comply with the conditions of the variance or appeal, and/or ordinances of the city, may result in forfeiture of the security.
(Ord. 199, passed 2-7-2000)