(a)

Establishment and membership of board of adjustment. A board of adjustment is hereby established, which shall consist of five members appointed by the board who are residents in the city. The membership of the first board of adjustment appointed shall serve respectively, one for one year, one for two years, one for three years, one for four years, and one for five years. Thereafter members shall be appointed for a term of five years. Members of the board of adjustment may be removed from office by the board for cause upon written charges and after public hearing. Vacancies shall be filled by resolution of the board for the length of the unexpired term.

(b)

Meetings.

(1)

The board of adjustment shall adopt rules necessary to the conduct of its affairs. The board of adjustment shall elect its own chairman who shall serve for one year. Meetings shall be held at the call of the chairperson, and at such other times as the board of adjustment may determine. The chairperson, or in his absence the acting chairperson, may administer oaths and compel the attendance of witnesses. All meetings shall be open to the public.

(2)

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 examination and other official actions, all of which shall be public record. All testimony, objections thereto and rulings thereon, shall be taken down by a reporter employed by the board of adjustment for that purpose.

(c)

Appeals to the board of adjustment.

(1)

Appeals to the board of adjustment concerning interpretation or administration of this title may be taken by any person aggrieved, or by any officer or bureau of the governing body of the city, affected by any decision of the planning and development director or planning commission. Such appeals shall be taken within a reasonable length of time, not to exceed 30 days, or such lesser period as may be provided by the rules of the board of adjustment, by filing with the planning and development director a notice of appeal specifying the grounds thereof. The planning and development director shall forthwith transmit to the board of adjustment a copy of the record of the action being appealed.

(2)

The board of adjustment shall fix a reasonable time for the hearing of appeal, give seven days' public notice thereof as due notice to the interested parties, and decide the same within a reasonable time. At the hearing, any party may appear in person, by agent or attorney.

(3)

An appeal stays all proceedings in furtherance of the action appealed from, unless the planning and development director certifies to the board of adjustment after the notice of appeal is filed with him, that by reason of facts stated in the certificate, a stay would, in his opinion, cause immediate peril to life or 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 planning and development director from whom the appeal is taken and on due cause shown.

(d)

Powers and duties. The board of adjustment shall have the following powers and duties:

(1)

Administrative review. To hear and decide appeals where it is alleged there is error in any order, requirement, decision, interpretation or determination made by the planning and development director in the enforcement of this chapter.

(2)

Variances—Conditions governing applications, procedures. To authorize upon appeal in specific cases such variance from the bulk or area regulations 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 would result in unnecessary hardship. 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 demonstrating:

(i)

That special conditions and circumstances exist which are peculiar to the land or structure involved and which are not applicable to other land or structures in the same district;

(ii)

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

(iii)

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

(iv)

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

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

b.

Notice of public hearing shall be given as is outlined in the proceedings of the board of adjustment.

c.

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

d.

The board of adjustment shall make findings that the requirements of subsection (d)(2)a of this section have been met by the applicant for the variance.

e.

The board of adjustment shall further make a finding that the granting of the variance is the minimum variance that will make possible the reasonable use of the land or structure.

In granting any variance, the board of adjustment may prescribe appropriate conditions and safeguards in conformity with this chapter. 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 chapter and punishable under this chapter.

(3)

The board of adjustment has powers of administrative officials on appeals-reversing of administrative official. In exercising the above-mentioned powers, the board of adjustment may, so long as such action is in conformity with the terms of this title, reverse or affirm, wholly or partially, or may modify the order, requirement, 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 official from whom the appeal is taken.

(4)

The concurring vote of four members of the board of adjustment shall be necessary to reverse any order, requirement, decisions 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 chapter, or to effect any variation in the application of this chapter.

(e)

Appeals from the board of adjustment. Any person or persons, or any board, taxpayer, department, or bureau of the city, aggrieved by any decision of the board of adjustment may seek review of such decision by a court of record, in the manner provided by the laws of the state.

(f)

Appeals and variance processing and costs.

(1)

It is the intent of this chapter 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 state law.

(2)

It is further the intent of this chapter that the duties of the board in connection with this chapter shall not include hearing and deciding questions of interpretation and enforcement that arise. The procedure for deciding such questions shall be as stated in this section and this chapter. Under this chapter, the board shall have only the following duties:

a.

Considering the adopting or rejecting of proposed amendments, or the repeal of this chapter, as provided by law; and

b.

Establishing a schedule of fees and charges as stated below:

(i)

Appeal fee. Application for an administrative appeal to the board of adjustment shall be made in writing to the planning and development department. Such application shall be accompanied by a fee in the amount provided in the city fee schedule to cover the cost of mailing and posting notices. An appeal shall be construed as having been perfected once the application and fee has been received.

(ii)

Variance fee. Application for a variance to a piece of property from the zoning code shall be made in writing to the planning and development department by the owner of the property or with the written permission of the property owner. Such application shall be accompanied by a fee in the amount provided in the city fee schedule.

(iii)

Other fees. To defray costs of proceedings prescribed in this article, fees shall be paid upon the filing of each application for posting and publishing all notices before the board of adjustment as required by law.

(Ord. No. 2018-0030, § 2, 4-10-2018)