Butler City Zoning Code

ARTICLE II

Administration and Enforcement

§ 26-31 Enforcement by zoning inspector.

[Z.O., § 10.01.01]

There is hereby established the office of zoning inspector. It shall be the duty of the zoning inspector to enforce this chapter in accordance with the administrative provisions of this chapter. All departments, officials and public employees of the City vested with the duty or authority to issue permits or licenses, shall conform to the provisions of this chapter and shall issue no permit or license for any use, building or purpose in conflict with the provisions of this chapter. Any permit or license, issued in conflict with the provisions of this chapter shall be null and void.

§ 26-32 Zoning certificate and certificate of occupancy.

[Z.O., §§ 10.01.02, 10.01.06, 10.01.07; Ord. No. 1155, 10-18-2022]

Zoning certificate. The zoning inspector may issue a zoning certificate verifying that a proposed use is in conformity with the provisions of this chapter after sufficient documentation as he may require to assist in his determination. Such documentation will be only retained as verification of intent of the use type by the applicant. Such zoning certificates shall not be required from owners of no-impact home-based businesses as defined further in § 26-170 of this City's Code.

Certificate of occupancy. It shall be unlawful for any owner, lessee or tenant to occupy any structure, building or land, or part thereof, hereafter erected, created, changed, converted or enlarged until a certificate of occupancy has been issued by the building code enforcement officer. Such certificate of occupancy shall show and certify that a zoning certificate has been issued and that such building, structure or premises has been constructed, altered or improved in compliance with the provisions of this chapter, and all other applicable codes or ordinances and all conditions and requirements, if any, stipulated by the board of adjustment or other proper authority. Such certificates of occupancy shall not be required from owners of no-impact home-based businesses as defined further in § 26-170 of this City's Code.

Inspector to act within 30 days. The zoning inspector shall act upon all such applications on which he is authorized to act by the provisions of this chapter within 30 days after they are filed in full compliance with all applicable requirements. He shall either issue a zoning certificate within 30 days or shall notify the applicant in writing of his refusal of such certificate and the reasons therefor. Failure to notify the applicant in case of such refusal within 30 days shall entitle the applicant to file for rezoning or submit his application to the board of zoning adjustment.

§ 26-33 Nonconforming uses.

[Z.O., § 6.02; Ord. No. 1185, 4-15-2025]

The continuance of nonconforming uses or structures shall be subject to the following limitations:

Continuation. The use of any land or structure existing at the time of the enactment of this chapter or subsequent amendments thereto may be continued even though such use may not conform with the regulations of this chapter for the district in which it is located. With special permission of the planning commission and zoning board, any nonconforming use in existence at the time of the enactment of this chapter may continue as the use of right, exercising all privileges of this chapter pertaining to the use district in which it would normally be included, with the exception of all of the provisions in Subsection (a)(3) of this section.

Restoration. A structure that is devoted to a nonconforming use which is destroyed or damaged in any manner or from any cause whatsoever, to the extent that the cost of restoration to the condition it was before the occurrence shall exceed 50% of the cost of reconstructing the entire structure, shall not be restored unless:

Such structure when restored shall comply with all provisions of this chapter; or

Special permission of the planning commission is granted to restore it to its original nonconforming use.

Abandonment. Whenever a nonconforming use has been discontinued for a period of one year, such use shall not thereafter be reestablished without special permission of the planning commission, or otherwise any subsequent use shall be in conformity with the provisions of this chapter.

Substitution. If no structural alterations are made, a nonconforming use of a building may be changed to another nonconforming use of the same or of a more restricted classification. Whenever a nonconforming use has been changed to a more restricted use or to a conforming use, such use shall not thereafter be changed to a less restrictive use.

§ 26-34 Amendment of regulations, districts.

[Z.O., §§ 9.01 — 9.06; Ord. No. 1140, 6-1-2021]

Council may amend ordinance. Whenever the public necessity, convenience, general welfare or good zoning practice require, the City Council may by ordinance, after recommendation thereon by the City planning commission and subject to the procedure provided in this section, amend, supplement or change the regulations, district boundaries or classifications or property, now or hereafter established by this chapter or amendments thereof. It shall be the duty of the planning commission to submit its recommendations regarding all applications or proposals for amendments or supplements. An amendment, supplement, reclassification or change may be initiated by the commission on its own motion or by a verified application of one or more of the owners or lessees of property within the area proposed to be changed or affected by this chapter.

Procedure for change. Applications for any change of district boundaries or classifications or property as shown on the zoning map, and for regulation amendments, shall be submitted to the planning commission, at its public office, upon such forms, and all shall be accompanied by such data and information, as may be prescribed for that purpose by the commission, so as to assure the fullest practicable presentation of facts for the permanent record. Such data shall include in any event a plat or map drawn to a scale of not less than 200 feet to the inch showing the land in question, its location, the length and location of each boundary thereof, and the location of properties within 300 feet of such land. Each such application shall be verified by at least one of the owners or lessees of property within the area proposed to be reclassified, attesting to the truth and correctness of all facts and information presented with the application. Applications for amendments or district changes initiated by the commission itself shall be accompanied by its own motion pertaining to such proposed amendment.

List of property owners. Any person or persons desiring a change in the zoning classification of property shall file with the application for such change a statement giving the names and addresses of the owners of all properties lying within 185 feet of any part of the exterior boundaries of the premises the zoning classification of which is proposed to be changed.

Commission hearing, notice. Before submitting its recommendations to the City Council, the planning commission shall hold at least one public hearing thereon, notice of which shall be given by one publication in a newspaper of general circulation in the City at least 15 days before the date of such hearing.

Commission recommendations. The commission may recommend that the application be granted as requested, or it may recommend a modification of the zoning amendment requested in the application, or it may recommend that the application be denied. These recommendations shall then be certified to the Council. If a recommendation has not been rendered with 60 days of the commission public hearing, the recommendation will be considered as a negative recommendation, or denial of the application and such recommendation will proceed to the Council automatically without written notice.

Council hearing. After receiving from the commission the certification of the recommendations on the proposed amendment of supplement, and before adoption of such amendment, the Council shall hold a public hearing thereon, at least 15 days' notice of the time and place of which shall be given by publication in a newspaper of general circulation in the City.

Council final action. Following such hearing and after reviewing the recommendations of the commission thereon, the Council shall consider such recommendations and vote on the passage of the proposed amendment to the test of the ordinance or the zoning map.

Map change pending; zoning certificate, building permit. Whenever the Council has taken under advisement a change or amendment of the zoning map from a less restricted district to a more restricted district classification, as evidenced by resolution of record, no zoning certificate or building permit shall be issued within 60 days from the date of such resolution which would authorize the construction of a building or the establishment of a use which would become nonconforming under the contemplated redistricting plan.

Fees. The fee for a zoning amendment, except those initiated by the commission, shall be $25 unless determined by the commission that a sum in excess of this amount is required to cover the costs of publishing, posting and/or mailing notices of hearings.

§ 26-51 Composition; appointment; compensation; vacancies.

[Ord. No. 1052, § 1, 1-16-2018[1]]

A zoning board of adjustment as constituted at the time of enactment of this chapter shall continue in power. The board shall consist of five residents of Butler appointed by the Mayor, with consent of the City Council, for terms of five years, except that of those first appointed shall serve respectively, one shall serve for one year, one for two years, one for three years, one for four years, and one for five years. Three alternate members may be appointed to serve in the absence of or the disqualification of the regular members. Vacancies shall be filled in the same manner for the unexpired term. Members of the board shall serve without compensation and each member shall serve until his successor is appointed and qualified. All members and alternates of the board shall be removable for cause by the appointing authority upon written charges and after public hearings by the City Council.

Editor's Note: This ordinance also repealed former Div. 2, which pertained to similar subject matter and derived from Z.O., §§ 10.02.01 — 10.02.04, 10.03, 10.04.02.01 — 10.04.02.03, 10.04.03 — 10.04.05, as amended.

§ 26-52 Organization; rules; meetings; records.

[Ord. No. 1052, § 1, 1-16-2018]

The board shall organize and elect a chairman who shall serve for a term of one year. The board shall then adopt rules for its own government in accordance with this chapter. Meetings shall be held at the call of the chairman and at such times as the board deems advisable. Four members of the board shall constitute a quorum. The chairman, or in his absence the acting chairman, may administer oaths and may compel the attendance of witnesses. All meetings of the board shall be open to the public. The secretary shall keep minutes of the proceedings, indicating the vote of each member on each question, or if absent or failing to vote, indicating such fact. The secretary shall also keep records of the board's examinations and other official actions, all of which are to be immediately filed in the office of the board and shall be a public record. The secretary shall conduct all official correspondence and supervise the clerical work of the board. All testimony, objections thereto and rulings thereon, shall be taken down by a reporter employed by the board for that purpose.

§ 26-53 Powers.

[Ord. No. 1052, § 1, 1-16-2018]

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 §§ 26-51 to 26-62;

To hear and decide all matters referred to it or upon which it is required to pass under these sections;

In passing upon appeals, where there are practical difficulties or unnecessary hardship in the way of carrying out the strict letter of such ordinance, to vary or modify the application of any of the regulations or provisions of such ordinance relating to the construction or alteration of buildings or structures or the use of land so that the spirit of the ordinance shall be observed, public safety and welfare secured and substantial justice done.

In exercising the above-mentioned powers, the board may, in conformity with the provisions of §§ 26-51 to 26-62, reverse or affirm wholly or partly, 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 all the powers of the officer from whom the appeal is taken. The concurring vote of four members of the board shall be necessary to reverse any order, requirement, decision or determination of any such administrative official, or to decide in favor of the applicant on any matter upon which it is required to pass under any such ordinance or to effect any variation in such ordinance.

§ 26-54 Applications; appeals, hearings and stays.

[Ord. No. 1052, § 1, 1-16-2018]

Applications for variance, when and by whom taken. An application for variance, in cases in which the board has original jurisdiction under the provisions of this chapter, may be made by any person, by any neighborhood organization representing such person, or by a governmental officer, department, board or bureau. Such applications shall be filed with the zoning inspector who shall transmit the same to the secretary of the board.

Report on application for variance. The application for variance shall be investigated by a member of the City staff and a report thereon, together with recommendations, shall be submitted to the board.

Appeals, when and by whom taken. An appeal to the board may be taken by any person aggrieved or by any officer, department, board or bureau of the City affected by any decision of the zoning inspector. Such appeal shall be taken within 20 days, by filing with the zoning inspector and with the board, a notice of appeal specifying the grounds thereof. The zoning inspector shall forthwith transmit to the board all the papers constituting the record upon which the appeal is taken.

Secretary's report on appeals. The secretary shall investigate the appeal and submit a report thereon, together with his recommendations, to the board.

Hearings. The board shall fix a reasonable time for the hearing of the application or appeal and shall give written notice of the hearing to the parties in interest, including all property owners within 200 feet of the property in question at least 15 days prior to the hearing. Each application or appeal shall be accompanied by a check, payable to the City, or a cash payment of $75. At the hearing, any party may appear in person or be represented by agent or attorney.

Decisions of board.

The board shall decide all applications and appeals within 30 days after the date of notice of the required hearing thereof, unless otherwise extended by the parties.

A certified copy of the board's decision shall be transmitted to the applicant or appellant, and to the zoning inspector. Such decision shall be binding upon the zoning inspector and observed by him, and he shall incorporate the terms and conditions of the same in the permit to the applicant or appellant, whenever a permit is authorized by the board.

A decision of the board shall not become final until the expiration of five days from the date such decision is made, unless the board shall find the immediate taking effect of such decision is necessary for the preservation of property or personal rights and shall so certify on the record.

Appeal from decisions of board. Any person or persons, jointly or severally aggrieved by any decision of the board of adjustment, or any officer, department, board or bureau of the City may present to the circuit court of the county a petition, duly verified, setting forth that such decision is illegal, in whole or in part, specifying the grounds of the illegality. Such petition shall be presented to the court within 30 days after the filing of the decision in the office of the board of adjustment. Any such case shall be heard and determined by the court without a jury.

Stay of proceedings. An appeal shall stay all proceedings in furtherance of the action appealed from, unless the zoning inspector certifies to the board after notice of appeal has been filed with him, that by reasons of acts stated in the certificate a stay would, in his opinion, cause imminent 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 or by the circuit court of the county on application, or notice to the zoning inspector, or by judicial proceedings, and on due cause shown.

§ 26-55 Variances.

[Ord. No. 1052, § 1, 1-16-2018]

Variances where literal enforcement would create unnecessary hardship. The board shall have the power to authorize upon appeal in specific cases, filed as hereinbefore provided, such variances from the terms, provisions or requirements of this chapter as will not be contrary to the public interest; provided, however, that such variances shall be granted only in such cases where, owing to special and unusual conditions pertaining to a specific piece of property, the literal enforcement of the provisions or requirements of this chapter would result in practical difficulty or unnecessary hardship, so that the spirit of the chapter shall be upheld, public safety and welfare secured and substantial justice done.

Findings of the board. No such variance of the provisions or requirements of this chapter shall be authorized by the board unless the board finds, beyond reasonable doubt that all the following facts and conditions exist:

Exceptional circumstances: That there are exceptional or extraordinary circumstances or conditions applying to the property in question or to the intended use of the property, that do not apply generally to other properties or classes of uses in the same zoning district.

Preservation of property rights: That such variance is necessary for the preservation and enjoyment of substantial property rights possessed by other properties in the same zoning district and in the same vicinity.

Absence of detriment: That the authorizing of such variance will not be of substantial detriment to adjacent property, and will not materially impair the purposes of this chapter or the public interest.

Not of general nature: No grant of a variance shall be authorized unless the board specifically finds that the condition or situation of the specific piece of property, or the intended use of said property, for which variance is sought is not of so general or recurrent a nature as to make reasonably practicable the formulation of a general regulation for such conditions or situation.

Board may reverse orders, etc. In exercising its power, the board may, in conformity with the provisions of statute and of this chapter, reverse or affirm, wholly or partly, 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 all powers of the office from whom the appeal is taken.

Butler City Zoning Code

ARTICLE II

Administration and Enforcement

§ 26-31 Enforcement by zoning inspector.

[Z.O., § 10.01.01]

There is hereby established the office of zoning inspector. It shall be the duty of the zoning inspector to enforce this chapter in accordance with the administrative provisions of this chapter. All departments, officials and public employees of the City vested with the duty or authority to issue permits or licenses, shall conform to the provisions of this chapter and shall issue no permit or license for any use, building or purpose in conflict with the provisions of this chapter. Any permit or license, issued in conflict with the provisions of this chapter shall be null and void.

§ 26-32 Zoning certificate and certificate of occupancy.

[Z.O., §§ 10.01.02, 10.01.06, 10.01.07; Ord. No. 1155, 10-18-2022]

Zoning certificate. The zoning inspector may issue a zoning certificate verifying that a proposed use is in conformity with the provisions of this chapter after sufficient documentation as he may require to assist in his determination. Such documentation will be only retained as verification of intent of the use type by the applicant. Such zoning certificates shall not be required from owners of no-impact home-based businesses as defined further in § 26-170 of this City's Code.

Certificate of occupancy. It shall be unlawful for any owner, lessee or tenant to occupy any structure, building or land, or part thereof, hereafter erected, created, changed, converted or enlarged until a certificate of occupancy has been issued by the building code enforcement officer. Such certificate of occupancy shall show and certify that a zoning certificate has been issued and that such building, structure or premises has been constructed, altered or improved in compliance with the provisions of this chapter, and all other applicable codes or ordinances and all conditions and requirements, if any, stipulated by the board of adjustment or other proper authority. Such certificates of occupancy shall not be required from owners of no-impact home-based businesses as defined further in § 26-170 of this City's Code.

Inspector to act within 30 days. The zoning inspector shall act upon all such applications on which he is authorized to act by the provisions of this chapter within 30 days after they are filed in full compliance with all applicable requirements. He shall either issue a zoning certificate within 30 days or shall notify the applicant in writing of his refusal of such certificate and the reasons therefor. Failure to notify the applicant in case of such refusal within 30 days shall entitle the applicant to file for rezoning or submit his application to the board of zoning adjustment.

§ 26-33 Nonconforming uses.

[Z.O., § 6.02; Ord. No. 1185, 4-15-2025]

The continuance of nonconforming uses or structures shall be subject to the following limitations:

Continuation. The use of any land or structure existing at the time of the enactment of this chapter or subsequent amendments thereto may be continued even though such use may not conform with the regulations of this chapter for the district in which it is located. With special permission of the planning commission and zoning board, any nonconforming use in existence at the time of the enactment of this chapter may continue as the use of right, exercising all privileges of this chapter pertaining to the use district in which it would normally be included, with the exception of all of the provisions in Subsection (a)(3) of this section.

Restoration. A structure that is devoted to a nonconforming use which is destroyed or damaged in any manner or from any cause whatsoever, to the extent that the cost of restoration to the condition it was before the occurrence shall exceed 50% of the cost of reconstructing the entire structure, shall not be restored unless:

Such structure when restored shall comply with all provisions of this chapter; or

Special permission of the planning commission is granted to restore it to its original nonconforming use.

Abandonment. Whenever a nonconforming use has been discontinued for a period of one year, such use shall not thereafter be reestablished without special permission of the planning commission, or otherwise any subsequent use shall be in conformity with the provisions of this chapter.

Substitution. If no structural alterations are made, a nonconforming use of a building may be changed to another nonconforming use of the same or of a more restricted classification. Whenever a nonconforming use has been changed to a more restricted use or to a conforming use, such use shall not thereafter be changed to a less restrictive use.

§ 26-34 Amendment of regulations, districts.

[Z.O., §§ 9.01 — 9.06; Ord. No. 1140, 6-1-2021]

Council may amend ordinance. Whenever the public necessity, convenience, general welfare or good zoning practice require, the City Council may by ordinance, after recommendation thereon by the City planning commission and subject to the procedure provided in this section, amend, supplement or change the regulations, district boundaries or classifications or property, now or hereafter established by this chapter or amendments thereof. It shall be the duty of the planning commission to submit its recommendations regarding all applications or proposals for amendments or supplements. An amendment, supplement, reclassification or change may be initiated by the commission on its own motion or by a verified application of one or more of the owners or lessees of property within the area proposed to be changed or affected by this chapter.

Procedure for change. Applications for any change of district boundaries or classifications or property as shown on the zoning map, and for regulation amendments, shall be submitted to the planning commission, at its public office, upon such forms, and all shall be accompanied by such data and information, as may be prescribed for that purpose by the commission, so as to assure the fullest practicable presentation of facts for the permanent record. Such data shall include in any event a plat or map drawn to a scale of not less than 200 feet to the inch showing the land in question, its location, the length and location of each boundary thereof, and the location of properties within 300 feet of such land. Each such application shall be verified by at least one of the owners or lessees of property within the area proposed to be reclassified, attesting to the truth and correctness of all facts and information presented with the application. Applications for amendments or district changes initiated by the commission itself shall be accompanied by its own motion pertaining to such proposed amendment.

List of property owners. Any person or persons desiring a change in the zoning classification of property shall file with the application for such change a statement giving the names and addresses of the owners of all properties lying within 185 feet of any part of the exterior boundaries of the premises the zoning classification of which is proposed to be changed.

Commission hearing, notice. Before submitting its recommendations to the City Council, the planning commission shall hold at least one public hearing thereon, notice of which shall be given by one publication in a newspaper of general circulation in the City at least 15 days before the date of such hearing.

Commission recommendations. The commission may recommend that the application be granted as requested, or it may recommend a modification of the zoning amendment requested in the application, or it may recommend that the application be denied. These recommendations shall then be certified to the Council. If a recommendation has not been rendered with 60 days of the commission public hearing, the recommendation will be considered as a negative recommendation, or denial of the application and such recommendation will proceed to the Council automatically without written notice.

Council hearing. After receiving from the commission the certification of the recommendations on the proposed amendment of supplement, and before adoption of such amendment, the Council shall hold a public hearing thereon, at least 15 days' notice of the time and place of which shall be given by publication in a newspaper of general circulation in the City.

Council final action. Following such hearing and after reviewing the recommendations of the commission thereon, the Council shall consider such recommendations and vote on the passage of the proposed amendment to the test of the ordinance or the zoning map.

Map change pending; zoning certificate, building permit. Whenever the Council has taken under advisement a change or amendment of the zoning map from a less restricted district to a more restricted district classification, as evidenced by resolution of record, no zoning certificate or building permit shall be issued within 60 days from the date of such resolution which would authorize the construction of a building or the establishment of a use which would become nonconforming under the contemplated redistricting plan.

Fees. The fee for a zoning amendment, except those initiated by the commission, shall be $25 unless determined by the commission that a sum in excess of this amount is required to cover the costs of publishing, posting and/or mailing notices of hearings.

§ 26-51 Composition; appointment; compensation; vacancies.

[Ord. No. 1052, § 1, 1-16-2018[1]]

A zoning board of adjustment as constituted at the time of enactment of this chapter shall continue in power. The board shall consist of five residents of Butler appointed by the Mayor, with consent of the City Council, for terms of five years, except that of those first appointed shall serve respectively, one shall serve for one year, one for two years, one for three years, one for four years, and one for five years. Three alternate members may be appointed to serve in the absence of or the disqualification of the regular members. Vacancies shall be filled in the same manner for the unexpired term. Members of the board shall serve without compensation and each member shall serve until his successor is appointed and qualified. All members and alternates of the board shall be removable for cause by the appointing authority upon written charges and after public hearings by the City Council.

Editor's Note: This ordinance also repealed former Div. 2, which pertained to similar subject matter and derived from Z.O., §§ 10.02.01 — 10.02.04, 10.03, 10.04.02.01 — 10.04.02.03, 10.04.03 — 10.04.05, as amended.

§ 26-52 Organization; rules; meetings; records.

[Ord. No. 1052, § 1, 1-16-2018]

The board shall organize and elect a chairman who shall serve for a term of one year. The board shall then adopt rules for its own government in accordance with this chapter. Meetings shall be held at the call of the chairman and at such times as the board deems advisable. Four members of the board shall constitute a quorum. The chairman, or in his absence the acting chairman, may administer oaths and may compel the attendance of witnesses. All meetings of the board shall be open to the public. The secretary shall keep minutes of the proceedings, indicating the vote of each member on each question, or if absent or failing to vote, indicating such fact. The secretary shall also keep records of the board's examinations and other official actions, all of which are to be immediately filed in the office of the board and shall be a public record. The secretary shall conduct all official correspondence and supervise the clerical work of the board. All testimony, objections thereto and rulings thereon, shall be taken down by a reporter employed by the board for that purpose.

§ 26-53 Powers.

[Ord. No. 1052, § 1, 1-16-2018]

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 §§ 26-51 to 26-62;

To hear and decide all matters referred to it or upon which it is required to pass under these sections;

In passing upon appeals, where there are practical difficulties or unnecessary hardship in the way of carrying out the strict letter of such ordinance, to vary or modify the application of any of the regulations or provisions of such ordinance relating to the construction or alteration of buildings or structures or the use of land so that the spirit of the ordinance shall be observed, public safety and welfare secured and substantial justice done.

In exercising the above-mentioned powers, the board may, in conformity with the provisions of §§ 26-51 to 26-62, reverse or affirm wholly or partly, 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 all the powers of the officer from whom the appeal is taken. The concurring vote of four members of the board shall be necessary to reverse any order, requirement, decision or determination of any such administrative official, or to decide in favor of the applicant on any matter upon which it is required to pass under any such ordinance or to effect any variation in such ordinance.

§ 26-54 Applications; appeals, hearings and stays.

[Ord. No. 1052, § 1, 1-16-2018]

Applications for variance, when and by whom taken. An application for variance, in cases in which the board has original jurisdiction under the provisions of this chapter, may be made by any person, by any neighborhood organization representing such person, or by a governmental officer, department, board or bureau. Such applications shall be filed with the zoning inspector who shall transmit the same to the secretary of the board.

Report on application for variance. The application for variance shall be investigated by a member of the City staff and a report thereon, together with recommendations, shall be submitted to the board.

Appeals, when and by whom taken. An appeal to the board may be taken by any person aggrieved or by any officer, department, board or bureau of the City affected by any decision of the zoning inspector. Such appeal shall be taken within 20 days, by filing with the zoning inspector and with the board, a notice of appeal specifying the grounds thereof. The zoning inspector shall forthwith transmit to the board all the papers constituting the record upon which the appeal is taken.

Secretary's report on appeals. The secretary shall investigate the appeal and submit a report thereon, together with his recommendations, to the board.

Hearings. The board shall fix a reasonable time for the hearing of the application or appeal and shall give written notice of the hearing to the parties in interest, including all property owners within 200 feet of the property in question at least 15 days prior to the hearing. Each application or appeal shall be accompanied by a check, payable to the City, or a cash payment of $75. At the hearing, any party may appear in person or be represented by agent or attorney.

Decisions of board.

The board shall decide all applications and appeals within 30 days after the date of notice of the required hearing thereof, unless otherwise extended by the parties.

A certified copy of the board's decision shall be transmitted to the applicant or appellant, and to the zoning inspector. Such decision shall be binding upon the zoning inspector and observed by him, and he shall incorporate the terms and conditions of the same in the permit to the applicant or appellant, whenever a permit is authorized by the board.

A decision of the board shall not become final until the expiration of five days from the date such decision is made, unless the board shall find the immediate taking effect of such decision is necessary for the preservation of property or personal rights and shall so certify on the record.

Appeal from decisions of board. Any person or persons, jointly or severally aggrieved by any decision of the board of adjustment, or any officer, department, board or bureau of the City may present to the circuit court of the county a petition, duly verified, setting forth that such decision is illegal, in whole or in part, specifying the grounds of the illegality. Such petition shall be presented to the court within 30 days after the filing of the decision in the office of the board of adjustment. Any such case shall be heard and determined by the court without a jury.

Stay of proceedings. An appeal shall stay all proceedings in furtherance of the action appealed from, unless the zoning inspector certifies to the board after notice of appeal has been filed with him, that by reasons of acts stated in the certificate a stay would, in his opinion, cause imminent 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 or by the circuit court of the county on application, or notice to the zoning inspector, or by judicial proceedings, and on due cause shown.

§ 26-55 Variances.

[Ord. No. 1052, § 1, 1-16-2018]

Variances where literal enforcement would create unnecessary hardship. The board shall have the power to authorize upon appeal in specific cases, filed as hereinbefore provided, such variances from the terms, provisions or requirements of this chapter as will not be contrary to the public interest; provided, however, that such variances shall be granted only in such cases where, owing to special and unusual conditions pertaining to a specific piece of property, the literal enforcement of the provisions or requirements of this chapter would result in practical difficulty or unnecessary hardship, so that the spirit of the chapter shall be upheld, public safety and welfare secured and substantial justice done.

Findings of the board. No such variance of the provisions or requirements of this chapter shall be authorized by the board unless the board finds, beyond reasonable doubt that all the following facts and conditions exist:

Exceptional circumstances: That there are exceptional or extraordinary circumstances or conditions applying to the property in question or to the intended use of the property, that do not apply generally to other properties or classes of uses in the same zoning district.

Preservation of property rights: That such variance is necessary for the preservation and enjoyment of substantial property rights possessed by other properties in the same zoning district and in the same vicinity.

Absence of detriment: That the authorizing of such variance will not be of substantial detriment to adjacent property, and will not materially impair the purposes of this chapter or the public interest.

Not of general nature: No grant of a variance shall be authorized unless the board specifically finds that the condition or situation of the specific piece of property, or the intended use of said property, for which variance is sought is not of so general or recurrent a nature as to make reasonably practicable the formulation of a general regulation for such conditions or situation.

Board may reverse orders, etc. In exercising its power, the board may, in conformity with the provisions of statute and of this chapter, reverse or affirm, wholly or partly, 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 all powers of the office from whom the appeal is taken.