There is created a board of adjustment which shall consist of seven members to be appointed by the chief executive and confirmed by the council of commissioners. All members of the board must reside within the jurisdictional boundaries of the Butte-Silver Bow city-county planning board and at least two of the members shall be resident freeholders of Butte-Silver Bow. The term of each member shall be three years, and they may be removed for cause by a two-thirds majority of the confirming authority upon written charges and after public hearing. Vacancies on the board shall be filled for the unexpired term of any member whose term becomes vacant in the same manner as members are originally appointed and confirmed.

(Ord. 304 § 1, 1987: Ord. 53 § 260-1, 1978)

The board shall adopt rules to govern its proceedings which rules may not be inconsistent with this title or the laws of the state of Montana. Meetings of the board shall be held at the call of the chairman and at such other times as the board may determine. Such chairman, or in his absence the acting chairman, 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 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.

(Ord. 53 § 260-2, 1978)

Appeals to the board may be taken by any person aggrieved or by any officer, department, board or bureau of the municipality effected by any decision of the enforcing officer. Such appeal shall be taken within a reasonable time, as provided by the rules of the board, by filing with the officer from whom the appeal is taken and with the board a notice of appeal specifying the grounds thereof. The officer from whom the appeal is taken shall forthwith transmit to the board all papers constituting the record upon which the action appealed was taken.

(Ord. 53 § 260-3, 1978)

An appeal shall stay all proceedings in furtherance of the action appealed from unless the officer from whom the appeal is taken certifies to the board of adjustment after the notice of appeal shall have been filed with him that by reason of facts stated in the certificate of 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 of adjustment or by a court of record on application, on notice to the officer from whom the appeal is taken, and on due cause shown.

(Ord. 225 § 1(A), 1985: Ord. 53 § 260-4, 1978)

The board shall fix a reasonable time for the hearing of the appeal. The board shall further publish the request for a variance in a newspaper of general circulation in Butte-Silver Bow, and shall direct that a sign be placed in front of the structure or premises for which the variance is requested. Upon the hearing any party may appear in person or by attorney.

(Ord. 53 § 260-5, 1978)

The board shall have the following powers:

A.

To hear and decide appeals where it is alleged there is error in any order, requirement, decision, or determination made by the enforcing officer in the enforcement of this chapter of this title;

B.

To hear and decide special exceptions to the terms of this title upon which such board is required to pass under such ordinance;

C.

To authorize upon appeal in specific cases such variance from the terms of this title as will not be contrary to the public interest, where, owing to special conditions, a literal enforcement of the provisions of the title will result in unnecessary hardship, and so that the spirit of this title shall be observed and substantial justice done;

D.

In exercising the abovementioned powers, such board may, in conformity with the provisions of this title, reverse or affirm, wholly or partly, or 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.

(Ord. 53 § 260-6, 1978)

The concurring vote of four members of the board shall be necessary to reverse any order, requirement, decision or determination of the enforcing officer, or to decide in favor of the applicant on any matter upon which it is required to pass under this title, or to effect any variation in this title.

(Ord. 53 § 260-7, 1978)

Any person or persons, jointly or severally, aggrieved by any decision of the board, or any taxpayer, or any officer, department, board or bureau of the local government, may present to the district court 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 district court within thirty days after the filing of the decision in the office of the board.

(Ord. 137 § 1 (part), 1981; Ord. 53 § 260-8, 1978)

Upon the presentation of such petition, the court may allow a writ of certiorari directed to the board to review such decision of the board and shall prescribe therein the time within which a return thereto must be made and served upon the individual's attorney, which shall not be less than ten days and may be extended by the court. The allowance of the writ shall not stay proceedings upon the decision appealed from, but the court may, on application, or notice to the board and on due cause shown, grant a restraining order.

(Ord. 07-5 § 2, 2007: Ord. 137 § 1 (part), 1981; Ord. 53 § 260-9, 1978)

The board shall not be required to return the original papers acted upon by it, but it shall be sufficient to return certified or sworn copies thereof or of such portions thereof as may be called for by such writ. The return shall concisely set forth such other facts as may be pertinent and material to show the grounds of the decision appealed from and shall be verified.

(Ord. 137 § 1 (part), 1981; Ord. 53 § 260-10, 1978)

If, upon the hearing, it appears to the court that testimony is necessary for the proper disposition of the matter, it may take evidence or appoint a referee to take such evidence as it may direct and report the same to the court with his findings of fact and conclusions of law, which shall constitute a part of the proceedings upon which the determination of the court shall be made. The court may reverse or affirm, wholly or partly, or may modify the decision brought up for review.

(Ord. 53 § 260-11, 1978)

Costs shall not be allowed against the board unless it shall appear to the court that it acted with gross negligency, or in bad faith, or with malice in making the decision appealed from.

(Ord. 58 § 260-12, 1978)