There is created within and for the city a board of adjustment with the powers and duties as hereinafter set forth.

(Code 2012, § 16-8-1)

(a)

The board of adjustment shall be composed of five members, citizens of the city, each appointed by the mayor with the approval of the city council for a term of three years; provided, however, that for the first appointment under the provisions of this article one member shall be appointed for a term of one year; two members shall be appointed for a term of two years; and two members shall be appointed for a term of three years. All appointments thereafter shall be for a term of three years.

(b)

No less than two members shall be appointed from the membership of the planning commission.

(c)

The board shall elect a chairman from its membership to serve for a term of one year.

(Code 2012, § 16-8-2; Ord. No. 1756, 11-14-1985)

(a)

The board shall adopt rules in accordance with the provisions of this article.

(b)

Meetings of the board shall be held at the call of the chairman and at such other times as the board may determine.

(c)

The chairperson, or in his absence the acting chairperson, may administer oaths and compel the attendance of witnesses.

(d)

All meetings of the board shall be open to the public.

(e)

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 city clerk and shall be a public record.

(f)

The concurring vote of three members of the board shall be necessary to reverse any order, requirements, decision, or determination of any administrative official, or to decide on any matter upon which it is required to act under any such ordinance, or to effect any variation in such ordinance.

(Code 2012, § 16-8-3; Ord. No. 90-7, 3-22-1990)

(a)

Appeals to the board of adjustment may be taken by any person aggrieved or by any officer, department, board, or bureau of the city affected by any decision of the building inspector. Such appeal shall be taken within 30 days from the date of the decision by filing with the officer from whom the appeal is taken and with the city clerk a notice of appeal specifying the grounds thereof, and by paying a filing fee as established in the fee schedule at the office of the city clerk at the time the notice is filed.

(b)

The officer from whom the appeal is taken shall forthwith transmit to the board all the papers constituting the record upon which the action appealed from was taken.

(c)

An appeal stays 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 a stay would, in his opinion, cause imminent peril of life or property.

(d)

In such cases, 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 and notice to the officer from whom the appeal is taken and on the cause shown.

(e)

The board of adjustment shall fix a reasonable time for the hearing of the appeal, giving pubic notice thereof, as well as due notice to the parties in interest, and decide the same within a reasonable time. Upon the hearing, any party may appear in person or by agency or by attorney.

(Code 2012, § 16-8-4)

The board of adjustment shall have the following powers:

(1)

Alleged error. To hear and decide appeals where it is alleged there is an error in any order, requirement, decision, or determination made by an administrative official in the enforcement of this article.

(2)

Powers relative to variations. Where, by reason of exceptional narrowness, shallowness, or shape of a specific piece of property at the time of the original adoption of the regulations, or by reason of exceptional situation or condition of a specific piece of property, which condition is not generally prevalent in the neighborhood, the strict application of this article would result in peculiar and exceptional practical difficulties to or exceptional and undue hardship upon the owner of such property, the board is empowered to authorize upon an appeal relating to such property, a variation from such strict application so as to relieve such difficulties or hardship.

(3)

Powers relative to exceptions. Upon appeal, the board is empowered to permit the following exceptions:

a.

To permit the extension of a district where the boundary line of a district divides a lot in single ownership as shown of record.

b.

To permit the reconstruction of a nonconforming building which has been destroyed, or partially destroyed, by fire or act of God where the board shall find some compelling public necessity requiring a continuance of the nonconforming use, but in no case shall such a permit be issued if its primary function is to continue a monopoly.

c.

To interpret the provisions of this chapter where the street layout actually on the ground varies from the street layout as shown on the map fixing the several districts.

d.

To grant exceptions to the off-street parking requirements when it is determined that the size and shape of the lot to be built on is such that off-street parking provisions could not be complied with, and that the proposed use of land is similar in nature to adjacent land uses, and that the proposed use will not create undue traffic congestion in the adjacent streets.

e.

To permit uses specifically identified in various zoning districts as uses permitted as zoning special exceptions.

(Code 2012, § 16-8-5)

(a)

In exercising the powers mentioned in section 54-160, such board may, in conformance with the provisions of this article, reverse or affirm, wholly or partly, or may modify the order, requirement, decisions, 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.

(b)

In considering all appeals from rulings made under this article, the board shall, in making its findings on any specific case, determine the effect of the proposed change upon the supply of light and air to adjacent property, upon the congestion in the public streets, upon the public safety from fire and other hazards, upon the established property values within the surrounding area, and upon other factors relating to the public health, safety, comfort, morals and general welfare of the city.

(c)

Every ruling made upon any appeal to the board shall be accompanied by a written finding of fact based upon the testimony received at the hearing afforded by the board, and shall specify the reason for granting or denying the appeal.

(Code 2012, § 16-8-6)

(a)

An application shall be filed with the city planning office for review. At the time of application, a fee to be established by mayor and council shall be paid to the city clerk. The application shall be a form provided by the city and shall show the location and intended use of the site, the names of all the property owners within 300 feet, and any other material pertinent to the request which the board of adjustment may require.

(b)

The board of adjustment may hold one or more public hearings thereon. A minimum public notice shall be furnished ten days prior to the public hearing date to all property owners within a 300-foot radius of the exterior boundary of the property. The ownership list shall be provided by a certified abstractor. A minimum of ten days' public notice shall be published in the official newspaper of general circulation in the city.

(c)

The board of adjustment shall, within 45 days of the date of first consideration of the application by the commission, render a decision on the application.

(Code 2012, § 16-8-7)

Certain uses listed in various districts as "uses permitted as zoning special exceptions" shall be reviewed and passed on or rejected under the following procedure:

(1)

An application shall be filed with the city planning office for review. At the time of application, a fee to be established by mayor and council shall be paid to the city clerk. The application shall be on a form provided by the city and shall show the location of the intended use on the site. It shall be the responsibility of the applicant to provide the city with an abstractor's list of all property owners within 300 feet of the location of the proposed activity.

(2)

The board of adjustment may hold one or more public hearings thereon. A minimum public notice shall be furnished ten days prior to the public hearing date to all property owners appearing on the abstractor's list. The applicant shall provide proof of mailing to all property owners appearing on the abstractor's list or may obtain signatures of all property owners appearing on the abstractor's list or any combination of the two to ensure proper notice has been provided. A minimum of ten days' public notice shall be published in the official newspaper of general circulation in the city.

(3)

The board of adjustment shall within 45 days of the date of first consideration of the application by the board' render a decision on the application.

(4)

Zoning special exception permits, if not undertaken within 30 days or if permitted activity is discontinued for 30 days, shall become null and void.

(Code 2012, § 16-8-8; Ord. No. 94-18, 12-5-1994)

(a)

An appeal from any action, decision, ruling, judgment or order of the board of adjustment may be taken by any person or persons, jointly or severally, or any taxpayer, or any officer, department, board or bureau of the municipality to the district court by filing a notice of appeal with the city clerk and with the board of adjustment within ten days from the filing of the decision of the board, where notice shall specify the grounds of such appeal.

(b)

Upon filing the notice of appeal as herein provided, the board shall forthwith transmit to the court clerk of the county, the original or certified copy of all the papers constituting the record in the case, together with the order, decision, or ruling of the board.

(c)

An appeal to the district court from the board of adjustment stays all proceedings in furtherance of the action appealed from, unless the chairman of the board of adjustment, from which the appeal is taken, certifies to the court clerk, after the notice of appeal shall have been filed, that by reason of facts stated in the certificate a stay would in his opinion cause imminent peril to life or property.

(d)

In such case, proceedings shall not be stayed otherwise than by a restraining order, which may be granted by the district court upon application or notice to the administrative officer in charge of the enforcement of the terms and provisions of this chapter, and upon notice to the chairperson of the board of adjustment for which the appeal is taken, and upon due cause being shown, the court may reverse or affirm, wholly or partly, or modify the decision brought up for review.

(Code 2012, § 16-8-9)

Any variance granted by the board of adjustment pursuant to the procedures set forth in the provisions of this article shall be utilized within two years from the date on which the board of adjustment renders its decision approving the application for the variance. For purposes of this section, the term "utilize" shall mean to rely on the variance granted by the board of adjustment through the beginning of construction on an improvement allowed by the variance or to make such use of the property subject to the variance as is permitted as a result of the variance. In the event a variance granted by the board of adjustment is not utilized within the two-year time frame set out herein, the variance will lapse and be of no force or effect. The permissible use of the property, which was subject to such variance, will revert to its permitted use prior to the variance being granted.

(Code 2012, § 16-8-10; Ord. No. 2000-07, 2-21-2000)