A Board of Adjustment is hereby established which shall consist of five members. The terms of office of the members of the Board of Adjustment and the manner of their appointment shall be as provided by State law and the Board of Adjustment procedure manual.

   It shall be the purpose of the Board of Adjustment:

   1.   To hear and decide appeals where it is alleged there is error in any order, requirement, decision, or determination made by the Community Development Department in the enforcement of this chapter;

   2.   To hear and decide only such other special use permits and variances as the Board of Adjustment is specifically authorized to pass on by the terms of this chapter;

   3.   To decide such questions as are involved in determining whether special use permits or variances should be granted; and

   4.   To grant special use permits or variances with such conditions and safeguards as are appropriate under this chapter, or to deny special use permits and variances when not in harmony with the purpose and intent of this chapter.

   1.   Meetings. Meetings of the Board of Adjustment shall be held at the call of the chairperson, and at such other times as the Board of Adjustment may determine.

   2.   Duties Generally; Open Meetings; Quorum. Such chairperson or, in the absence of the chairperson, the acting chairperson, may administer oaths and compel the attendance of witnesses. All meetings of the Board of Adjustment and hearings shall be open to the public. 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 examinations and other official actions all of which shall be immediately filed in the Community Development Department and shall be a public record. The presence of three members shall be necessary to constitute a quorum.

   Appeals to the Board of Adjustment may be taken by a person aggrieved or by any official, department, and board of the City affected by any decision of the Community Development Department. Such appeal shall be taken within 10 days by filing application request on forms provided by the Community Development Department. Additionally, the application must be accompanied with the appropriate fees in an amount determined by resolution of the Council from time to time. An appeal stays all proceedings in furtherance of the action appealed from, unless the Community Development Department certifies to the Board of Adjustment after notice of appeal shall have been filed that, by reason of facts stated in the certificate, a stay would, in the opinion of the Department cause imminent peril to life or property. In such case, proceedings shall not be stayed other than by a restraining order which may be granted by the Board of Adjustment or by a court of record on application, on due cause shown.

   After the Community Development Department has set the Board of Adjustment meeting date, surrounding property owners within 310 feet, exclusive of intervening right-of-way, shall be notified. Notice shall be sent not less than seven days and not more than 20 days before the Board of Adjustment meeting. The notice shall follow the format established by the Community Development Department and be sent by first class mail. Notice shall contain date, time, location, and subject of the Board of Adjustment meeting. The Community Development Department shall post at least one notification sign at least seven days and not more than 20 days prior to the Board of Adjustment meeting. At least one sign must be placed so that it may be seen from a public street, and in cases of through lots and or corner lots, a sign may be posted at both frontages.

   1.   Review; Board Determination. The Board of Adjustment shall review, before issuing any special use permit, the conformity of the proposed building or use with the standards of the Comprehensive Plan and recognized principals of land use planning. The Board of Adjustment may approve the special use permit as submitted, or before approval, may require that the applicant modify, alter, adjust, or amend the proposal as the Board of Adjustment deems necessary to preserve the intent and purpose of this chapter in order to promote the health, safety, and general welfare of the community.

   2.   Site Plan Review; Amendment. Following approval of the special use permit, the Planning and Zoning Commission shall review a site plan/site plan amendment as required in Chapter 15 of this title.

   3.   Resubmission After Changes. In the event a special use permit is granted under the terms of this section, any changes thereafter in the approved use or site plan shall be resubmitted and considered in the same manner as the original proposal.

   4.   Conditions for Issuance of Permit. A special use permit shall not be granted by the Board unless and until:

      A.   A written application, on forms provided by the Community Development Department, is submitted indicating the section of this chapter under which the special exception is sought and stating the grounds on which it is requested.

      B.   Notice of public hearing shall be given at least seven and not more than 20 days in advance of public hearing. Notice of public hearing shall occur in the same manner as required by law for variances.

      C.   The Board shall look specifically upon the following criteria in granting or denying a special use permit, plus any additional criteria the Board finds necessary to protect the public health, safety, and general welfare in accordance with the intent of this chapter:

         (1)   That the proposed location, design, construction, and operation of the particular use adequately safeguards the health, safety, and general welfare of persons residing or working in adjoining or surrounding property;

         (2)   That such use shall not impair an adequate supply of light and air to surrounding property;

         (3)   That such use shall not unduly increase congestion in the streets or public danger of fire and safety;

         (4)   That such use shall not diminish or impair established property values in adjoining or surrounding property; and

         (5)   That such use will not unduly burden public utilities.

      D.   Conditions and Safeguards. In granting any special use permit, 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 special use permit is granted, shall be deemed a violation of this chapter and punishable under Section 11-1-7 of this title.

      E.   Growth Plan for Elementary and Secondary Schools. In granting a Special Use Permit related to elementary and secondary schools, a growth plan forecasting the student, staff, and facility needs over an approximately 10-year period shall be provided.

   1.   Variance Related to Use.

      A.   Application Requirements. Application for variance from the terms of this chapter 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, and so that the spirit of this chapter shall be observed and substantial justice done. No nonconforming use of neighboring lands, structures, or buildings in other districts shall be considered grounds for the issuance of a variance.

      B.   Conditions for Granting. Variances related to use shall only be granted upon:

         (1)   A showing of good and sufficient cause; and

         (2)   A determination that failure to grant the variance would result in a substantial hardship to the applicant; and

         (3)   A determination that the substantial hardship is not self-imposed; and

         (4)   A determination that the granting of the variance will not be contrary to the public interest or the neighborhood integrity; and

         (5)   A determination that the granting of a variance is the minimum necessary to afford relief from this chapter while preserving the spirit of the zoning ordinance.

   2.   Variance Related to Dimensional Requirements.

      A.   Application Requirements. Application for variance from the terms of this chapter with respect to the area, dimensional, or other numerical limitations, 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 practical difficulties to the property owner in making a beneficial use of the property allowed by the zoning ordinance, and so that the spirit of this chapter shall be observed and substantial justice done. No nonconforming use of neighboring lands, structures, or buildings in other districts shall be considered grounds for the issuance of a variance.

      B.   Conditions for Granting. Variances related to dimensional requirements shall only be granted upon:

         (1)   A showing of good and sufficient cause; and

         (2)   A determination that failure to grant the variance would result in practical difficulties to the applicant; and

         (3)   A determination that the practical difficulties faced are unique to the property; and

         (4)   A determination that the practical difficulties faced are not self-imposed; and

         (5)   A determination that the practical difficulties cannot be alleviated by a feasible method other than a variance; and

         (6)   A determination that the granting of a variance will not significantly alter the essential character of the surrounding neighborhood.

   3.   Resubmittal After Changes. In the event a variance is granted under the terms of this chapter, any changes thereafter in the approved use or site plan shall be resubmitted and considered in the same manner as the original proposal. Before granting a variance, the Board of Adjustment shall make findings that the applicant has met the requirements of this chapter, and the Board of Adjustment shall further find that the reasons set forth in the application justify the granting of variance. The burden shall be upon those seeking the variance to establish their entitlement to the requested variance.

   4.   Conditions and Safeguards. 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 Section 11-1-7 of this title.

   The Board shall review appeals where it is alleged there is an error in any order, requirement, decision, or determination made by the Community Development Director in the administration and enforcement of this chapter.

   1.   Authority of Board. In exercising the above mentioned powers, the Board of Adjustment may, so long as such action is in conformity with the terms 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 powers of the Community Development Department from whom the appeal is taken.

   2.   Vote of Members. The concurring vote of three members of the Board of Adjustment shall be necessary to reverse any order requirement, decision, or determination of Community Development Department, or to decide in favor of the applicant on any matter upon which it is required to pass under this chapter, or to grant any special use permit or variance.

   3.   Written Testimony or Evidence. Every decision granted or denied by the Board of Adjustment shall be supported by a written testimony or evidence submitted in connection therewith.

   4.   Denial of Application. If any application has been denied by the Board of Adjustment, then no new application for the same relief shall be considered by the Board of Adjustment unless the Board shall find conditions have changed.

   5.   Council Review. Any decision made by the Board of Adjustment shall not be deemed effective until reviewed and accepted by the Council, at the next regularly scheduled meeting, no more than 20 days from the date of such deciding vote.

   The Council, may, at its discretion, review any affirmative decision of the Board of Adjustment at any time before the effective date of the decision. After such review, but prior to the effective date of the variance, the Council may remand any such decision to the Board of Adjustment for further review. Upon remand, the Board of Adjustment may reconsider its decision and issue its final decision on the request within 30 days after the date of such remand.

   Any person or persons, any officer, department, or board of the City severally aggrieved by any decision of the Board of Adjustment may present to a court of record, 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. The court may reverse or affirm, wholly or in part, or may modify the decision brought up for review.

   All special use permits and variances shall expire and terminate 90 days after the date of the granting of such special use permit or variance unless a building permit has been issued for the construction authorized by such special use permit or variance, or if no construction is authorized, then unless a certificate of zoning compliance has been issued for such authorized use. The Board of Adjustment may, upon written request of the affected person, extend the time for the issuance of a building permit or certificate of zoning compliance for 60 days. In the event the building permit for the construction so authorized is canceled, such special use permit or variance shall thereupon expire and terminate.