A Board of Zoning Appeals in and for the City has been established in accordance with the provisions of Chapter 266 of these Codified Ordinances.

(Ord. 277. Passed 9-23-96.)

(EDITOR'S NOTE: Section 1244.02 was repealed by Ordinance 277, passed September 23, 1996.)

The Board of Zoning Appeals shall adopt rules of procedure or bylaws which will provide specific guidelines and rules of conduct to be followed by the members of the Board. These rules shall be available for public inspection at the office of the City Clerk. These rules shall include the following required items and other items as deemed appropriate by the Board:

(a)

Meetings shall be held regularly according to such rules at a fixed place and open to the public.

(b)

The presence of three members shall constitute a quorum.

(c)

It shall take a concurring vote of a majority of the Board (three members) to reverse an order or decision of the Planning Director, Planning Commission or any other official to whom authority is granted by this Zoning Code or to grant a non-use variance from the provisions hereof, or to decide on any matter upon which it is required to pass by this Zoning Code, excluding the granting of use variances.

(d)

It shall take a concurring vote of a two-thirds majority of the Board (four members) to grant a use variance from the provisions of this Zoning Code.

(e)

A record of the proceedings of each meeting shall be kept by the Board of Zoning Appeals relating evidence presented by the applicant, the resolution by the Board of Zoning Appeals, the vote of each member on each question, or if absent or failing to vote, an indication of such fact. This shall be a public record and immediately filed in the office of the City Clerk.

(f)

The Board of Zoning Appeals shall receive reasonable assistance from other City departments in carrying out its functions.

(Ord. 195. Passed 4-9-90; Ord. 277. Passed 9-23-96.)

The Board of Zoning Appeals shall have the following powers:

(a)

To hear and decide on all matters referred to it upon which it is required to act under this Zoning Code.

(b)

To interpret this Zoning Code and the official Zoning Map and all related matters whenever a question arises in the administration of this Zoning Code as to the meaning and intent of any of its provisions or parts.

(c)

To hear and decide administrative appeals.

(d)

To hear and decide non-use variance requests.

(e)

To hear and decide use variance requests.

(Ord. 195. Passed 4-9-90.)

The Board of Zoning Appeals shall hear and decide administrative appeals from, and review any order, requirements, decision, or determination made by, the Planning Director or Planning Commission in the carrying out or enforcement of the provisions of this Zoning Code. In hearing and deciding administrative appeals, the Board of Zoning Appeals shall observe the general purpose and intent of this Zoning Code.

(Ord. 195. Passed 4-9-90.)

The Board of Zoning Appeals shall have the power to grant variances to vary or modify any of the rules, regulations, or provisions of this Zoning Code, if there are practical difficulties or unnecessary hardship in the way of carrying out the strict letter of this Zoning Code relating to the construction of, or structural changes in, equipment, or alterations of buildings or structures, or the use of land, buildings, or structures, so that the spirit of this Zoning Code shall be observed, public safety secured, and substantial justice done.

(Ord. 195. Passed 4-9-90.)

(a)

All petitions for administrative appeals and variance requests shall be in writing, signed and filed in triplicate with the City Clerk.

(b)

All petitions for administrative appeals and variances shall contain the following, when applicable, as determined by the Planning Director:

(1)

The name and address of the petitioner, who shall have a legal or equitable interest in the land subject to the petition;

(2)

The name, address and interest of every other person having a legal or equitable interest in the land subject to the petition;

(3)

The street address and legal description of the property subject to the variance request;

(4)

An adequate description of the administrative appeal or variance request;

(5)

The present and proposed use of the property; and

(6)

A preliminary site plan in accordance with Chapter 1284 of this Zoning Code, if otherwise required by this Zoning Code or if desired by the appellant or applicant, or a scale diagram or diagrams showing the property subject to the variance request with all public and private rights-of-way and easements; location, dimensions, and use of existing and proposed structures; watercourses; curb cuts; and uses, lots, and parcels of land within 300 feet of the property proposed for a rezoning. This diagram shall be drawn to a scale of 100 feet to the inch.

(c)

Upon examination and approval of the application as to form, the City Clerk shall transmit the application to the Board of Zoning Appeals, which shall process the petition as provided in this Zoning Code.

(Ord. 195. Passed 4-9-90.)

An administrative appeal or variance request shall be processed as follows:

(a)

The applicant shall meet with the Planning Director to discuss the desired action to be taken. The Planning Director shall make a written determination if an administrative appeal, non-use variance, or use variance is required and supply an application if needed. An administrative appeal must be filed within thirty days after the order, requirement, decision, or determination being appealed is made.

(b)

The applicant shall complete the application and submit it to the City Clerk along with the application fee and Planning Director's written determination. The application shall not be processed until the fee is paid in full. The fee shall be determined by City Council as part of an overall zoning administration fee schedule, and shall be established at an amount which shall cover the costs of the review process.

(c)

The City Clerk shall verify the property's parcel number(s) and legal description(s).

(d)

The City Clerk shall contact the Board of Zoning Appeals Chairperson to determine a date for public hearing.

(e)

The City Clerk shall mail notice of the public hearing by first class mail to the applicant and owners of property within 300 feet of the property in question, and to the occupants of all dwellings within 300 feet. Such notice shall be given not less than fifteen days and not more than thirty days before the date of the hearing. The City Clerk shall also notify the Planning Director, Planning Commission Chairperson, City Assessor, and Board of Zoning Appeals members.

(f)

The City Clerk shall publish a notice of the public hearing in one newspaper of general circulation in the City, not less than five days and not more than fifteen days before the date of the hearing.

(g)

The notice shall contain the following information:

(1)

Name of applicant;

(2)

Legal and general description of the property;

(3)

A description of the administrative appeal, non-use variance, or use variance being requested; and

(4)

The date, time, and place of the public hearing and the time period within which written comments may be submitted.

(h)

At the public hearing, the Board of Zoning Appeals shall allow the public to present oral and written comments about the appeal. Public comments received shall be considered and evaluated.

(i)

The Board of Zoning Appeals may adjourn the hearing in order to permit the obtaining of additional information or to cause such further notice as it deems proper to be served upon such other property owners as it decides may be interested in such application or appeal. In the case of an adjourned hearing, persons previously notified and persons already heard need not be notified of the time of resumption of such hearing unless the Board of Zoning Appeals so decides.

(j)

The Board of Zoning Appeals shall either:

(1)

Grant the appeal or variance request wholly or partly; or

(2)

Grant the appeal or variance request wholly or partly with conditions attached; or

(3)

Deny the appeal or variance request.

(k)

After the appeal or variance request has been granted, two copies of the granted appeal or variance request and site plan shall be signed and dated by the City Clerk, one for the record and one to be submitted to the applicant. The City Clerk shall also notify the Planning Commission Chairperson, Board of Zoning Appeals Chairperson, Planning Director, Building Inspector, City Engineer, and City Assessor.

(Ord. 195. Passed 4-9-90; Ord. 461. Passed 4-28-14.)

(a)

In authorizing a variance, the Board of Zoning Appeals may, in addition to the review standards provided for in Section 1244.11, attach thereto such other conditions regarding the location, character, landscaping or treatment reasonably necessary to the furtherance of the intent and spirit of this Zoning Code and the protection of the public interest. Such conditions shall be attached to the variance in the same manner as site plan conditions pursuant to Chapter 1284.

(Ord. 195. Passed 4-9-90.)

(b)

No order of the Board of Zoning Appeals permitting the construction of a building shall be valid for longer than one year, unless a building permit for construction or alteration is obtained within such period and such construction or alteration is started and proceeds to completion in accordance with the terms of such permit.

(c)

No order of the Board permitting a use of a building or premises shall be valid for longer than one year unless such use is established within such period. However, where such use is dependent upon the construction or alteration of a building, such order shall continue in force if a building permit for construction or alteration is obtained within such period and such construction or alteration is started and proceeds to completion in accordance with the terms of such permit.

(Ord. 235. Passed 5-23-94.)

(a)

A majority vote of all of the members of the Board of Zoning Appeals, or three members, is required to grant an administrative appeal or non-use variance. A concurring two-thirds vote of all members of the Board of Zoning Appeals, or four members, shall be required to grant a use variance.

(b)

Any decision of the Board of Zoning Appeals shall be put in writing and contain a thorough explanation of its rationale. The written decision shall be submitted to the City Clerk within thirty days of the public hearing, excluding extenuating circumstances. The City Clerk shall notify the applicant and the Planning Director of the decision of the Board of Zoning Appeals within forty-five days of the public hearing. Such decision shall be binding upon the Planning Director, and the terms and conditions of the decision shall be incorporated into the permit to the applicant whenever a permit is authorized by the Board of Zoning Appeals.

(c)

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

(d)

The decision of the Board of Zoning Appeals is final and may not be appealed to any other City administrative body. A Board of Zoning Appeals decision may only be appealed to the Circuit Court.

(Ord. 195. Passed 4-9-90.)

(a)

No non-use variance from the provisions or requirements of this Zoning Code shall be authorized by the Board of Zoning Appeals unless it finds that the applicant has presented evidence that the following conditions apply:

(1)

Dimensional zoning requirements cannot be physically met by an existing lot due to narrowness, shallowness or irregular shape, or the topography or natural characteristics of the site inhibit the lawful location of a structure or its accessory (such as septic system, garage, shed).

(2)

The physical hardship is unique and is not shared by neighboring properties in the same zone. If the Board of Zoning Appeals finds that the hardship is not unique, but common, amending this Zoning Code or a rezoning should be pursued.

(3)

The practical difficulty was not created by an action of the applicant and either existed at the time of adoption of the requirement from which the variance is requested, or is necessary as the result of governmental action such as a road widening.

(4)

A variance would not be contrary with the intent and purpose of this Zoning Code.

(5)

A variance would not cause a substantially adverse affect upon adjacent properties.

(6)

A variance would relate only to the property under control of the applicant.

(7)

A variance would not essentially alter the character of the surrounding area.

(8)

A variance would not increase the hazard from fire, flood or similar dangers.

(9)

A variance would not increase traffic congestion.

(10)

The variance is the minimum necessary to permit reasonable use of the land and buildings.

(b)

No use variance from the provisions or requirements of this Zoning Code shall be authorized by the Board of Zoning Appeals unless an unnecessary hardship is shown; that there exist exceptional circumstances where the current zoning classification is clearly unreasonable; that the current zoning regulations provide the property owner with no reasonable use of his or her land; and, the Board of Zoning Appeals finds that the applicant has presented evidence that the following conditions apply:

(1)

The property in question cannot be put to a reasonable use if permitted to be used only under the conditions allowed by the regulations in the district in which it is located.

(2)

The unnecessary hardship of the regulation on the property in question is due to very unique circumstances.

(3)

A variance would not alter the essential character of the area or neighborhood.

(4)

The conditions upon which the application for a variance is based would not be applicable to other property within the same zoning classification.

(5)

The purpose of the use variance request is not based merely upon a desire to make more money out of the property.

(6)

The alleged hardship has not been created by any person presently having an interest in the property.

(7)

A variance would not be detrimental to the public welfare or injurious to other property or improvements in the neighborhood in which the property is located.

(8)

A variance would not impair an adequate supply of light and air to adjacent property, or substantially increase the congestion in public streets, or increase the danger of fire or endanger the public safety or substantially diminish or impair property values within the neighborhood.

(9)

The use variance is the minimum necessary to permit reasonable use of the land and buildings.

(c)

No nonconforming use of neighboring lands, structures or buildings shall, in itself, be considered grounds for the issuance of a variance.

(Ord. 195. Passed 4-9-90.)

An appeal shall stay all proceedings in furtherance of the action appealed from, unless the Planning Director certifies to the Board of Zoning Appeals, after notice of appeal has been filed with him or her, that, by reason of facts stated in this certificate, a stay would, by in his or her opinion, cause imminent peril to life or property. In such case, proceedings shall not be stayed otherwise than by restraining order, which may, on due cause shown, be granted by the Board or by the Circuit Court on application after notice to the Administrator.

(Ord. 195. Passed 4-9-90.)