1.   Board Created. A Board of Adjustment is established which shall consist of five members. A majority of the members of the Board shall be persons representing the public at large and shall not be involved in the business of purchasing or selling real estate. Members of the Board shall be appointed by the Council for a term of five years, excepting that when the Board shall first be created one member shall be appointed for a term of five years, one for a term of four years, one for a term of three years, one for a term of two years, and one for a term of one year. Vacancies shall be filled for the unexpired term of any member whose term becomes vacant. The Board shall elect its own chair and vice chair, each of whom shall serve for a term of one year.

2.   Meetings of the Board. The meetings of the Board of Adjustment shall be held at the call of the chair, and at such other times as the Board may determine. Such chair, or in his or her absence the vice chair, 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 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 with the Clerk and shall be a public record. The Board shall not carry out its business without having three members present.

3.   Appeals. Appeals to the Board of Adjustment may be taken by any person aggrieved, or by any officer, department, or board of the City affected by any decision of the Zoning Administrator. Such appeal shall be taken within ten days by filing with the Clerk the notice of appeal specifying the grounds thereof. The Clerk shall immediately provide a copy of the appeal to the Board, and the Zoning Administrator shall forthwith transmit to the Board all papers constituting the record upon which the action appealed from is taken. An appeal stays all proceedings in furtherance of the action appealed from, unless the Zoning Administrator certifies to the Board, after notice of appeal shall have been filed, that by reason of the facts stated in the certificate a stay would, in his or her 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 a court of record on application on notice to the Board and the Zoning Administrator, and on due cause shown. The Board shall fix a reasonable time for the hearing on the appeal, give public notice thereof as required by State law as well as due notice to the parties in interest, and decide the same within a reasonable time. At the hearing any party may appear in person or by agent, or by attorney.

4.   Jurisdiction and Powers. The Board of Adjustment shall have the following powers, and it shall be its duty:

   A.   To hear and decide appeals where it is alleged there is error in any order, requirements, decision, or determination made by the Zoning Administrator in the enforcement of this chapter.

   B.   To grant a variation in the requirements of this chapter when a property owner can show that the property was acquired in good faith and where by reason of exceptional narrowness, shallowness, or shape of a specific piece of property, or where, by reason of exceptional topographical conditions or other extraordinary or exceptional situations, the strict application of the terms of this chapter actually prohibits the use of the property in a manner reasonably similar to that of other property in the district, or where the Board is satisfied under the evidence before it, that the granting of such variation will alleviate a clearly demonstrable hardship; provided, however all variations granted under this section shall be in harmony with the intended spirit and purpose of this chapter.

   C.   To permit exceptions to the district regulations set forth in this chapter, provided all exceptions shall by their design, construction and operation adequately safeguard the health, safety and welfare of the occupants of adjoining and surrounding property, shall not impair an adequate supply of light and air to adjacent property, shall not increase congestion in the public streets, shall not increase public danger of fire and safety, and shall not diminish or impair established property values in surrounding areas.

   D.   To permit the extension of a district where the boundary line of a district divides a lot in a single ownership as shown of record or by existing contract or purchase at the time of the enactment of this chapter, but in no case shall such extension of the district boundary line exceed 50 feet in any direction.

   E.   To issue special permits as provided in sections 165.41 and 165.45 of this chapter.

5.   Board Procedures. In exercising its powers, the Board may, in conformity with the provisions of law, 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 it believes proper, and to that end shall have all the powers of the Zoning Administrator. The concurring vote of three of the members of the Board shall be necessary to reverse any order, requirement, decision or determination of the Zoning Administrator, or to decide in favor of the applicant on any matter upon which it is required to pass under this chapter; provided, however, the action of the Board shall not become effective until after the resolution of the Board, setting forth the full reason for its decision and the vote of each member participating therein has been recorded in the minutes. Such resolution immediately following the Board’s final decision, shall be filed in the office of the City Clerk, and shall be open to public inspection. Every variance and exception granted or denied by the Board shall be supported by a written testimony or evidence submitted in connection therewith.

6.   Abandonment of Variances. Uses of land, and uses of structures which would have otherwise be prohibited under the provisions of this chapter but have been allowed by the granting of a variance may continue until such variance lapses as provided in this section. In the event any such use of land or of a structure is not commenced by July 1, 1997, or within two years of the issuance of the variance, whichever is later, or is discontinued for a period of one year after January 1, 1997, such variance shall lapse and any subsequent use of such land or structure shall conform to the district regulations for the district in which such land or structure is located.

7.   Appeals of Board Decisions. Any resident, or any officer, department, or board of the City, or any person or persons jointly or severally aggrieved by any decision of the Board 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. 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 shall be made, which shall not be less than 10 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, upon notice to the Board and on due cause shown grant a restraining order. 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 portion 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. If upon the hearing, which shall be tried de novo, it shall appear to the court that testimony is necessary for the proper disposition of the matter, it may take such evidence or appoint a referee to take such evidence as it may direct and report the same to the court with findings of act 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 in part, or may modify the decision brought up for review. Costs shall not be allowed against the Board unless it shall appear to the court that it acted with gross negligence or in bad faith or with malice in making the decision appealed from.