The board of zoning adjustment is hereby established and the following rules are set forth to govern its operation:

(a)

Membership: The board shall consist of five (5) members appointed by the city council for overlapping terms of three (3) years.

(b)

Initial appointment: The initial appointment shall be as follows: two (2) members for one (1) year; two (2) members for two (2) years; and, one (1) member for three (3) years.

(c)

Vacancies: Any vacancy in the membership shall be filled for the unexpired term in the same manner as the initial appointment. Members shall be removed for cause by the city council upon written charges and after public hearing thereon.

(d)

Public offices held: No members shall hold any other public office or position; with the exception that one (1) of the board members may also be a member of the planning commission.

(e)

Rules of procedure: The board shall observe the following procedures:

(1)

Shall adopt rules in accordance with the provisions of this Ordinance for the conduct of its affairs.

(2)

Shall elect one of its members, other than a member of the planning commission, as chairman, who shall serve for one (1) year or until he/she is re-elected or his/her successor is elected. Said board will appoint a recording secretary.

(3)

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

The chairman, or in his/her absence, the acting chairman, may administer oaths and compel the attendance of witnesses by subpoena.

(4)

All meetings shall be open to the public and are governed by the Alabama Open Meetings Act 2005-40, as amended.

(5)

Said board shall keep minutes of its proceedings, show the vote of each member upon questions, 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 become public record.

(f)

Duties and powers: The board shall have the following duties and powers:

(1)

Administrative appeal: To hear and decide appeals where it is alleged there is error in any order, requirement, decision, or determination made by the director of community development, zoning enforcement officer, code enforcement officer or other administrative official, involved in the enforcement of this Ordinance.

(2)

Special exceptions: To hear and decide special exceptions to the terms upon which said board is required to pass under this Ordinance. Such special exception may be granted in such individual case upon finding by the board that:

(a)

The overall development would be in harmony with the vicinity; and orderly.

(b)

Adequate utilities and public services are available.

(c)

The use would not create an adverse impact to the health, safety and public welfare of the vicinity.

(d)

Mitigating efforts exist to reduce any potential minor impacts to the vicinity.

(3)

Variances: To authorize upon appeal in specific cases such variance from the terms of this Ordinance as will not be contrary to the public interest where, owing to special conditions, a literal enforcement of the provisions of this Ordinance will, in an individual case, result in unnecessary hardship, so that the spirit of this Ordinance shall be observed, public safety and welfare secured, and substantial justice served. Such variance may be granted in such individual case of unnecessary hardship upon a finding by the board that:

(a)

There are extraordinary and exceptional conditions pertaining to the particular piece of property in question because of its size, shape, or topography.

(b)

The application of this Ordinance to this particular piece of property would create an unnecessary hardship.

(c)

Such conditions are peculiar to the particular piece of property involved.

(d)

Relief, if granted, would not cause substantial detriment to the public good or impair the purpose and intent of this Ordinance; provided, however, that no variance may be granted for a use of land or building or structure that is prohibited by this Ordinance.

(e)

Variance examples would be as follows: Allowing smaller yard dimensions because an existing lot of record is of substandard size; waiving a portion of required parking and/or loading space due to some unusual circumstances; or, allowing fencing and/or plant material buffering different from that required, due to some unusual circumstances. This is available only on appeal to the board of zoning adjustment.

(g)

Use variance not permitted: The board shall not be authorized to approve a use not permitted in a zoning district for which the provision is not otherwise provided herein.

(Ord. No. 2023-43, § 7(A), 1-2-24)

Persons requesting a hearing before the board of zoning adjustment for an administrative review, special exception, or a variance shall observe the following procedures:

(a)

An application on the prescribed form shall be filed with the department of community development by said owner of the subject property by the first day of the month for presentation at the next regular meeting, held on the first Thursday of the subsequent month. The application shall include all the specified pertinent data including an explanation of the grounds on which the appeal is being made.

(b)

An application shall be accompanied by all supplemental materials listed in the applicable application packet found in Appendix G.

(c)

The board shall hear the appeal within thirty (30) calendar days after its receipt. Public notice of the hearing shall be published in full for one (1) insertion and an additional insertion of a synopsis of the proposed hearing request one (1) week after the first insertion in a newspaper of general circulation published in the municipality, the first insertion shall be at least fifteen (15) calendar days prior to the said public hearing; or, if no newspaper is published in the municipality, then said notice shall be posted in four (4) conspicuous places within the municipality at least fifteen (15) calendar days prior to the said public hearing. Due notice shall be given to the parties in interest of the date, time, and place of said hearing. A sign shall be posted upon properties which by law require public notice.

(d)

The board shall render a decision on any appeal or other matters before it within forty-five (45) calendar days from the date of the public hearing.

(e)

An appeal stays all legal proceedings in furtherance of the action appealed from, unless the director of community development certifies to the board after the notice of appeal shall have been filed with him/her, by reason of facts stated in the certificate a stay would, in his/her opinion, cause an imminent peril to life and property. In such case, proceedings shall not be stayed otherwise than by a restraining order which may be granted by the said board or a court of record on application, on notice to the official from whom the appeal is taken and on due cause shown.

(f)

In exercising the powers granted the board of zoning adjustment in the administrative appeal procedures outline above, said board may, in conformity with the provisions of this Ordinance, reverse or affirm, wholly or in part, or may modify the order, requirements, decisions, or determination of the director of community development, zoning enforcement officer, code enforcement officer or other administrative official, involved in the enforcement of this Ordinance.

(a)

A property owner, or his/her appointed agent, shall not initiate action for a hearing before the board relating to the same parcel of land, for which the request was not approved by the board, more often than once every twelve (12) months on the same request.

(b)

Any petition for a hearing before the board may be withdrawn prior to action thereon by the board at the discretion of the person initiating such a request upon providing written notice to the recording secretary of the board.

(c)

Any person or persons severally or jointly aggrieved by any decision of the board may, within fifteen (15) calendar days thereafter, make an appeal to the circuit court or the like jurisdiction, by filing with the board of zoning adjustment a written notice of appeal specifying the judgment or decision from which appeal is taken.

(Ord. No. 2023-43, § 7(B), 1-2-24)

An appeal to the board of zoning adjustment for administrative review, special exception, variance, in addition, the actual costs for legal advertisements of the request and notifications to parties in interest shall be accompanied by the appropriate fee as more specifically enumerated in Article XXXIV, Schedule of Fees.

Fees paid for appeals to the board of zoning adjustment in accordance with section 21-1, subsection (f)(1), Administrative review, after the board has acted on an appeal may be returned to the appellant by resolution of the city council, if the board has ruled in favor of the appellant, and it is deemed appropriate to do so.