De Soto City Zoning Code
ARTICLE VIII
Board of Adjustment
Section 405.410 Board of Adjustment.
[CC 1988 §29-94; Ord. No. 2788 §9, 10-21-1985; Ord. No. 3278 §1, 9-16-1996; Ord. No. 3292 §1, 2-19-1997; Ord. No. 3697 §1, 8-21-2006; Ord. No. 5033, 10-21-2024]
A.
Established — Composition — Appointment Of Members — Terms — Vacancies — Removal — Organization — Alternates.
1.
The Board of Adjustment is established pursuant to Section 89.080, RSMo. The word "Board," when used in this Section, shall be construed to mean the Board of Adjustment. The Board shall consist of five (5) members who shall be residents of the City, appointed by the Mayor and approved by the City Council. The term of office of the members of the Board shall be for five (5) years. The Mayor and Mayor Pro Tem shall be members of the Board, if the Mayor and/or Mayor Pro Tem choose to be a member of the Board of Adjustment. No more than two (2) members of the City Council shall be members of the Board. Up to three (3) alternates may be appointed to serve in the absence of or the disqualification of the regular members. Alternates shall be appointed for terms of five (5) years each. Vacancies for regular members shall and for alternates may be filled for the unexpired term only of any member or alternate whose term becomes vacant. All members and alternates shall be removable for cause by the Mayor and the City Council, upon written charges and after public hearing. Removal for cause, shall include, but not be limited to, non-attendance of any City citizen member at three (3) consecutive regular meetings of the Board.
Alternates shall be designated by the Mayor and City Council as first (1st), second (2nd) and third (3rd) alternates. Alternates shall be called upon to serve on the Board by the Chairman or, in the Chairman's absence, by the Vice Chairman, whenever one (1) or more regular members are unable to or fail to attend a meeting of the Board. Alternates shall be called in the following order: the first (1st) alternate or if he/she is unavailable or fails to attend the meeting, then the second (2nd) alternate, or if he/she is unavailable or fails to attend the meeting, then the third (3rd) alternate. Alternates are encouraged to attend all meetings of the Board even if they do not serve as a member of the Board at that meeting. Whenever an alternate serves as a member of the Board, such fact shall be noted in the minutes. The vote of any alternate serving as a member of the Board shall be counted in any action taken by the Board.
2.
The Board shall elect its own Chairman who shall serve for one (1) year. The Board shall adopt, from time to time, such rules and regulations as it may deem necessary to carry into effect the provisions of this Chapter.
B.
Meetings.
1.
Meetings of the Board shall be held at the call of the Chairman and at such other times as the Board may determine. Such Chairman, or in his/her absence the acting Chairman, chosen by those present at the meeting, may administer oaths and compel attendance of witnesses. All meetings of the Board shall be open to the public.
2.
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 keep records of its examinations and other official actions, all of which shall be immediately filed in the office of the Board and shall be a public record.
C.
Appeals Generally.
1.
The Board shall hear and decide appeals on any matter over which it is granted jurisdiction. Appeals may be taken by any person aggrieved, by any neighborhood organization as defined in Section 32.105, RSMo., representing such person, or by any officer, department, any board or bureau of the City affected by any decision of the City Manager or his/her designee relating to enforcement of the Zoning Ordinance.
Such appeal shall be taken within thirty (30) days of such decision by filing with the City Manager or his/her designee and with the Board a notice of appeal, specifying the grounds thereof. The City Manager or his/her designee shall forthwith transmit to the Board all papers constituting the record upon which the action appealed from is taken.
2.
An appeal stays all proceedings in furtherance of the action appealed from, unless the City Manager or his/her designee certifies to the Board, after the notice of appeal has been filed with him/her, that by reason of facts stated in the certificate, a stay would, in his/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 or notice to the City Manager or his/her designee on good cause shown.
3.
The Board shall fix a reasonable time for the hearing of the appeal, give not less than fifteen (15) days' public notice thereof in a newspaper of general circulation, notify all property owners within one hundred eighty-five (185) feet of the property for which the variance is being requested 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, by agent or by attorney.
D.
Powers Generally — Variances — Exceptions. The Board of Adjustment shall have the following powers:
1.
Powers relative to errors. To hear and decide appeals where it is alleged there is an error in any order, requirement, decision or determination made by the City Manager or his/her designee in the enforcement of this Chapter.
2.
Powers relative to variations. The Board may vary the yard, height and minimum lot area regulations where there is an exceptional or unusual condition, which condition would prevent a reasonable or sensible arrangement of structures on the lot.
3.
Powers relative to exceptions. Upon appeal, the Board is hereby empowered to permit the following exceptions:
a.
To permit the extension of a district where the boundary line of the district divides a lot of record in single ownership.
b.
To permit the reconstruction of a non-conforming building which has been damaged by explosion, fire, act of God or the public enemy to the extent of more than twenty percent (20%) and less than fifty percent (50%) of its assessed value, when the Board shall find some compelling public necessity requiring a continuance of the non-conforming use, but in no case shall such a permit be issued if its primary function is to continue a monopoly.
c.
To permit the erection and use of a building or the use of premises in any location for a public service corporation for public utility purposes which the Board deems reasonably necessary for the public convenience or welfare.
d.
To interpret the provision 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, which map is made a part of this Chapter.
e.
To vary parking regulations of this Chapter, whenever the character or use of the building is such as to make unnecessary the full provision of parking facilities or when such regulations would impose an unreasonable hardship upon the use of the lot, as contrasted with merely granting an advantage or a convenience.
f.
The Board may vary the regulations on accessory uses, trailer courts, signs, fences and satellite receiving antennas where the applicant demonstrates that the regulations would create a hardship.
E.
Authority On Appeal. In exercising the above powers, the Board may, in conformity with the provisions of this Chapter, reverse or affirm, wholly or partly, or may modify the order, requirement, decision or determination appealed from and 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. In considering all appeals to this Chapter, the Board shall, before making any finding in a specific case, first determine that the proposed change will not constitute a change in the District Map and will not impair an adequate supply of light and air to adjacent property, or increase congestion in public streets, or increase the danger, or materially diminish or impair established property values within the surrounding area, or in any other respect impair the public health, safety, comfort, morals and welfare of the City. Every change granted or denied by the Board shall be accompanied by a written finding of fact, specifying the reason for granting or denying the variation. The decision of the Board shall be made a part of any building permit in which a variation is allowed.
F.
Votes Required For Taking Action. The concurring vote of four (4) members of the Board shall be necessary to reverse any order, requirement, decision or determination of the City Manager or his/her designee in enforcing this Chapter, or to decide in favor of the applicant on any matter upon which it is required to pass under this Chapter, or to effect any variation in this Chapter.
G.
Appeals To Circuit Court. Any persons jointly or severally aggrieved by any decision of the Board of Adjustment or of any officer, any neighborhood organization, defined by Section 32.105, RSMo., may appeal a decision of the Board of Adjustment, department, board or bureau of the City may present to the Circuit Court having jurisdiction in the County a petition, duly verified, stating that such decision is illegal, in whole or in part, specifying the grounds of the illegality, and asking for relief therefrom. Such petition shall be presented to the court within thirty (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 for review of the data and records acted upon or it may appoint a referee to take additional evidence in the case. The court may reverse or affirm 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.