A Board of Zoning Appeals shall be established by the Governing Body as prescribed by K.S.A. 12-759 and hereinafter in these regulations will be referred to as the "Board".

The Board shall be the Planning Commission pursuant to the authorization provided by K.S.A. 12-759(g) and Chapter 2.16 of the City Code.

Appeals to the Board may be taken by any person aggrieved, or by any officer of the city, county or any governmental agency or body affected by any decision of the Zoning Administrator, or in the case of a floodplain permit, the Floodplain Administrator. Such appeal must be taken within thirty (30) days after a decision has been made by the Zoning Administrator or Floodplain Administrator, by filing a notice of appeal specifying the grounds thereof and the payment of the fee required therefor. The Zoning Administrator, when notified by the Board or its agent, shall transmit to the Board all the papers constituting the record upon which the action appealed from was taken. The Board shall then fix a reasonable time for the hearing of such appeal. Notice of the time, place and subject of such hearing shall be published once in the official City newspaper at least 20 days prior to the date fixed for hearing. A copy of the notice shall be mailed to each party to the appeal, the Planning Commission, and adjoining landowners as prescribed in Section 1003.B. of these regulations. The Board shall have power to hear and decide appeals where it is alleged there is error in any order, requirement, decision or determination made by the Zoning Administrator in the enforcement of these regulations, or by the Floodplain Administrator in the enforcement or administration of Chapter 17.08 of the Derby Municipal Code. In exercising the foregoing powers, the Board, in conformity with the provisions of K.S.A. 12-759 et seq., may reverse or affirm, wholly or partly, or may modify the order, requirement, decision, or determination, and to that end shall have all the powers of the officer from whom the appeal is taken, may attach appropriate conditions, and may issue or direct the issuance of a permit.

When deemed necessary by the Board, the Board may also grant variances from these regulations, in accordance with the requirements of K.S.A. 12-759(e), to authorize in specific cases a variance from the specific terms of these regulations which will not be contrary to the public interest and where, due to special conditions, a literal enforcement of the provisions of these regulations, in an individual case, results in unnecessary hardship, and provided that the spirit of these regulations shall be observed, public safety and welfare secured, and substantial justice done.

The Board shall also have the power to hear and decide requests for variances from the floodplain management requirements, and in accordance with the specific variance criteria outlined in Chapter 17.08 of the Derby Municipal Code.

A.

Application. An application for a variance by a property owner shall be filed with the Zoning Administrator, provide the legal description of the property involved with the variance, be accompanied by a certified ownership list of property owners for notification as required by subsection B below and the filing fee, and contain the following information as well as such additional information as may be requested by the Board:

1.

The particular requirements of these regulations which prevent the proposed use or construction;

2.

The characteristics of the requested property which prevent compliance with the requirements of these regulations;

3.

The reduction of the minimum requirements of these regulations which would be necessary to permit the proposed use or construction; and

4.

The particular hardship which would result if the non-varied requirements of these regulations were applied to the subject property.

5.

When seeking a variance from the Floodplain Management provisions of 17.08 of the Derby Municipal Code, all such data, evaluations or other information specified in section 17.08.080(E) of said Municipal Code, if applicable.

B.

Notice and Hearing. Upon receipt of a complete application, the Board shall then fix a reasonable time for the hearing concerning such application for a variance. Notice of the time, place and subject of such hearing, and the legal description or a general description sufficient to identify the property under consideration shall be published once in the official newspaper so that at least 20 days shall elapse between the date of such publication and the date for the hearing. Additionally, for land inside the city limits, the Board shall also provide notice to all owners of record of lands located within 200 feet of the exterior boundary of the property under consideration. If the applicant's property is located adjacent to but within the city limits, the area of notification in addition to the 200 feet inside the City, shall be extended to 1,000 feet in the unincorporated area. Such notice shall be mailed so that at least 20 days shall elapse between the mailing date and the hearing date. All notices shall include a statement that a complete legal description is available for public inspection and shall indicate where such information is available when only a general description of the property is provided in the notice. Failure to receive such notice after it has been properly addressed and deposited in the mail shall not invalidate any subsequent action taken by the Board.

C.

Standards.

1.

A request for a variance from the zoning regulations may be granted in compliance with subsection A and B above, upon a finding by the Board that all of the following conditions have been met: (A) That the variance requested arises from such condition which is unique to the property in question and which is not ordinarily found in the same zone or district; and is not created by an action or actions of the property owner or the applicant; (B) that the granting of the permit for the variance will not adversely affect the rights of adjacent property owners or residents; (C) that the strict application of the provisions of these regulations of which variance is requested will constitute unnecessary hardship upon the property owner represented in the application; (D) that the variance desired will not adversely affect the public health, safety, morals, order, convenience, prosperity, or general welfare; and (E) that granting the variance desired will not be opposed to the general spirit and intent of these regulations.

2.

A request for a variance from Chapter 17.08 "Floodplain Management" of the Derby Municipal Code may be granted in compliance with subsections A and B above, and in compliance with sections 17.08.080(E) and 17.08.080(F) of said Municipal Code.

D.

Conditions. In granting a variance, the Board may attach such conditions upon the property and/or the applicant benefited by the variance it deems necessary to address issues raised during the application and hearing process, or to further the purpose of Chapter 17.08 of the Derby Municipal Code in the case of a variance from said Chapter 17.08 "Floodplain Management." The variance is subject to ongoing compliance with these conditions and shall lapse and become ineffective if such conditions are not continually complied with.

E.

Decision. The Board shall render and issue a written decision to the applicant in the form of a variance to be filed with the Sedgwick County Register of Deeds Office or a written denial of the requested permit containing specific findings of fact to be filed with the application within 45 days from the close of the hearing.

F.

Period of Validity. A variance issued pursuant to these regulations shall lapse and become ineffective if the variance is not commenced upon the property within 180 days and/or continuously maintained on the property thereafter; provided, that the Board may grant additional extensions not exceeding 180 days each, upon written application, without further notice or hearing.

The Board may grant, in accordance with the provisions of these regulations and K.S.A. 12-759(e), exceptions to the provisions of these regulations in those instances where the board is specifically authorized to grant such exceptions and only under the terms of the zoning regulations. In no event shall exceptions to the provisions of these regulations be granted where the exception contemplated is not specifically listed as an exception in these regulations. Further, under no conditions shall the Board have the power to grant an exception when conditions of the exception, as established in these regulations, are not found to be present.

A.

Application. An application for an exception shall (1) be filed with the Zoning Administrator, (2) provide the legal description of the property involved with the exception, (3) be accompanied by a filing fee established by the City, and (4) contain the following information as well as any additional information that may be requested by the Board:

1.

A statement or diagram showing how strict compliance with limitations and/or special conditions or requirements imposed by these regulations prevent the proposed use or construction;

2.

A statement as to why the proposed exception will not cause substantial injury to the value of other property in the neighborhood;

3.

A statement as to how the proposed exception is to be designed, arranged and operated in order to permit the development and use of neighboring property in accordance with the applicable regulations; and

4.

Present data in support of the standards specified in Section 1004(D).

B.

Authorized Exceptions. The Board shall be authorized to grant exceptions for off-site parking pursuant to Section 502 and for signs pursuant to Section 708 of these regulations. The Board further shall be authorized to grant exceptions for the following provisions of these regulations:

1.

Lot sizes

2.

Bulk regulations

3.

Use limitations

4.

Permitted obstructions in required yards

5.

Screening and landscaping requirements

6.

Off-street parking and loading requirements

7.

Other exceptions as specified elsewhere in these regulations

C.

Hearing and Notice. Upon receipt of a complete application, the Board shall then fix a reasonable time for the hearing concerning such application for an exception by permit. Notice of the time, place and subject of such hearing shall be published once in the official City newspaper at least 20 days prior to the date fixed for hearing. A copy of the notice shall be mailed to each party with a legal interest in the requested property, the Planning Commission, and adjoining landowners as prescribed in Section 1003.B. of these regulations.

D.

Standards. The Board may grant an exception based upon specific written findings of fact made after consideration of the request and any comments and/or evidence presented to the Board before and during the hearing provided in accordance with subsection C above in light of relevant factors, including but not limited to the following:

1.

The proposed exception will not cause substantial injury to the value of other property in the neighborhood.

2.

The location and size of the use, the nature and intensity of the operation involved in or conducted in connection with it, and the location of the site with respect to streets giving access to it are such that the exception will not dominate the immediate neighborhood so as to prevent development and use of neighboring property in accordance with the applicable zoning district regulations.

3.

Adequate utility, drainage, sidewalks and other such necessary facilities have been installed or will be provided by platting, dedications and/or guarantees.

4.

Adequate access roads, entrance and exit drives and/or access control is available or will be provided by platting, dedications and/or guarantees and shall be designed to prevent traffic hazards and to minimize traffic congestion in public streets and alleys.

5.

The exception will not adversely affect the public health, safety, morals, order, convenience, prosperity, or general welfare.

6.

Orderly land use planning will be achieved in keeping with the goals and proposals of the Comprehensive Plan.

7.

An alternative approach accomplishes the general spirit and intent of the provision in a manner that is equal to or better than strict compliance with the provision.

8.

Strict compliance with the provision is not feasible due to topography, existing development, or a natural area or feature or constitutes an unnecessary hardship upon the property owner.

9.

The proposed exception arises from such a condition that is unique to the property and that is not ordinarily found in the same zone or district.

10.

The proposed exception would be compatible with existing or permitted uses in surrounding areas.

E.

Conditions. In granting an exception, the Board may attach such conditions upon the property and/or the applicant benefited by the exception it deems necessary to address issues raised during the application and hearing process. The exception is subject to ongoing compliance with these conditions and shall lapse and become ineffective if such conditions are not continually complied with. Such conditions may include, but not be limited to, length and time of operation and ownership limitations; screening, landscaping and fencing; provision of utilities, drainage, sidewalks and other public improvements; additional access or access control; off-street parking and loading requirements; and platting, dedications and/or guarantees. In addition to the guarantees referred to below for parking and/or screening, covenants which run with the land or the property to guarantee that conditions will be carried out at a future date may be required to be filed with the Sedgwick County Register of Deeds.

F.

Decisions and Records. The Board shall render and issue a written decision to the applicant in the form of an exception to be filed with the Sedgwick County Register of Deeds Office or a written denial of the requested exception containing specific findings of fact to be filed with the application within 45 days from the close of the hearing.

G.

Period of Validity. An exception issued pursuant to these regulations shall lapse and become ineffective if the exception is not commenced upon the property within 180 days and/or continuously maintained on the property thereafter; provided, that the Board may grant additional extensions not exceeding 180 days each, upon written application, without further notice and hearing.

The intent and purpose of this section is to allow for streamlined action on requests for minor modifications or adjustments to certain provisions of these regulations.

A.

Authority. The Zoning Administrator, with the concurrence of the Development Director, shall have the authority to approve applications for zoning adjustments. For properties subject to site plan review pursuant to Section 305 of these regulations, the Planning Commission shall have the authority grant zoning adjustments as part of the site plan review process if it determines the request meets the standards in Section C below.

B.

Authorized Zoning Adjustments. Zoning adjustments shall be limited to the following:

1.

Reducing the minimum lot area, width, or depth by up to 10 percent.

2.

Increasing the maximum structure height by up to 20 percent.

3.

Reducing the minimum front, rear, or side yard by up to 20 percent.

4.

Increasing the maximum lot coverage by up to 10 percent.

5.

Reducing off-street parking and loading requirements, the required depth of parking stalls and the required width of circulation aisles by up to 25 percent.

6.

Permitting off-street parking in residential districts to be located within the required front yard.

7.

Increasing the maximum height of a sign by up to 10 percent.

8.

Increasing the maximum size of a sign by up to 10 percent.

9.

Increasing the permitted height of a fence located within a setback to a maximum of eight feet in height.

C.

Standards. A zoning adjustment may be granted based upon specific written findings of fact made after consideration of the request and any comments and/or evidence presented in light of relevant factors, including but not limited to the standards in Section 1004.D. of these regulations.

D.

Conditions. In granting a zoning adjustment, the City may attach such conditions upon the property and/or the applicant benefited by the zoning adjustment deemed necessary to address issues raised during the application process. The zoning adjustment is subject to ongoing compliance with these conditions and shall lapse and become ineffective if such conditions are not continually complied with. Such conditions may include, but not be limited to, length and time of operation and ownership limitations; screening, landscaping and fencing; provision of utilities, drainage, sidewalks and other public improvements; additional access or access control; off-street parking and loading requirements; and platting, dedications and/or guarantees. In addition to the guarantees referred to below for parking and/or screening, covenants which run with the land or the property to guarantee that conditions will be carried out at a future date may be required to be filed with the Sedgwick County Register of Deeds.

E.

Decisions and Records. The City shall render and issue a written decision to the applicant in the form of a zoning adjustment to be filed with the Sedgwick County Register of Deeds Office or a written denial of the requested zoning adjustment containing specific findings of fact to be filed with the application.

F.

Period of Validity. A zoning adjustment issued pursuant to these regulations shall lapse and become ineffective if the zoning adjustment is not commenced upon the property within 180 days and/or continuously maintained on the property thereafter; provided, that the Zoning Administrator may grant additional extensions not exceeding 180 days each, upon written application.

(Ord. No. 2529, §§ 1.23—1.25, 5-23-23; Ord. No. 2555, § 1.54, 5-14-24)

Any order or determination of the Board on an appeal of a decision, variance or exception shall be final. However, in accordance with K.S.A. 12-764, within 30 days of the final decision of the Board, any person aggrieved thereby may maintain an action in the Sedgwick County District Court to determine the reasonableness of such final decision.