Duquesne City Zoning Code
SECTION 404
100 Jurisdiction And Powers Of Board Of Adjustment.
[R.O. 2004 § 404.100; Ord. No. 106 § 1, 7-21-2008]
A.
A Board of Adjustment is hereby established in accordance with the provisions of Chapter 89, RSMo., regarding the zoning of cities.
B.
The Board of Adjustment shall consist of five (5) residents appointed by the Mayor and approved by the Board of Aldermen. The term of the office of the members of the Board of Adjustment shall be for five (5) years, excepting that five (5) members first appointed shall serve respectively for terms of one (1) year; two (2) years; three (3) years; four (4) years; and five (5) years; thereafter members shall be appointed for terms of five (5) years each. Three (3) alternate members may be appointed to serve in the absence of or the disqualification of the regular members. All members and alternates shall be removable for cause by the appointing authority upon written charges and after public hearing. Vacancies shall be filled for the unexpired term of any member whose term becomes vacant. The members shall elect their own Chairman, Vice Chairman and Secretary who shall serve for one (1) year. The Board of Adjustment shall adopt rules in accordance with the provisions of any ordinance adopted pursuant to Sections 89.010 to 89.140, RSMo. Meetings of the Board of Adjustment shall be held at the call of the Chairman and at such other times as the Board of Adjustment may determine. Such Chairman, or in his/her absence the Vice Chairman, may administer oaths and compel the attendance of witnesses. All meetings of the Board of Adjustment shall be open to the public. The Board of Adjustment shall keep minutes of its proceedings, showing the vote of each member upon 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 in the office of the City Clerk and shall be a public record. All testimony, objections thereto and rulings thereon shall be recorded by a transcriptionist. The presence of three (3) members of the Board of Adjustment shall constitute a quorum for the transaction of business; however, the concurring vote of four (4) members of the Board of Adjustment shall be necessary to reverse any order, requirement, decision or determination of any such City administrative official to decide in favor of applicant.
C.
Where there are practical difficulties or unnecessary hardships in the way of carrying out the strict letter of this Chapter, the Board of Adjustment may authorize a variation of the application of the use, height and area regulations so that the spirit of this Chapter shall be observed, public safety and welfare secured and substantial justice done.
D.
The Board of Adjustment shall not have the power to change the classification of property as shown on the Zoning District Map nor to make any changes in the regulations of the Zoning Code but shall interpret the Zoning Code and authorize variations.
E.
The Board of Adjustment shall have the following powers and it shall be its duty:
1.
To hear and decide appeals where it is alleged there is error in any order, requirement, decision or determination made by the City administrative official in the enforcement of Sections 89.010 to 89.140, RSMo.
a.
Appeals to the Board of Adjustment may be taken by the person aggrieved, by any neighborhood organization as defined in Section 32.105, RSMo., representing such person, or by any officer, department or bureau of the government affected by any decisions of the administrative official. Such appeal shall be taken within a reasonable time, as shall be prescribed by the Board of Adjustment by general rule, by filing with the City Clerk and with the Secretary of the Board of Adjustment notice of appeal specifying the grounds thereof. The administrative official shall forthwith transmit to the Secretary of the Board of Adjustment all papers constituting the record upon which the action appealed from is taken. The concurring vote of four (4) members of the Board of Adjustment shall be necessary to reverse any order, requirement, decision or determination of any such City administrative official to decide in favor of applicant.
b.
An appeal stays all proceedings in furtherance of the action appealed from, unless the administrative official certifies to the Board of Adjustment, after the notice of appeal shall have been filed with him/her, that by reason of facts stated in the certificate, a stay would, in his/her opinion, cause immediate 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 of Adjustment or by a court of record on application or notice to the administrative official whom the appeal is taken and on due cause shown.
2.
Permit a temporary building for commerce or industry in a dwelling district which is incidental to the residential developments, such permit to be issued for a period of not more than one (1) year.
3.
To interpret the provisions of this Chapter in such a way as to carry out the intent and purpose of the plan, as shown on the map fixing the several districts accompanying and made a part of this Chapter where the street layout actually on the ground varies from the street layout as shown on the map aforesaid.
4.
To interpret and vary the application of the side, rear and front yard regulations and parking requirements in specific cases so as to carry out the intent and purpose of this Chapter.
5.
To authorize upon appeal in specific causes such variance from the terms of this Chapter as will not be contrary to the public interest, where owing to special conditions a literal enforcement of the provisions of this Chapter will result in unnecessary hardship, so that the spirit of this Chapter shall be observed and substantial justice done.
a.
The applicant must show that his/her property was acquired in good faith and where by reason of exceptional narrowness, shallowness or shape of this specific piece of property at the time of the effective date of the district zoning regulations or where by reason of exceptional topographical conditions or other extraordinary or exceptional circumstances, that the strict application of the terms of the zoning regulations actually prohibits the use of his/her property in the manner similar to that of other property in the zoning district where it is located.
b.
A request for a variance may be granted upon a finding of the Board of Adjustment that all of the following conditions have been met. The Board of Adjustment shall make a determination of each condition and the finding shall be entered in the record.
(1)
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 applicant.
(2)
The granting of the permit for the variance will not adversely affect the rights of adjacent property owners or residents.
(3)
The strict application of the provisions of the zoning regulations of which the variance is requested will constitute unnecessary hardship upon the property owner represented in the application.
(4)
The variance desired will not adversely affect the public health, safety, quality of life order, convenience, prosperity or general welfare.
(5)
The granting of the variance desired will not be opposed to the general spirit and intent of the zoning regulations.
(6)
The variance requested is the minimum variance that will make possible the reasonable use of the land or structure.
6.
Conditions Of Determination. In exercising the above-mentioned powers such Board of Adjustment may, in conformity with the provisions of Sections 89.010 to 89.140, RSMo., 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 ought to be made 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. A majority of the Board of Adjustment shall constitute a quorum for the transaction of business and a concurring vote of four (4) members of the Board of Adjustment shall be necessary to reverse any order, requirement, decision or determination of any such administrative official or to decide in favor of the applicant on any matter upon which it is required to pass under any such zoning ordinance or regulation or to effect any variation in such zoning ordinance or regulation. Upon the hearing, any party may appear in person or by agent or by attorney.
7.
Applications. The procedure for requesting a hearing before the Board of Adjustment shall be as follows:
a.
All applications to the Board of Adjustment shall be in writing on forms approved by the Board of Adjustment and provided by the City.
b.
The Board of Adjustment shall fix a reasonable time for the hearing of an application and notice of the time, place and subject of each hearing shall be published in the official newspaper (as designated by the Board of Aldermen) at least fifteen (15) days prior to the date fixed for the public hearing. The City Clerk shall send a copy of the notice of public hearing to each party of interest and to the Commission. In addition, the City Clerk will supervise the proper posting of subject property by the applicant.
c.
An application shall be accompanied by a filing fee in the amount of six hundred dollars ($600.00). In addition, the applicant shall be responsible for the cost of any required transcript of any required hearing. In addition to the above requirements, the City may require additional information as deemed necessary.
[Ord. No. 363 § 1, 5-14-2018]
8.
Appeals.
a.
An application for an appeal shall be filed within sixty (60) days after a ruling has been made by the administrative official.
b.
A copy of the order, requirement, decision or determination of the administrative official which the appellant believes to be in error.
c.
A clear and accurate written description of the proposed use, work or action in which the appeal is involved and a statement justifying the appellant's position.
d.
Where necessary, a plot plan, drawn to scale, shall be submitted in duplicate showing existing and proposed plans for the area in question.
9.
Variances.
a.
The applicant shall submit a written statement justifying the variance requested, indicating specifically the enforcement provisions of the zoning regulations from which the variance is requested and outlining in detail the manner in which it is believed that this application will meet each of the six (6) conditions as set out in Section 404.100(E)(5)(b).
b.
The applicant shall submit a sketch, in duplicate, drawn to scale and showing the lot or lots included in the application, the structures existing thereon and the structures contemplated necessitating the variance requested. All appropriate dimensions should be included and any other information which would be helpful to the Board of Adjustment in consideration of the application.
10.
Performance. In making any decision varying or modifying any provisions of the zoning regulations or in granting an exception to the district regulations, the Board of Adjustment shall impose such restrictions, terms, time limitations, landscaping and other appropriate safeguards to protect adjoining property.
a.
The Board of Adjustment may require a performance bond to guarantee the installation of improvements such as parking lot surfacing, landscaping, etc. The amount of the bond shall be based on a general estimate of cost for the improvements as determined by the Board of Adjustment and shall be enforceable by or payable to the Board of Aldermen in the sum equal to the cost of constructing the required improvements.
b.
In lieu of the performance bond requirement, the Board of Adjustment may specify a time limit for the completion of such required improvements and, in the event the improvements are not completed within the specified time, the Board of Adjustment may declare the granting of the application null and void after reconsideration.
11.
Who May Appeal The Board Of Adjustment Decision. Any person or persons jointly or severally aggrieved by any decision of the Board of Adjustment, any neighborhood organization as defined in Section 32.105, RSMo., representing such person or persons or any officer, department, board or bureau of the municipality may present the Circuit Court of the County or City in which the property affected is located a petition, duly verified, setting forth 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 filing of the decision in the office of the Board.
12.
Decisions Subject To Review — Procedure. Upon the presentation of such petition the court may allow a writ of certiorari directed to the Board of Adjustment to review such decision of the Board of Adjustment and shall prescribe therein the time within which a return thereto must be made and served upon the relator's attorney, which shall not be less than ten (10) days and may be extended by the court. Costs shall not be allowed against the Board of Adjustment 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. All issues in any proceedings under Sections 89.080 to 89.110, RSMo., shall have preference over all other civil actions and proceedings.
