(a)

A zoning board of adjustment is hereby established. The board shall consist of five members, one of which may be a member of the planning commission. Each member is to be appointed for a term of three years, except that in the first instance one member shall be appointed for a term of three years, two for a term of two years, and two for a term of one year. Thereafter, each member appointed shall serve for a term of three years or until his successor is duly appointed. Vacancies shall be filled for the unexpired term of any member whose term becomes vacant. Each member may be removed for cause by the appointing authority upon written charges and after a public hearing.

(b)

The members of the board serving on the effective date of the ordinance from which this chapter is derived under a zoning ordinance effective prior hereto shall be considered as the five members to be appointed by the city council, and each of these members shall serve the balance of the term to which such member was appointed.

(Ord. of 4-15-2008, § 10-1)

(a)

Meetings of the zoning board of adjustment shall be held at the call of the chairman and at such other times as the board may determine. Such chairman, or in his absence the acting chairman, may administer oaths and compel the attendance of witnesses. All meetings of the board shall be open to the public.

(b)

The board shall adopt and publish its own rules of procedure and 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 shall keep records of its examinations and of other official actions, all of which shall be immediately filed in the office of the board and shall be a public record.

(Ord. of 4-15-2008, § 10-2)

The zoning board of adjustment shall fix a reasonable time for the hearing of appeals or other matters referred to it and give due notice thereto to the parties in interest, and decide the same within a reasonable time. Upon a hearing, any party may appeal in person, or by agent or by attorney.

(Ord. of 4-15-2008, § 10-3)

The zoning board of adjustment shall have the following powers and duties:

(a)

Administrative review. 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 this chapter.

(1)

Appeals to the board may be taken by any person aggrieved by an officer, department, board or bureau of the city affected by a decision of the zoning administrator or any other city officials based on this chapter; not more than 14 days after the date of the administrator's decision which is the basis of the appeal, by filing with the secretary of the board a written application for appeal specifying the grounds thereof. The application shall be made on forms provided by the secretary and shall be accompanied by a nonrefundable application fee of $275.00 and all papers constituting the record upon which the action appealed from was taken. When application for appeal has been filed in proper form with the secretary, at least 14 days prior to the hearing at which the appeal with be considered, the secretary shall cause notices stating the time, place and object of the hearing to be served personally or by mail addressed to the party making the request for appeal. The notice shall be given at least seven days in advance of the public hearing.

(2)

An appeal stays all proceedings in furtherance of the action appealed from unless the zoning administrator certifies to the board, after the notice of appeal shall have been filed with him, that by reason of facts stated in the certificate a stay would, in his opinion, cause 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 board or by a court of record on application, on notice to the zoning administrator and on due cause shown.

(b) Variances. To authorize upon appeal in specific cases 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, in an individual case, result in practical difficulty or unnecessary hardship, so that the spirit of this chapter shall be observed, public safety and welfare secured, and substantial justice done. The existence of a nonconforming use of neighboring land, buildings or structures in the same district, or of permitted or nonconforming uses in other districts shall not constitute a reason for the requested variance. Application for a variance shall be filed with the secretary of the board of adjustment on forms provided by the secretary at least 14 days in advance of the public hearing, and shall be accompanied by:

(1)

A nonrefundable application fee of $100.00.

(2)

A site plan, drawn to scale, showing property lines, rights-of-way and easements; and the location, dimensions, and building setback for all existing and proposed buildings and structures on the site and adjacent to the site.

(3)

A scale drawing which shows all dimensions of the building, structure or area which is the subject of the variance request.

(4)

Variances.

a.

Any applications for variances within airport zones shall be accompanied by a determination from the Federal Aviation Administration as to the effect of the proposal on the operation on the air navigation facilities and the safe, efficient use of navigable air space. Additionally, no application for such a variance to the requirements of the airport zones may be considered by the board of adjustment unless a copy of the application has been furnished to the airport manager and the city airport board for advise as to the aeronautical effects of the variance. If neither the airport manager nor the city airport board responds to the application within 30 days after receipt, the board of adjustment may act on its own to grant or deny the application.

b.

Upon receipt of the completed application and appropriate fee, the secretary shall immediately place the request upon the calendar for hearing, and shall cause notices stating the time, place and object of the hearing to be served personally or by mail addressed to the party making the request for appeal and to all adjoining property owners as given in the last assessment roll. The notices shall be given at least seven days in advance of the public hearing.

c.

Such variances may be granted in such individual cases of unnecessary hardship upon a finding by the board of adjustment that the following conditions exist:

1.

There are exceptional conditions pertaining to the particular piece of property in question because of its size, shape or topography that are not applicable to other lands or structures in the same district.

2.

A personal hardship exists on the part of an individual property owner which will not permit him to enjoy the full utilization of his property which is given to others within the city. A hardship exists only when it is not self-created or when it is not economic in nature.

3.

Granting the variance requested will not confer upon the applicant any special privileges that are denied to other residents of the district in which the property is located.

4.

A literal interpretation of the provisions of this chapter would deprive the applicant of rights commonly enjoyed by other residents of the district in which the property is located.

5.

The requested variance will be in harmony with the purpose and intent of this chapter and will not be injurious to the neighborhood or to the general welfare.

6.

The special circumstances are not the result of the actions of the applicant.

7.

The variance requested is the minimum variance that will make possible the legal use of the land, building or structure.

8.

The variance is not a request to permit a use of land, building or structure which is not permitted in the district involved.

d.

If a variance is granted, all improvements related thereto shall be completed within one year of the grant or the variance lapses.

e.

If a variance is denied or lapses, a similar request for the same property may not be filed within one year of the denial or lapse.

(c) Conditional uses; conditions governing applications; procedures. To hear and decide conditional uses as the board is specifically authorized to pass on by the terms of this chapter; to decide such questions as are involved in determining whether a conditional use should be granted, including the interpretation and classification of such uses which may not be specifically listed as conditional uses in this chapter; to grant conditional uses with such conditions and safeguards as are appropriate under this chapter, or to deny conditional uses when not in harmony with the purpose and intent of this chapter.

(1)

Application for a conditional use shall be filed with the secretary of the board of adjustment on forms provided by the secretary at least 21 days in advance of the public hearing, and shall be accompanied by:

a.

A nonrefundable application fee of $250.00.

b.

A vicinity map showing location of the site in relation to the surrounding area and zoning of the site and adjacent property.

c.

A legal description of the property.

d.

A site plan, drawn to scale, showing the location, use and dimensions of all existing and proposed structures; points of ingress and egress to the property; all public and private roads; off-street parking and loading areas; buffers and greenbelts; and signs.

e.

A conditional use application for a manufactured home park shall be accompanied by a site plan and supplementary information as required in article IV.

f.

Any supplemental information which will assist the board in reviewing the conditional use request.

(2)

Upon receipt of the completed application and appropriate fee, the secretary shall immediately place the request upon the calendar for hearing, and shall cause notices stating the time, place and object of the hearing to be served personally or by mail addressed to the party making the request for appeal and to all adjoining property owners as given in the last assessment roll. The notices shall be given at least 14 days in advance of the public hearing.

(3)

A conditional use shall not be granted by the board of adjustment unless and until:

a.

The board finds that it is empowered under this section described in the application to grant a conditional use, and that the granting of the conditional use will not adversely affect the public interest.

b.

The board determines compliance with the specific rules governing individual conditional uses and considers the potential arrangement and provisions for the following:

1.

Satisfactory ingress and egress to property and proposed structures thereon with particular reference to automotive and pedestrian safety and convenient traffic flow control;

2.

Provision of off-street parking and loading areas where required, with particular attention to the items in subsection (c)(3)b.1 of this section and the economic, noise, glare, and odor effects of the special use on adjoining properties in the area;

3.

Utilities, with reference to locations, availability and compatibility;

4.

Buffering with reference to type, location, and dimensions;

5.

Signs, if any, and proposed exterior lighting with reference to glare, traffic safety, economic effect, and compatibility and harmony with properties in the district;

6.

Location, use, plan, elevations and dimensions of each building or structure to be constructed;

7.

The location, dimension, and arrangement of all open spaces, yards, accessways, entrances, exits, off-street parking facilities, pedestrian ways, location and width of roads, streets and sidewalks.

8.

General compatibility with adjacent properties and other property in the district.

(4)

All conditional uses are subject to section 44-554.

(5)

If a conditional use is granted, the use must be utilized within 180 days of the grant. If not utilized within 180 days, the conditional use lapses and the building, structure, mobile home or manufactured home or property shall not thereafter be used except in conformity with the regulation of the district in which the property is located.

(6)

If a conditional use is denied or lapses, a similar request for the same property may not be filed within one year of the denial or lapse.

(Ord. of 4-15-2008, § 10-4)

The board of adjustment may require the conduct of any use, conforming or nonconforming, which results in unreasonable noise, smoke, gas, vibration, fumes, dust, fire, radio interference, or explosion hazard or nuisance to surrounding property to be modified or changed to abate such hazard to health, comfort and convenience. The board of adjustment may direct the building inspector to issue an abatement order, but such order may be directed only after a public hearing by the board, notice of which shall be sent by registered mail to the owners or operators of the property on which the use is conducted in addition to due notice of advertisement in a newspaper of general circulation. A hearing to consider issuance of an abatement order shall be held by the board either upon petition signed by any person affected by the hazard or nuisance or upon the initiative of the board. An abatement order shall be directed by the board only upon reasonable evidence of hazard or nuisance and such order shall specify the date by which the hazard or nuisance shall be abated.

(Ord. of 4-15-2008, § 10-5)

(a)

In exercising its powers, the board of adjustment may, in conformity with the provisions of this chapter, reverse, affirm, or modify in whole or in part an order, requirement, decision, or determination appealed from, and to that end shall have all the powers of the zoning administrator.

(b)

The concurring vote of four members of the board shall be necessary to reverse any order, requirements, 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, or to effect any variation of this chapter.

(Ord. of 4-15-2008, § 10-6)

(a)

Any party aggrieved by any final judgement or decision of the board of adjustment may, within 15 days thereafter appeal, therefrom to the county circuit court, by filing with both the board and the circuit court a written notice of appeal specifying the judgement or decision from which the appeal is taken. An appellant will be required to pay a filing fee in the county circuit court at the time that notice of appeal is filed with that court. In the case of an appeal, the board shall cause a transcript of the proceedings in the case to be certified to the court to which the appeal is taken, and the case in such court shall be tried de novo.

(b)

When appeal is taken to the circuit court, a transcript of the proceedings before the board of adjustment shall include the minutes of the proceeding, together with true and correct copies of all exhibits, documents or other evidence presented for consideration by the board. The board is not required to retain the services of a stenographer or court reporter to record any proceedings before the board.

(Ord. of 4-15-2008, § 10-7)