A.   Administrative Appeals: Appeals to the Commission concerning interpretation or administration of this title may be filed by any affected person aggrieved by a written decision of the administrator. Such appeal shall be filed within twenty (20) days after the written decision of the administrator by filing with the administrator and with the commission a notice of appeal specifying the grounds upon which the appeal is based. The administrator shall transmit to the commission all the documents and other evidence constituting the record upon which the appeal is based. If the administrator’s decision was in any degree based upon information presented in a hearing, the appealing party shall, at its own expense, provide to the commission a professionally transcribed verbatim written record of the hearing.

   B.   Appeal To Board: Any person having an interest in real property adversely affected by a written decision of the commission interpreting, applying, or administering this title, or by the issuance or denial of an amendment, rezone, special use permit or variance, may appeal the written decision to the board of county commissioners within twenty (20) days from its rendering.

      1.   Appeal Procedure:

         a.   Filing Notice: An appeal challenging the decision of the commission is taken by filing a notice of appeal with the clerk of the board of county commissioners and with the development services department administrator. The notice of appeal shall clearly specify the grounds for the appeal, including the particular portion of the written decision the appealing party believes the commission rendered in error. The party appealing a decision by the commission shall, at its own expense, provide to the board a professionally transcribed verbatim written record of the hearing upon which the commission's decision was based.

         b.   Effect Of Appeal: The filing of a notice of appeal stays all proceedings in furtherance of the decision made by the Commission until the appeal is finally disposed of.

         c.   Presentation: The notice of appeal shall be presented to the board of county commissioners at its next regular meeting.

         d.   Action By Board Of County Commissioners: Upon presentation of a notice of appeal, the board of county commissioners shall set the appeal for a hearing and shall notify the appellant in writing of the time and place for oral argument on the appeal. Within thirty (30) days after the hearing, the board shall render a decision, upholding in whole or in part, or overruling, the decision of the commission.

         e.   Content Of Decision: The decision of the board of commissioners shall specify in writing:

            (1)   The ordinance and standards used in evaluating the appeal;

            (2)   The reasons for approval or denial; and

            (3)   The action, if any, that the appellant could take to obtain a favorable decision.

         f.   Public Hearing Required: The board shall not approve an amendment or rezone, grant a special use permit or variance previously rejected by the Commission unless the board first holds a public hearing preceded by providing notice as required by section 11-7-6 of this title. (Ord. 2009-05, 9-28-2009; amd. Ord. 2022-07, 8-1-2022)

The commission may authorize in specific cases such variance from the terms of this title as will not be contrary to the public interest where, owing to special conditions, a literal enforcement of the provisions of this title would result in unnecessary hardship. No nonconforming use of lands, structures or buildings in other zones shall be considered grounds for issuance of a variance. Variances shall not be granted on the grounds of convenience or profit.

   A.   Application And Standards For Variances: A variance from the terms of this title shall not be granted by the commission unless and until a written application for a variance is submitted to the administrator and the commission containing:

      1.   Name, address and phone number of applicant(s);

      2.   Legal description of property;

      3.   Description of nature of variance requested; and

      4.   A narrative statement demonstrating that the requested variance conforms to the following standards:

         a.   That special conditions and circumstances exist which are not applicable to other lands, structures or buildings in the same zone;

         b.   That a literal interpretation of the provisions of this title would deprive the applicant of rights commonly enjoyed by other properties in the same zone under the terms of this title;

         c.   That special conditions and circumstances do not result from the actions of the applicant;

         d.   That granting the variance requested will not confer on the applicant any special privilege that is denied by this title to other lands, structures or buildings in the same zone; and

         e.   Payment of a filing fee in an amount as set by the Gem County board of commissioners by resolution.

A variance shall not be granted unless the commission makes specific findings of fact based directly on the particular evidence presented to it which support conclusions that the above mentioned standards and conditions have been met by the applicant.

   B.   Supplementary Conditions And Safeguards: Under no circumstances shall the commission grant a variance to allow a use not permissible under the terms of this title in the zone involved, or any use expressly or by implication prohibited by the terms of this title in said zone. In granting any variance, the commission may prescribe appropriate conditions and safeguards in conformity with this title. Violation of such conditions and safeguards, when made a part of the terms under which the variance is granted, shall be deemed a violation of this title.

   C.   Public Hearing: Upon receipt of the application for a variance, the commission shall hold a public hearing, publish notice in a newspaper and give written notice to all parties as required for special use permits.

   D.   Action By The Commission: Within thirty (30) days after the public hearing the commission shall either approve, conditionally approve or disapprove the request for a variance.

Upon granting or denying an application the commission shall specify:

      1.   The ordinance and standards used in evaluating the application;

      2.   The reasons for approval or denial; and

      3.   The actions, if any, that the applicant could take to obtain a variance.

   E.   Notification Of Applicant: Within ten (10) days after a decision has been rendered, the administrator shall provide the applicant with written notice of the action on the requested variance. (Ord. 2009-05, 9-28-2009)

An "affected person" shall mean one having an interest in real property which may be adversely affected by the issuance or denial of a permit authorizing the development.

Any affected person may at any time prior to final action on rezone, special use, or variance permit, if no hearing has been held on the application, petition the commission or board in writing to hold a hearing pursuant to Idaho Code section 67-6512; provided, however, that if twenty (20) affected persons petition for a hearing, the hearing shall be held.

After a hearing, the commission or board may:

   A.   Grant or deny a permit; or

   B.   Delay such a decision for a definite period of time for further study or hearing.

An affected person aggrieved by a decision may within twenty eight (28) days after all remedies have been exhausted under local ordinances seek judicial review under the procedures provided by title 67, chapter 52, Idaho Code. (Ord. 2009-05, 9-28-2009)