(a)

There is hereby established a zoning board of appeals consisting of five members appointed by the mayor, by and with the consent of the city council, one appointed for a term of one year; two appointed for two years; and two appointed for three years; subsequent terms shall be for three years. The members shall be citizens (not holding any elective office) of the United States and residents of and owners of real property in the city. Their compensation shall be as established by the city council.

(b)

The board shall perform its duties and exercise its powers as provided by law in such a way that the objectives of this chapter shall be observed, public safety secured and substantial justice done.

(Code 1969, § 5.281; Code 1977, § 28-491)

The board shall elect its own secretary who shall submit a copy of all of the board's actions to the city clerk. The board shall annually elect its own chairman and vice-chairman.

(Code 1969, § 5.282; Code 1977, § 28-492)

(a)

Meetings of the board shall be held at the call of the chairman and at such other times as the board may determine. Meetings may be called at the request of three members of the board. The board shall keep minutes of its proceedings showing the vote of each member upon every question decided by it, or if any member is absent or fails to vote indicating such fact. Statement of the facts found by the board shall be included in the minutes of each case heard or considered by it. The reason for recommending or denying variances shall appear in the minutes. The reason for recommending or denying an exception as herein provided or for expressing a specific interpretation of this chapter shall also appear in the minutes. In every instance, a statement of the facts upon which such recommendations are based shall appear in the minutes.

(b)

The minutes of the board shall be open to public examination at reasonable hours.

(Code 1969, § 5.283; Code 1977, § 28-493)

The board shall adopt general rules and regulations governing its procedure, and shall make rules for the filing of appeals and other matters requiring its attention, which shall not cause unreasonable delays in the transaction of its business. Hearings shall be held on all appeals. The board shall cause to be given notice of such hearing setting forth the time and place and the nature of the appeal not less than 15 days to advance of such hearing and in the official paper of the city and by other means which the board determines to be necessary. In addition, the board shall cause to be given additional notice to all owners of property of record as required by state law.

(Code 1969, § 5.284; Code 1977, § 28-494)

(a)

The board shall hear and decide appeals from and review any order, requirements, decision or determination made by any administrative official charged with the enforcement of this chapter. They shall also hear and decide all matters referred to them or upon which they are required to pass upon by this chapter. The concurring vote of four members of the board shall be necessary to reverse any order, requirement, decision or determination of any such administrative official, or to decide in favor of the applicant any matter upon which they are required to pass under this chapter or to effect any variation in such chapter.

(b)

Appeals to the board may be taken by any person aggrieved by or any officer, department, board or bureau of the city affected by a decision of the building inspector or administrative official charged with the enforcement of this chapter. Such appeal shall be taken in the manner prescribed by the board by general rule, by filing with the building inspector and with the board, not later than ten days after the date of the building inspector's decision, which is appealed from, a notice of appeal specifying the ground thereof. The building inspector shall forthwith transmit to the board all papers constituting the records upon which the action appealed from is taken.

(Code 1969, § 5.285; Code 1977, § 28-495)

The board shall decide all applications and appeals within 30 days after the final hearing thereon. A copy of the board's decision shall be transmitted to the applicant or appellant and to the building inspector. Such decision shall be binding upon the building inspector and observed by him, and he shall incorporate the terms and conditions of the same in the permit to the applicant or appellant whenever a permit is authorized by the board. A decision of the board shall not become final until the expiration of five days from the date such decision is made unless the board shall find the immediate effect of such decision is necessary for the preservation of property or personal rights and shall so certify on the records.

(Code 1969, § 5.286; Code 1977, § 28-496)

(a)

An appeal stays all proceedings in furtherance of the action appealed from, unless the officer from whom the appeal is taken 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 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 officer from whom the appeal is taken and on good cause shown.

(b)

The board may reverse or affirm, wholly or in part, or may modify the order, requirement, decision or determination appealed from, and shall make such order, requirement, decision or determination as in its opinion ought to be made in the premises, and to that end shall have all the powers of the officers from whom the appeal is taken.

(Code 1969, § 5.287; Code 1977, § 28-497)

A fee in the amount established in the schedule of fees adopted by the council shall be paid to the building inspector or administrative official at the time the notice of appeal is filed, which the building inspector or administrative official shall forthwith pay over to the city treasurer to the credit of the general fund of the city.

(Code 1969, § 5.288; Code 1977, § 28-498)

(a)

Advisory opinions. To render an advisory decision, or opinion, on any matter referred to it by the building inspector, whether or not such matter is expressly or clearly implied by the terms of this chapter as being within the scope of his power and authority to dispose of, when in his judgment, such action would be necessary or helpful in maintaining the spirit and intent of this chapter.

(b)

Variances. The board of appeals, as herein created, is a body of limited powers. Where there are practical difficulties or unnecessary hardships in the way of carrying out the strict letter of this chapter, the board shall have powers in passing upon appeals to vary or modify any of the provisions of this chapter relating to the construction, structural changes in equipment or alteration of buildings or structures, so that the spirit of the chapter shall be observed, public safety secured and substantial justice done.

(c)

Variation in yards, lot area and percentage of lot coverage. To permit variation or modification of yard, lot area and percentage of lot coverage, and floor area requirements of this chapter as may be necessary to secure an appropriate improvement of a parcel of land which is of such size, shape or dimension, or which has such peculiar or exceptional geographical, or topographical conditions that it cannot be appropriately improved without such variation or modification, provided, that the purpose and spirit of this chapter shall be observed, public safety secured and substantial justice done.

(d)

Off-street parking variations. Permit a variation or modification in the required location of off-street parking facilities, if after investigation by the board, it is found that such variation is necessary to secure an appropriate development of a specific parcel of land which has such peculiar or exceptional geographical or topographical conditions, or is of such a size, shape or dimension that it cannot reasonably supply, at that location, the total amount of off-street parking spaces as is required for the particular use, as long as the remaining required off-street parking spaces are supplied within a distance of not more than 500 feet of the building.

(e)

Restrictions on board action. No variance in the provisions or requirements of the chapter shall be authorized by the board unless the board finds evidence that all the following facts and conditions exist:

(1)

That there are exceptional or extraordinary circumstances or conditions applying to the property in question as to the intended use of the property that do not apply generally to other properties in the same zoning district.

(2)

That such variance is necessary for the preservation and enjoyment of a substantial property right similar to that possessed by other properties in the same district and in the same vicinity. The possibility of increased financial return shall not of itself be deemed sufficient to warrant a variance.

(3)

That the authorizing of such variance will not be of substantial detriment to adjacent property, and will not materially impair the intent and purpose of this chapter or the public interest.

(4)

That the condition or situation of the specific piece of property, or the intended use of said property, for which the variance is sought, is not of so general or recurrent a nature as to make reasonably practicable the formulation of a general regulation for such conditions or situations.

(Code 1969, § 5.289; Code 1977, § 28-499)

The board shall have authority to make exceptions as specifically set forth in this chapter, subject to the conditions specifically described.

(1)

Lots divided by district boundaries. Where a district boundary line divides a lot of record, the board shall have power to permit the extension of a use permitted on the less restricted portion of such a lot to that portion of said lot which lies in the more restricted district, provided that such extension shall be made for a distance of not to exceed 50 feet beyond the district boundary line in any case.

(2)

Lots abutting a different zoning district. Permit an exception in the use and location of buildings on any lot abutting a different zoning district, provided that the use or location shall not have an undesirable effect upon the more restricted district and provided further, that the yard requirements cannot be less than 50 percent of the requirements for the more restricted district, and provided further, that the variation shall not extend more than 50 feet into the more restricted district.

(3)

Height of building as originally planned. Permit the erection of a building to its full height or use, as originally planned, when foundations and structural members are designed to carry such building higher, when said building has been partially erected previous to the adoption of this chapter.

(4)

Boardinghouse and lodginghouses. Permit a boardinghouse or lodginghouse in an R-2 district, provided:

a.

Two persons shall be permitted for each sleeping room in excess of the sleeping rooms required of the family.

b.

Parking space on the lot shall be provided for each person lodging at the house in addition to the family unit.

c.

No sign shall be displayed on the premises other than one card, which may be displayed in the window indicating boarding or lodging.

(5)

Home occupation in R-2 districts. Permit a home occupation, as herein defined, in a dwelling in an R-2 district, provided:

a.

That such use shall be conducted entirely within the dwelling and shall occupy only one room on the ground floor which shall not be greater than 200 square feet in area.

b.

That there shall be no display or advertising or other outward indication of such special use other than one sign not exceeding two square feet in area bearing the name and occupation, word only, of the practitioner.

c.

That in other respects the building and premises shall be so treated and the permitted activity so conducted, that the use of such lot will be in harmony with the character of the district in which it is located.

(6)

Project sign. The board may grant a temporary permit for a freestanding ground sign, to be used during the development of a project for advertising the project, for a period of not more than one year. Such sign shall not be greater than 300 square feet in size and shall be set back from any street line a distance of not less than 50 feet.

(7)

Building size reduction. Permit the erection of a commercial building of a size less than that required in sections 44-546, 44-582, 44-667 and 44-709 for businesses which, because of their specific characteristics, such as real estate offices, outdoor sales offices, service shops or businesses of a similar nature, may not require the floor space as herein provided.

(8)

Repair or storage facilities in C-1 and C-2 districts. Permit incidental facilities for repair or storage in a C-1 and C-2 district, provided:

a.

Not more than ten percent of the floor area of the building shall be used for repair and/or storage facilities.

b.

No operation requiring a motive power of over five horsepower shall be permitted.

c.

Repairs and minor accessory operations to fit the merchandise to the customers' specific needs only shall be permitted.

(9)

Extension of hours of work. Permit the extension of hours of work in M-1 districts, when such extension is necessary because of an emergency, and under such conditions and safeguards as will protect the neighboring residential districts from unnecessary disturbances.

(10)

Circuses, fairs, carnivals and similar uses. Permit a circus, fair, carnival and similar uses in any district under the following conditions:

a.

When engaged in by schools, churches, fraternal societies and similar nonprofit organizations as an accessory use for the sole purpose of raising money for the financial support of such institutions in pursuit of their natural functions; provided, that such uses are confined to the land and buildings normally used and occupied by such institutions.

b.

Such use and occupancy is temporary and/or seasonal only.

c.

Such use and occupancy is not detrimental to adjacent surrounding property.

d.

Such use and occupancy is not disturbing to the public peace and tranquility.

e.

Such use and occupancy will not create undue traffic and congestion.

f.

Permits for such uses may be granted for periods not to exceed eight days consecutively and may be renewable for not more than eight days.

(11)

No authority for change in use. The board shall have no authority to authorize a change in the use of any parcel of property or to change the height requirements in this chapter, other than is herein specifically specified.

(Code 1969, § 5.290; Code 1977, § 28-500)

The board shall interpret the provisions of this chapter in such a way as to carry out the intent and purpose of the plan, as shown upon the map fixing the several zoning districts accompanying and made a part of this chapter, in those cases where the street layout actually on the ground varies from the street layout as shown on the aforesaid map.

(Code 1969, § 5.291; Code 1977, § 28-501)

Editor's note— The zoning map is on file in the office of the city clerk.