(a)

Composition and appointment. There shall be a board of adjustment, which shall consist of five (5) members, and one (1) alternate, to be appointed by the council. All members shall serve without pay, be at all times residents of the city, shall hold no other elected city public office and shall not be an employee of the city. The alternate member shall attend the meetings of the board, and may participate in the discussion of any matter, but shall only vote on any matter when a member is absent or cannot vote on a matter. The city manager or a designee shall attend meetings in an advisory capacity only and shall not have a vote in its deliberations.

(b)

Term of office and vacancies. The term of appointive members shall be two (2) years. Members of the board shall serve at the pleasure of the city council and may be removed by the council, without cause. Any member who fails to attend three (3) consecutive meetings, or six (6) meetings in any two-year period, shall automatically forfeit said membership, unless any such absence shall be excused by the council. Any vacancy shall be filled for the unexpired term of the member whose place has become vacant.

(Ord. No. 85-8, § 2, 5-21-85; Ord. No. 91-4, § 5, 5-7-91; Ord. No. 97-13, § 1, 7-1-97; Ord. No. 2006-10, § 1, 5-2-06)

(a)

Officers. The board shall elect from its membership a chairperson and vice-chairperson, who shall serve for one (1) year or until re-elected or a successor is elected. The vice-chairperson shall take on all the duties and authority of the chairperson in his or her absence at official meetings of the board. The city clerk shall provide a secretary to the board as provided by the City Charter. The city attorney shall provide legal services to the board as necessary.

(b)

Rules of procedure. The board shall have authority to adopt rules of procedure necessary to govern and conduct its affairs in compliance with laws and procedures established by the city council.

(c)

Meetings. Meetings shall be held at the call of the chairperson and at such other times as the board may determine. The board shall hold at least one (1) regularly scheduled meeting each month on a day to be determined by the board; provided, that no meeting shall be required when the board has no business to conduct under the terms of this chapter. Meetings that are not regularly scheduled shall require at least forty-eight (48) hours' notice to each member. The board shall have the power to take testimony under oath and to compel the attendance of witnesses.

(d)

Quorum constituted. A quorum for the transaction of business by the board shall consist of three (3) members, and all official actions of the board shall require a prevailing vote thereon by a majority of those present.

(e)

Minutes. The city clerk shall keep minutes of the board's proceedings, showing the vote of each member upon each question or, if absent, indicating such fact, all of which shall be filed in the office of the city clerk and shall be a public record.

(f)

Conflict of interest. Any member of the board who has a conflict of interest with respect to a matter before the board shall file notification of such with the city clerk as required by law.

(g)

Decision to be provided to applicant. Each decision of the board shall be sent to the applicant.

(Ord. No. 85-8, § 2, 5-21-85; Ord. No. 91-4, § 5, 5-7-91; Ord. No. 97-13, §§ 2, 3, 7-1-97; Ord. No. 2006-10, § 1, 5-2-06)

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

(1)

To hear and decide appeals where it is alleged there is error in any final decision made by the city manager, or his or her designee, in the administration and enforcement of this chapter.

(2)

To authorize upon appeal such variance from the provisions of this chapter as will not be contrary to the public interest when, owing to special conditions, a literal enforcement of the provisions will result in unnecessary and undue hardship. In order to authorize any variance from the terms of this chapter, the board must find that:

a.

Special conditions and circumstances exist which are peculiar to the land, structure, or building involved and which are not applicable to other lands, buildings, or structures in the same zoning district;

b.

The special conditions and circumstances do not result from the actions of the applicant;

c.

Granting the variance requested will not confer on the applicant any special privilege that is denied by this chapter to other lands, buildings, or structures in the same zoning district;

d.

Literal interpretation of the provisions of the chapter would deprive the applicant of rights commonly enjoyed by other properties in the same zoning district under the terms of the chapter and would work unnecessary and undue hardship on the applicant;

e.

The variance granted is the minimum variance that will make possible the reasonable use of the land, building, or structure;

f.

The granting of the variance will be in harmony with the general intent and purpose of the chapter and that such variance will not be injurious to the area involved or otherwise detrimental to the public welfare;

g.

There will be full compliance with any additional conditions and safeguards, which the board may prescribe, including but not limited to reasonable time limits within which the action for which variance is required shall be begun or completed, or both;

h.

The variance is authorized only for height, area, size of structure, size of yards and whenever specifically authorized under other provisions of this chapter;

i.

Establishment or expansion of a use otherwise prohibited or not permitted shall not be allowed by variance;

j.

A variance shall not be granted because of the presence of nonconformities in the zoning classification or district or adjoining zoning classifications or districts.

(3)

To hear and decide petitions involving proposed changes of nonconforming uses, in accordance with the provisions of article IX of this chapter.

(4)

To authorize upon appeal such variance from the provisions of this Code of Ordinances pertaining to the height of fences, as will not be contrary to the public interest when, owing to special conditions, a literal enforcement of the provisions will result in unnecessary and undue hardship. In order to authorize any variance hereunder, the board must find that the application meets the variance requirements of subsection (b) pertaining to variances from the provisions of this chapter.

(Ord. No. 85-8, § 2, 5-21-85; Ord. No. 91-4, §§ 5, 6, 5-7-91; Ord. No. 93-14, § 9, 10-5-93; Ord. No. 2003-14, §§ 1, 2, 7-1-03; Ord. No. 2006-10, § 1, 5-2-06)

(a)

Under no circumstances shall the board of adjustment grant a variance or approval of use so as to permit a use not specifically listed as permitted or permissible as a conditional use within this chapter for the particular zoning district involved; nor shall the board grant or approve any density of development in excess of that specified or otherwise required within this chapter for the particular zoning district involved.

(b)

In its consideration of an appeal, request for variance, or request for a change of a nonconforming use, the board shall not utilize the existence of nonconforming uses of neighboring lands, buildings, or structures in the same or adjacent zoning districts as grounds for the granting of the appeal, request for variance, or request for change of nonconforming use; nor shall the board utilize any permitted use of lands, buildings, or structures within the same or adjacent zoning districts as a basis for approval.

(Ord. No. 85-8, § 2, 5-21-85; Ord. No. 91-4, § 5, 5-7-91; Ord. No. 2006-10, § 1, 5-2-06)

(a)

Hearing required. Before making its decision on any appeal, request for variance, or request for a change of nonconforming use, the board shall hold a public hearing thereon.

(b)

Notification requirements. The following notification procedures shall be utilized with respect to appeals, requests for variances, and requests for changes of nonconforming uses:

(1)

Appeals, requests for variances, and requests for changes of nonconforming uses found to be filed in proper form shall be numbered serially, docketed, and placed upon the calendar of the board. Having thus been established, the calendar of appeals, petitions and public hearings to be considered or conducted at each public hearing shall be posted as soon as practical where public notices are regularly posted by the city; and

(2)

Notice of the public hearing shall be provided in accordance with this chapter.

(c)

Conduct of hearing Any interested person shall have the right to submit oral or written testimony at the public hearing. All testimony and exhibits submitted at the hearing, including the application of appeal, request for variance, or request for a change of nonconforming use, shall be incorporated into the application file and shall be considered a part of the record on the application. Evidence that is immaterial, irrelevant, or unduly repetitious may be excluded. The hearing may be adjourned and continued to a date established by public announcement at said hearing.

(Ord. No. 85-8, § 2, 5-21-85; Ord. No. 91-4, § 5, 5-7-91; Ord. No. 2006-10, § 1, 5-2-06; Ord. No. 2007-03, § 2, 4-3-07)

A decision by the board of adjustment with respect to any matter upon its calendar shall be rendered within sixty (60) days following the closing of the public hearing thereon. All decisions of the board shall be made in open session and the motion embodying the decision approving, denying, or dismissing any application shall not be valid unless it is incorporated into the minutes of the meeting at which such action is taken. A record of all actions taken by the board of adjustment shall be maintained within the office of the city clerk.

(Ord. No. 85-8, § 2, 5-21-85; Ord. No. 91-4, § 5, 5-7-91; Ord. No. 2006-10, § 1, 5-2-06)

In exercising its powers the board may, in conformity with the provisions of this chapter, reverse or affirm, wholly or partly, or modify any order, requirement, decision, or determination of the city manager, or his or her designee, in the enforcement or interpretation of this chapter, as appealed. The board may direct the issuance of a permit, and it shall be the duty of the city manager, or his or her designee, to carry out the decision of the board in the absence of further appeal.

(Ord. No. 85-8, § 2, 5-21-85; Ord. No. 91-4, § 5, 5-7-91; Ord. No. 2006-10, § 1, 5-2-06)

It shall be unlawful for an applicant to proceed with any action, which has been disapproved or denied by the board, and it shall be equally unlawful for an applicant to proceed with any action contrary to that specifically approved by the board, including any conditions and safeguards the board may impose.

(Ord. No. 85-8, § 2, 5-21-85; Ord. No. 91-4, § 5, 5-7-91; Ord. No. 2006-10, § 1, 5-2-06)

An application for the reconsideration or rehearing of an appeal or petition may be made in the same manner as provided for an original consideration or hearing. However, no appeal or petition by applicant requesting the same relief or approval for the same property shall be accepted by the board for reconsideration or rehearing for a period of twelve (12) months following the date of any action taken by the board in the matter if, from the record, it shall appear that there has been no substantial change in facts, evidence, or conditions.

(Ord. No. 85-8, § 2, 5-21-85; Ord. No. 91-4, § 5, 5-7-91; Ord. No. 2006-10, § 1, 5-2-06)

A party seeking judicial review of a decision of the board of adjustment shall have thirty (30) calendar days from the date of the order which resulted in the approval or denial by the board of adjustment to bring the appropriate legal action to circuit court.

(Ord. No. 85-8, § 2, 5-21-85; Ord. No. 91-4, § 5, 5-7-91; Ord. No. 97-13, § 4, 7-1-97; Ord. No. 2005-02, § 6, 2-15-05; Ord. No. 2006-10, § 1, 5-2-06; Ord. No. 2021-02, § 1, 5-4-2021)