The board of zoning adjustment established by Ordinance No. 35-66 passed in 1966, and continued by Ordinance No. 3-70 passed in 1970, and Ordinance No. 35-70 passed in 1970, and Ordinance No. 15-82 passed in 1982, is continued by this ordinance. The board is known as the Henderson City Board of Zoning Adjustment. The board has the powers, duties, and responsibilities as set forth in KSA Chapter 100.

(a)

Jurisdiction of the board of adjustment for the city shall be within the incorporated limits of the city, as exists or is amended in the future.

(b)

The membership, appointment, and term of office of the board of adjustment is as follows: The board shall consist of five (5) citizen members, one (1) of which shall be citizen member of the planning commission and resident of the City of Henderson. The Mayor of Henderson shall appoint the members of the board with the approval of the City of Henderson legislative body. The term of office of members first appointed shall be staggered so that a proportionate number serve one (1), two (2), three (3), and four (4) years respectively, with later appointments or reappointments continuing the staggered pattern.

(c)

Reimbursement for expenses lawfully incurred by a member of the board of adjustment in the performance of his duties may be authorized by formal action of the city commission.

(d)

The board of adjustment shall have the power to receive, hold, administer and disburse funds which it may lawfully receive from any source. Prior to the beginning of each fiscal year the board may adopt a budget which will be presented to the board of commissioners for the purpose of receiving funds for the cost of its operation.

(e)

Expenditures of such appropriations and funds shall be in accordance with the formal action of the board pursuant to the regulations lawfully established. Administration of the board shall be as described in KRS Ch. 100 and may be amended in the future.

(f)

Vacancies on the board of adjustment shall be filled within sixty (60) days by the appointing authority. If the appointing authority fails to act within that time, the planning commission shall fill the vacancy. When a vacancy occurs other than through expiration of the term of office, it shall be filled for the remainder of the term. All appointments shall continue until the successors shall have qualified.

(g)

All members of the board of adjustment shall, before entering upon their duties, qualify by taking the oath of office prescribed by Section 228 of the Constitution of the Commonwealth of Kentucky before any judge, notary public, clerk of a court or justice of the peace within the district or county in which he/she resides.

(h)

Any member of the board of adjustment may be removed by the appropriate appointing authority for inefficiency, neglect of duty, malfeasance or conflict of interest. Any appointing authority who exercises the power to remove a member of the board of adjustments shall submit a written statement to the commission setting forth the reasons for removal, and the statement shall be read at the next meeting of the board of adjustment which shall be open to the general public. The member so removed shall have the right to appeal from the removal to the circuit court of the county in which he/she resides.

(i)

The board of adjustment shall annually elect a chairman, vice-chairman and secretary and any other such officers it deems necessary and any officer shall be eligible for reelection at the expiration of his term.

(j)

The board of adjustment shall conduct meetings at the call of the chairman who shall give written notice or oral notice to all members of the board at least seven (7) days prior to the meeting, which notice shall contain the date, time and place for the meeting and the subjects which will be discussed.

(k)

A simple majority of the total membership of a board of adjustment as established by regulation or agreement shall constitute a quorum. Any member of the board of adjustment who has any direct or indirect financial interest in the outcome of any question before the body shall disclose the nature of the interest and shall disqualify himself/herself from voting on the questions.

(l)

The board of adjustment shall adopt bylaws for the transaction of business and shall keep minutes and records of all proceedings including regulations, transactions, findings, and determinations and the number of votes for and against each question, and if any member is absent or abstains from voting, indicating the fact, all of which shall immediately after adoption, be filed in the office of the board. A transcript of the minutes of the board of adjustment meeting shall be provided if requested by a party, at the expense of the requesting party, and the transcript shall constitute the record.

(m)

The board of adjustment may employ or contract with planners or other persons as it deems necessary to accomplish its assigned duties.

(n)

The board of adjustment shall have the power to issue subpoena to compel witnesses to attend its meetings and give evidence bearing upon the questions before it. The sheriff shall serve such subpoenas. The circuit court may, upon application by the board, compel obedience to such court or such subpoena by proceedings of contempt.

(o)

The chairman of the board of adjustments shall have the power to administer an oath to witnesses prior to their testifying before the board on any issue.

(p)

The board shall have the power to hear and decide applications for conditional use permits to allow the proper integration into the community of uses which are specifically named in the zoning regulations which may be suitable only in specific locations in the zone only if certain conditions are met.

(1)

The board may approve, modify, or deny any application for a conditional use permit. If it approves such permits it may attach necessary conditions such as time limitations, requirements that one (1) or more things be done before the request can be initiated, or conditions of a continuing nature. Any such conditions shall be recorded in the board's minutes and on the conditional use permit along with a reference to the specific section in the zoning regulation listing the conditional use under consideration. The board shall have the power to revoke conditional use permits or variances for noncompliance with the condition thereof. Furthermore, the board shall have a right of action to compel offending structures or uses removed at the cost of the violator and may have judgment in personam for such cost.

(2)

Granting of a conditional use permit does not exempt the applicant from complying with all of the requirements of building, housing and other regulations.

(3)

In any case where a conditional use permit has not been exercised within the time limit set by the board, or within one (1) year, if no specific time limit has been set, such conditional use permit shall not revert back to its original designation unless there has been another public hearing. "Exercised" as set forth in this section shall mean that binding contracts for the construction of the main building or other improvements have been met or, in the absence of contracts, that the main building or other improvement is under construction to a substantial degree, or that prerequisite conditions involving substantial investment, under contract, in development are completed. When construction is not a part of the use, "exercised" shall mean that the use is in operation in compliance with the conditions as set forth in the permit.

(4)

The administrative official shall review all conditional use permits except those for which all conditions have been permanently satisfied, at least once annually and shall have the power to inspect the land or structure where the conditional use is located in order to ascertain that the landowner is complying with all of the conditions listed on the conditional use permit. If the landowner is not complying with all of the conditions listed on the conditional use permit, the administrative official shall report the fact in writing to the chairman of the board of adjustments. The report shall state specifically the manner in which the landowner is not complying with the conditions on the conditional use permit, and a copy of the report shall be furnished to the landowner at the same time it is furnished to the chairman of the board of adjustments. The board shall hold a hearing on the report within a reasonable time and notice of the time and place of the hearing shall be furnished to the landowner at least one (1) week prior to the hearing. If the board of adjustments finds that the facts alleged in the report of the administrative official are true and that the landowner has taken no steps to comply with them between the date of the report and the date of the hearing, the board of adjustments may authorize the administrative official to revoke the conditional use permit and take the necessary legal action to cause the termination of the activity on the land which the conditional use permit authorizes.

(5)

Once the board of adjustment has completed a conditional use permit and all the conditions required are such type that they can be completely and permanently satisfied, the administrative official upon request of the applicant may, if facts warrant, make a determination that the conditions have been satisfied, and note the conclusion in the margin of the conditional use permit which is on file in the office of the code administrator. Thereafter said use, if it continues to meet the other requirements of the regulations, will be treated as a permitted use.

(6)

When an application is made for land located within or abutting any residential zoning district, written notice shall be given at least fourteen (14) days in advance of the public hearing on the application to the applicant, administrative official, the mayor and city clerk, an owner of every parcel of property adjoining the property to which the application applies. Written notice shall be by first class mail with certification by the board's secretary or other officer that the notice was mailed. It shall be the duty of the applicant to furnish to the board the name and address of each parcel of property as described in this subsection. Records maintained by the property valuation administrator may be relied upon conclusively to determine the identity and address of said owner. In the event such property is in condominium or cooperative forms of ownership, then the person notified by mail shall be the president or chairperson of the owner group which administers property commonly owned by the condominium or cooperative owners. A joint notice may be mailed to two (2) or more co-owners of an adjoining property who are listed in the property valuation records as having the same address.

(7)

When any property within the required notification area for a public hearing upon a conditional use permit application is located within an adjoining city, county, or planning unit, notice of the hearing shall be given at least fourteen (14) days in advance of the hearing by first class mail to that unit's planning commission. If the adjoining property is not part of a planning unit, notice shall be given to the mayor of the city in which the property is located or, if the property is in an unincorporated area, notice shall be given to the judge/executive of the county in which the property is located.

(q)

The board shall have the power to hear and decide on applications for variances. The board may impose any reasonable conditions or restrictions on any variance it decides to grant. In the granting of a variance, in no instance shall any permanent structure be permitted to be placed in a public utility or drainage area.

(r)

Before any variance is granted, the board must find that the granting of the variance will not adversely affect the public health, safety or welfare, will not alter the essential character of the general vicinity, will not cause a hazard or a nuisance to the public and will not allow an unreasonable circumvention of the requirements of the zoning regulations. In making these findings the board shall consider whether:

(1)

The requested variance arises from special circumstances which do not generally apply to land in the general vicinity, or in the same zone;

(2)

The strict application of the provisions of the regulation would deprive the applicant of the reasonable use of the land or would create an unnecessary hardship on the applicant; and

(3)

The circumstances are the result of actions of the applicant taken subsequent to the adoption of the zoning regulation from which relief is sought.

(s)

The board shall deny any request for a variance arising from circumstances that are the result of willful violations of the zoning regulation by the applicant subsequent to the adoption of the zoning regulation from which relief is sought.

(t)

The board shall not possess the power to grant a variance to permit a use of any land, building, or structure which is not permitted by the zoning regulation in the zone in question, or to alter density requirements in the zone in question.

(u)

A dimensional variance applies to the property for which it is granted, and not to the individual who applied for it. A variance also runs with the land and is transferrable to any future owner of the land, but it cannot be transferred by the application to a different site.

(v)

The lawful use of a building or premises existing at the time of adoption of any zoning regulations affecting it may be continued, although such use does not conform to the provisions of such regulations except as otherwise provided herein. The board of adjustment shall not allow the enlargement or extension of a nonconforming use beyond the scope and area of its operation at the time the regulation which makes its use nonconforming was adopted, nor shall the board permit a change from one (1) nonconforming use to another unless the new nonconforming use is in the same or a more restrictive classification provided, however, the board of adjustments may grant approval, effective to maintain nonconforming use status, for enlargements or extensions, made or to be made to the facilities of a nonconforming use where the use consists of the presenting of a major public attraction or attractions such as a sports event or events, which has been presented at the same site over such period of years and has such attributes and public acceptance as to have attained local prestige and to have achieved the status of a public tradition, contributing substantially to the economy of the community and state, of which prestige and status the site is an essential element, and where the enlargement or extension was or is designed to maintain the prestige and status by meeting the increasing demand of participants and patrons.

(w)

The board of adjustment shall have the power to hear and decide cases where it is alleged by an applicant that there is an error in any order, requirement, decision, grant or refusal made by an administrative official in the enforcement of the zoning regulations. Such appeal shall be taken within thirty (30) days.

(x)

Appeals to the board may be taken by any person or entity claiming to be injuriously affected or aggrieved by an official action or decision of the zoning enforcement officer. Such appeal shall be taken within thirty (30) days after the appellant or his agent receives notice of the action appealed from, by filing with said officer and with the board a notice of appeal specifying the grounds thereof, and giving notice of such appeal to any and all parties of record. Said officer shall forthwith transmit to the board all papers constituting the record upon which the action appealed from was taken and shall be treated as and be the respondent in such further proceedings. At any hearing by the board any interested person may appeal and enter his appearance and all shall be given an opportunity to be heard.

(y)

The board shall fix a reasonable time for hearing the appeal and give public notice in accordance with KRS Ch. 424, as well as written notice to the appellant and the administrative official at least one (1) week prior to the hearing and shall decide it within thirty (30) days. The affected party may appear at the hearing in person or by attorney.

(z)

If no building permit has been issued and a builder begins or continues to build, a restraining order may be obtained upon application to the property court of record and evidence of the lack of a building permit shall establish a prima facie case for the issuance of the restraining order.

(Ord. No. 23-14, Exh. A, 7-8-14; Ord. No. 23-20, 10-27-20)

A schedule of fees, charges and expenses and collection procedure for appeals for conditional use permits, variances and administrative appeals is hereby established. No approval shall be granted nor shall any action be taken on proceedings before the board of zoning adjustment unless and until preliminary charges and fees have been paid in full. (Reference to the current Code of Ordinance on file in the Henderson City Clerk's Office).

(Ord. No. 23-14, Exh. A, 7-8-14)