The commission shall consider administrative appeals: a) alleging that an error has been made by the administrator, b) applications for variances from the terms of this title and c) requests for hearings from affected persons. (Ord. 441, 7-24-2002)

Appeals to the commission concerning interpretation or administration of this title may be taken by any person aggrieved or by any officer or bureau of the legislative authority affected by any decision of the administrator. Such appeal shall be taken within twenty eight (28) days after the 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 being taken. The administrator shall transmit to the commission all the papers constituting the record upon which the appeal is based. (Ord. 441, 7-24-2002)

An appeal stays all proceedings in furtherance of the action taken unless the administrator certifies to the commission after the notice of appeal is filed with him that by reason of facts stated in the application, a stay would, in his opinion, cause imminent peril to life and property. In such case, proceedings shall not be stayed other than by a restraining order which may be granted by the commission or by a court based upon an application, with notice to the administrator showing due cause. (Ord. 441, 7-24-2002)

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 the neighboring lands, structures or buildings in the same district and no permitted or nonconforming use of lands, structures or buildings in other districts shall be considered grounds for issuance of a variance. Variances shall not be granted on the grounds of convenience or profit, but only where strict application of the provisions of this title would result in unnecessary hardship. (Ord. 441, 7-24-2002)

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:

   A.   Name, address and phone number of applicant;

   B.   Legal description of property;

   C.   Description of nature of variance requested; and

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

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

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

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

      4.   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 district.

A variance shall not be granted unless the commission makes specific findings of fact based directly on the particular evidence presented to it, which supports conclusions that the above mentioned standards and conditions have been met by the applicant. (Ord. 441, 7-24-2002)

Under no circumstances shall the commission grant an appeal or variance to allow a use not permissible under the terms of this title in the district involved, or any use expressly or by implication prohibited by the terms of this title in said district. In granting any appeal or 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 appeal or variance is granted, shall be deemed a violation of this title. (Ord. 441, 7-24-2002)

Upon receipt of the application for an appeal or 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. (See section 8-15-7 of this title.) (Ord. 441, 7-24-2002)

(Ord. 582, 4-27-2016)

Within twenty eight (28) days after the public hearing the commission shall approve, conditionally approve, postpone decision for further study or disapprove the request for appeal or variance. Upon granting or denying an application the commission shall specify:

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

   B.   The reasons for approval or denial; and

   C.   The actions, if any, that the applicant could take to obtain a permit. (Ord. 441, 7-24-2002)

Within seven (7) days after a decision has been rendered, the administrator shall provide the applicant with written notice of the action on the request. (Ord. 441, 7-24-2002)

The applicant or any aggrieved persons with lawful standing and who also appeared in person or in writing before the commission may appeal the decision of the commission to the city council as provided in this chapter. (Ord. 569, 4-9-2014)

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 council in writing to hold a hearing as required in section 8-14-7 of this chapter. Through petition for a hearing, the hearing shall be held.

After a hearing, the commission or city council may:

   A.   Grant or deny a permit; or

   B.   Delay such a decision for a definite period of time for further study or hearing not to exceed sixty (60) days.

An affected person aggrieved by a decision may within thirty (30) days after all remedies have been exhausted under local ordinances seek judicial review. (Ord. 517, 12-9-2009)

   A.   Requirements: Appeals of decisions of the zoning administrator shall be determined by the planning and zoning commission. An appeal shall be in writing and shall include the specific legal basis for appeal and the results sought. The commission will render a written decision that will be communicated to the appellant and applicant.

   B.   Procedure: Appeals of decisions made by the commission shall be determined by the city council. The procedure for an appeal shall be as follows:

      1.   Fees governing appeals must be paid at the time of the filing of the appeal. The legal basis for the appeal must be stated in writing before an appeal will be deemed accepted for consideration. The written notice of appeal shall contain name, address and phone number of appellant and, if different, the name, address and phone number of the property owner; and it shall include the street address and legal description of property which is the subject of the appeal. The record of the proceedings before the commission shall be transmitted by the commission to the city clerk before consideration of the appeal by the city council.

      2.   Appeals of final decisions made by the commission may only be appealed to the city council if a written request for reconsideration has been previously submitted to the commission within fourteen (14) days of the final decision of the commission. The request for reconsideration shall state the issues to be considered on reconsideration and the legal basis for the relief sought. The commission shall respond in writing to any request for reconsideration within fourteen (14) days of its filing, either modifying its original decision or affirming its prior action. Only following issuance of the commission's written decision regarding reconsideration, may the appeal process proceed before the city council. The appeal to the city council must also include a copy of the request for reconsideration of the appeal before the commission and the commission's decision on reconsideration. Any appeal to the city council for which there is no request for reconsideration before the commission shall be dismissed by the city clerk.

      3.   A request for appeal to the city council shall include the explanation of the basis for appeal and the result sought and must be filed no more than fourteen (14) days after the reconsideration decision of the commission is entered. The issues on appeal shall be limited to those raised in the request for reconsideration submitted to the commission.

      4.   After considering the written decision of the commission, the decision on reconsideration, the record on appeal and the written appeal submitted by the applicant, the city council may determine that the appeal has no legal basis and dismiss it, may rule upon the appeal based upon the written record placed before it or schedule an appeal hearing to allow oral presentation of the issues associated with the appeal. Following conclusion of the procedures it chooses to invoke, the city council will render a written decision that will be communicated to the appellant and applicant.

   C.   Review Of Final Decision: An aggrieved party may seek judicial review of a decision of the city council of any final decision of the council.

      1.   A decision of the city council is not a final decision until it has been rendered in writing and delivered to the applicant. Also, it is not a final decision, subject to review, until a written request for reconsideration has been submitted to the city clerk within fourteen (14) days of the final decision of the council, stating the issues to be reconsidered and specific legal basis for the relief sought.

      2.   The council shall respond in writing to any request for reconsideration within fourteen (14) days of its filing, either modifying its original decision or affirming its prior action. The city council may determine that the request for reconsideration has no legal basis and dismiss it, may rule upon the request based upon the written record placed before it, or schedule a hearing to allow oral presentation of the issues associated with the request. The city council will render a written decision that will be communicated to the appellant and applicant.

      3.   A failure to request reconsideration is a failure of the appellant to exhaust administrative remedies.

   D.   Fees: During the process of appeal or of reconsideration, should either the commission or the council determine that new or additional public hearings must be held, requiring new notice of hearing to be sent or published, the cost of such shall be borne by the applicant. The cost of such shall be paid in advance giving any such notice. Any other fee for filing any request for reconsideration shall be paid in advance in the amount set by council resolution. (Ord. 569, 4-9-2014)

   A.   Application For Mediation: Mediation shall be requested in writing by any applicant or affected person or by the mayor, department head, board or commission member or member of the city council affected by any decision of the planning and zoning commission or council at any time prior to filing of a lawsuit with the district court.

   B.   Mediation Session: The applicant and any person(s) objecting to the application made on the basis of a mediation application shall participate in at least one mediation session if mediation is requested by either the planning and zoning commission or by city council. City council shall select the mediator and shall pay the expense of mediation for the first meeting among mediating parties. Compensation of the mediator shall be determined among each party participating in the mediation prior to or at the outset of the first mediation.

   C.   Participation: Unless such parties participating in the first mediation session have been directed to participate in mediation either by the planning and zoning commission or by city council, an applicant may decline to participate in mediation which has been requested by an affected person and an affected person may decline to participate in a mediation requested by the applicant. (Ord. 441, 7-24-2002; amd. Ord. 517, 12-9-2009)

   D.   Time Limitation: Upon request for mediation, any time limitation shall be tolled. Such tolling shall cease when the first of any of the following occurs:

      1.   When the applicant or any affected person(s) has participated in at least one mediation session and states in writing that no further participation by that party is desired. The person making such statement is obligated to serve or deliver a copy of same to all parties entitled to notice; or

      2.   Upon receipt by the county or city as well as the applicant or affected person of a written refusal by the applicant or affected person to mediate when such person is not obligated to mediate as herein provided. The party declining to mediate shall have the obligation of giving notice of the same to all parties to whom notice should be given; or

      3.   Upon notice of a request for mediation where no mediation session is scheduled for at least twenty eight (28) days from the date of such a request. (Ord. 517, 12-9-2009)

   E.   Public Hearing: A public hearing shall be held before city council where a resolution through mediation occurs following a final decision on an application made on the basis of such mediation.

   F.   Not Part Of Official Record: The mediation process shall not be part of the official record regarding consideration of the application upon which the mediation is based. (Ord. 441, 7-24-2002; amd. Ord. 517, 12-9-2009)