1.   Board Created. The Board of Adjustment consists of five members all of whom are taxpayers and residents of the City. They shall be appointed by the Mayor, subject to confirmation by the Council. One member of the Board may be a member of the City Planning Commission. Appointments to the Board shall be for a term of five years. Any vacancy shall be filled by appointment for the unexpired term only. All members shall serve without compensation.

   2.   Meetings. The meetings of the Board shall be held at the call of the Chairperson, and at such other times as the Board may determine. Such Chairperson, or in the Chairperson’s absence, the acting Chairperson, may administer oaths and compel the attendance of witnesses. The meetings of the Board shall be open to the public. The Board shall keep minutes of its proceedings, showing the vote of each member on each question, or if absent or failing to vote, the minutes shall indicate such fact. The Board shall keep records of its examinations and other official actions, which shall be immediately filed in the office of the Board as a public record. The presence of three members shall be necessary to constitute a quorum.

   3.   Appeals. Appeals to the Board may be taken by any person aggrieved, or by any officer, department, or board or bureau of the City affected by any decision of the Zoning Administrator. Such appeal shall be taken within ten days by filing with the Zoning Administrator and with the Board written notice of appeal specifying the grounds thereof. The Zoning Administrator shall forthwith transmit to the Board all papers constituting the record upon which the action appealed from is taken. An appeal stays all proceedings in furtherance of the action appealed from, unless the Zoning Administrator certifies to the Board after the notice of the appeal shall have been filed with the Zoning Administrator, that by reason of facts stated in the appeal a stay would in said official’s 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 of notice to the Zoning Administrator and on due cause shown. Appeals to the Board from the decision of the Zoning Administrator shall not be considered by the Board until a fee, set by resolution, for each such appeal is deposited by the appellant with the Clerk. Such fee shall be paid at the same time as the notice to the Board that is herein delineated is given. The City may, from time to time, apply such fees as it deems necessary to defray administration and expenses in processing the appeal. The appellant is required to set stakes showing the boundaries of the proposed construction at least one week prior to the hearing date.

   4.   Hearings; Notice. The Board shall fix a reasonable time for the hearing on the appeal, give public notice thereof as well as due notice to the parties in interest, and decide the same within a reasonable time. At the hearing, any party may appear in person or by agent or attorney.

   5.   Powers; Administrative Review. The Board shall hear and decide appeals where it is alleged that there is error in any order, requirement, decision or determination made by the Zoning Administrator in the enforcement of the provisions of this chapter.

   6.   Powers; Exceptions. The Board shall permit the following exceptions to the district regulations set forth in this chapter subject to the requirements of this section:

      A.   To permit erection and use of a building or the use of premises or vary the height and the regulations in any location for a public service corporation for public utility purposes or for purposes of public communication, which the Board determines is reasonably necessary for the public convenience or welfare.

      B.   To permit the extension of a use into a district where it would be otherwise prohibited, in a case where a district boundary line is so located that a lot or plat is in more than one district.

   7.   Powers; Special Exceptions. The Board shall have the authority to hear and decide only such other special exceptions as the Board is specifically authorized to pass on by the terms of this chapter; to decide such questions as are involved in determining whether special exceptions should be granted; and to grant special exceptions with such conditions and safeguards as are appropriate under this chapter, or to deny special exceptions when not in harmony with the purpose and intent of this chapter. A special exception shall not be granted by the Board unless and until:

      A.   A written application for special exception is submitted indicating the section of this chapter under which the special exception is sought and stating the grounds on which it is requested.

      B.   Notice of public hearing shall be given at least 10 days in advance of public hearing. The owner of the property for which special exception is sought or such person’s agent and any other affected property owners shall be notified by mail. Notice of hearing shall also be posted on the property for which special exception is sought. Any party may appear in person, or by agent, or attorney.

      C.   Requests for variances to permit a nonconforming use in addition to being made to the Board of Adjustment shall also be automatically forwarded by the Clerk to the Zoning Commission which shall thereafter have the right to make recommendations for or against the proposed special exception, and shall have the right to appear before the Board of Adjustment. No request for exception shall be passed upon by the Board of Adjustment without first being referred to and a report on recommendations received from the Zoning Commission.

   8.   Powers; Variances. The Board shall have the authority to authorize upon appeal in specific cases such variances from the terms of this chapter as will not be contrary to the public interest where, owing to special conditions, a literal enforcement of the provisions of this chapter would result in unnecessary hardship. A variance from the terms of the Zoning Ordinance shall not be granted by the Board unless and until:

      A.   A written application for a variance is submitted demonstrating that:

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

         (2)   Literal interpretation of the provisions of this chapter would deprive the applicant of rights commonly enjoyed by other properties in the same district under the terms of this chapter.

         (3)   The special conditions and circumstances do not result from the actions of the applicant.

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

No nonconforming use of neighboring lands, structures, or buildings in the same district, and no permitted use of lands, structures, or buildings in other districts shall be considered grounds for the issuance of a variance.

      B.   Notice of public hearing shall be given at least 10 days in advance of public hearing. The owner of the property for which special exception is sought or an agent of said owner and any other affected property owners shall be notified by mail. Notice of hearing shall also be posted on the property for which special exception is sought. Any party may appear in person, or by agent, or by attorney.

   9.   Decisions of the Board of Adjustment. The concurring vote of three members of the Board shall be necessary to reverse any order, requirement, decision, or determination of the Zoning Administrator, or to decide in favor of the applicant on any matter upon which it is required to pass under this chapter, or to effect any variation in the application of this chapter.

   10.   Appeals From the Decision of the Board of Adjustment. Any taxpayer, or any officer, department, board or bureau of the City, or any person or persons jointly or severally aggrieved by a decision of the Board of Adjustment may present to a court of record a petition, duly verified, setting forth that such decision is illegal, in whole or in part, specifying the grounds of the illegality. Such petition shall be presented to the court within 30 days after the filing of the decision in the office of the Board. The court may reverse or affirm, wholly or in part, or may modify the decision brought up for review.

   11.   Duties on Matters of Appeal. It is the intent of this chapter that all questions of interpretation and enforcement shall be first presented to the Zoning Administrator, and that such questions shall be presented to the Board of Adjustment only on appeal from the decision of the Zoning Administrator, and that recourse from the decisions of the Board of Adjustment shall be to the courts as provided by law and particularly by statute. It is further the intent of this chapter that the duties of the Council in connection with this chapter shall not include hearing and deciding questions of interpretation and enforcement that may arise. The procedure for deciding such questions shall be as stated in this section and this chapter. Under this chapter, the Council shall have only the duties of considering and adopting or rejecting proposed amendments or the repeal of the ordinance codified by this chapter, as provided by law and of establishing a schedule of fees and charges.

   12.   Complaints Regarding Violations. Whenever a violation of this chapter occurs, or is alleged to have occurred, any person may file a written complaint. Such complaint stating fully the causes and basis thereof shall be filed with the Zoning Administrator. The Zoning Administrator shall record properly such complaint, immediately investigate, and take action thereof as provided by this chapter.