A.

The governing body of the city, having adopted and in effect a Zoning Ordinance, chooses to act as and perform the duties and exercise the powers of such board of adjustment as provided by law. The mayor of the city shall be the chairman of said board of adjustment as so composed.

B.

In the event the governing body, acting as the Board of Adjustment, is unable to carry out its duties under this chapter for any reason, including conflict of interest or absence of members, the Alternate Board of Adjustment shall perform the duties and exercise the powers as the Board of Adjustment in a manner consistent with this Chapter and as provided by law.

(Ord. 1401 (part), 1980: Ord. 1287 (part), 1977: Ord. 1173 (part), 1975: Ord. 985 (part), 1971).

(Ord. No. 2167-23-390, 9-28-2015)

The Mayor shall appoint five members to the Alternate Board of Adjustment, two of which shall be members of the City Commission, subject to the following:

A.

Appointment of the members shall be subject to approval by a majority of the City Commission;

B.

Members shall be resident electors of the City;

C.

The standard term of the members shall be for three (3) years;

D.

Members shall be removable for cause upon written charges and after public hearing, upon a majority vote of the City Commission;

E.

Vacancies shall be filled by the Mayor for the unexpired term of any member whose term becomes vacant;

F.

Upon initial appointment, one member shall serve a one (1) year term, two members shall serve two (2) year terms, and two members shall serve three (3) year terms. Thereafter the terms shall be standard terms of office. Terms shall be renewed annually in May for the period of June 1 to May 31;

G.

Members shall serve without compensation except for actual expenses incurred, subject to City policies and the approval of the City Commission;

H.

A chairperson and vice-chairperson shall be appointed annually by a majority vote of the members.

(Ord. No. 2167-23-390, 9-28-2015)

Meetings of the board of adjustment shall be held during the regular meetings of the governing body at the call of the chairman, and at such other times as the board may determine. Such chairman, or in his absence the acting chairman, may administer oaths and compel the attendance of witnesses.

(Ord. 1401 (part), 1980: Ord. 1287 (part), 1977: Ord. 1173 (part), 1975: Ord. 985 (part), 1971).

The board of adjustment shall keep minutes of its proceedings, showing the vote of each member upon each question, or, if absent or failing to vote, indicating such fact, and shall keep records of its examinations and other official actions, all of which shall be immediately filed in the office of the board and shall be a public record.

(Ord. 985 (part), 1971).

The board of adjustment shall have the following powers:

(1)

To hear and decide appeals where it is alleged there is error in any order, requirement, decision or determination made by an administrative official in the enforcement of this title or of any ordinance adopted pursuant hereto;

(2)

To hear and decide special exceptions to the terms of the title upon which such board is required to pass under such title;

(3)

To authorize upon appeal in specific cases such variance from terms of the title as will not be contrary to the public interest, where, owing to special conditions, a literal enforcement of the provisions of the title will result in unnecessary hardship, which constitutes an unreasonable deprivation of use as distinguished from the mere grant of a privilege, and so that the spirit of the title shall be observed and substantial justice done;

(4)

In granting any variance, the board of adjustment may prescribe any conditions applying thereto that it may deem necessary or desirable to carry out the general purposes of the article, to preserve the neighborhood or to protect the general welfare of the neighborhood from injury.

(Ord. 1870, 2000; Ord. 1631, 1991: Ord. 1287 (part), 1977: Ord. 1218, 1976; Ord. 985 (part), 1971).

The board of adjustment shall adopt rules in accordance with the provisions of state law and the ordinances codified in this title.

(Ord. 1287 (part), 1977: Ord. 985 (part), 1971).

Appeals to the board of adjustment may be taken by any person aggrieved or by any officer, department, board, or bureau of the municipality affected by any decision of the administrative officers. Such appeal shall be taken within a reasonable time, as provided by the rules of such board, by filing with the officer from whom the appeal is taken and with the board of adjustment a notice of appeal specifying the grounds thereof. The officer from whom the appeal is taken shall forthwith transmit to the board all the papers constituting the record upon which the action appealed from was taken.

(Ord. 985 (part), 1971).

An appeal to the board of adjustment stays all proceedings in the action appealed from, unless the officer from whom the appeal is taken shall file a certificate 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 of adjustment or by a court of record, on application, on notice to the officer from whom the appeal is taken and on due cause shown.

(Ord. 1173 (part), 1975: Ord. 985 (part), 1971).

The board of adjustment shall fix a reasonable time for the hearing of the appeal, give public notice thereof, as well as due notice to the parties in interest and decide the same within a reasonable time. Upon the hearing any party may appear in person or by agent or by attorney.

(Ord. 985 (part), 1971).

In exercising the powers mentioned in Section 23.01.080, the board of adjustment may, in conformity with the provisions of this title, reverse or affirm, wholly or partly, or may modify the order, requirement, decision, or determination appealed from and may make such order, requirement, decision, or determination as ought to be made, and to that end shall have all the powers of the officer from whom the appeal is taken.

(Ord. 985 (part), 1971).

The concurring vote of three-fourths of the members of the board of adjustment shall be necessary to reverse any order, requirement, decision, or determination of any such administrative official, or to decide in favor of the applicant on any matter upon which it is required to pass under any such ordinance, or to effect any variation in such ordinance.

(Ord. 1435, 1981: Ord. 1401 (part), 1980: Ord. 1287 (part), 1977: Ord. 985 (part), 1971).

Any person or persons, jointly or severally, aggrieved by any decision of the board of adjustment, or any taxpayer, or any officer, department, board or bureau of the municipality, 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 thirty days after the filing of the decision in the office of the board.

(Ord. 985 (part), 1971).

Upon the presentation of such petition the court may allow a writ of certiorari directed to the board of adjustment to review such decision of the board of adjustment and shall prescribe therein the time within which a return thereto must be made and served upon the realtor's attorney, which shall not be less than ten days and may be extended by the court.

The allowance of the writ shall not stay proceedings upon the decision appealed from, but the court may, on application, on notice to the board and on due cause shown grant a restraining order.

(Ord. 985 (part), 1971).

The board of adjustment shall not be required to return the original papers acted upon by it, but it shall be sufficient to return certified copies thereof, or of such portions thereof as may be called for by such writ. The return shall concisely set forth such other facts as may be pertinent and material to show the grounds of the decision appealed from and shall be verified.

(Ord. 985 (part), 1971).

If upon the hearing it appears to the court that testimony is necessary for the proper disposition of the matter, it may take evidence, or appoint a referee to take such evidence as it may direct and report the same to the court with his findings of fact and conclusions of law, which shall constitute a part of the proceedings upon which the determination of the court shall be made.

(Ord. 985 (part), 1971).

The court may reverse or affirm, wholly or partly, or may modify the decision brought up for review.

Costs shall not be allowed against the board of adjustment unless it appears to the court that it acted with gross negligence, or in bad faith, or with malice in making the decision appealed from.

(Ord. 985 (part), 1971).