There is hereby created for the city and the county a board of adjustment with the powers and duties as set forth in this article.

(Ord. of 2-21-1995, art. VIII, § 1)

(a)

The board of adjustment shall be composed of seven members appointed as the city and planning area commission by the city and county governing bodies. Terms of office shall run concurrently with their appointment as planning commissioners.

(b)

The board of adjustment shall elect a chairperson from its membership to serve for a term of one year.

(Ord. of 2-21-1995, art. VIII, § 2)

The board of adjustment shall adopt rules in accordance with the provisions of these regulations. Meetings of the board shall be held at the call of the chairperson and at such other times as the board may determine. The chairperson, or in his absence, the acting chairperson, may administer oaths and compel the attendance of witnesses. All meetings of the board of adjustment shall be open to the public. The board of adjustment shall keep minutes of its meetings.

(Ord. of 2-21-1995, art. VIII, § 3)

Appeals may be taken to the board of adjustment by any person aggrieved or by any officer, department, board or bureau of the city affected by any decision of the building inspector. Such appeal shall be taken within ten days from the date of the decision by filing with the inspecting 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 of adjustment all the papers constituting the record upon which the action appealed from was taken.

(Ord. of 2-21-1995, art. VIII, § 4)

(a)

The board of adjustment shall have the following powers:

(1)

[Hear and decide appeals. The board of adjustment shall have the] power to hear and decide appeals.

(2)

Relative to variances. Where, by reason of exceptional narrowness, shallowness, or shape of a specific piece of property at the time of the original adoption of the regulations, or by reason of exceptional topographical conditions or other extraordinary or exceptional situation or condition of a specific piece of property, which condition is not generally prevalent in the area, the strict application of this chapter would result in peculiar and exceptional practical difficulties to or exceptional and undue hardship on the owner of such property, the board of adjustment is hereby empowered to authorize upon an appeal relating to such property a variance from such strict application so as to relieve such difficulties or hardship, but may establish such requirements relative to such property as would carry out the purpose and intent of this chapter.

(3)

Relative to exceptions. Upon appeal, the board of adjustment is hereby empowered to permit the following exceptions:

a.

To permit the extension of a district not to exceed 50 feet where the boundary lines of a district divides a lot in single ownership as shown of record.

b.

To interpret the provisions of this chapter where the street layout actually on the ground varies from the street layout as shown on the map fixing the several districts which map is attached to and made a part of this chapter.

(b)

In exercising the above-mentioned powers the board of adjustment, may in conformance with the provisions of this chapter 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. In considering all appeals from rulings made under this chapter, the board shall, in making its findings on any specific case, determine the effect of the proposed change upon the supply of light and air to adjacent property, upon the congestion in the public streets, upon the public safety from fire and other hazards, upon the established property values within the surrounding area, and upon other factors relating to the public health, safety, comfort, morals and general welfare of the people of the city and planning area. Every ruling made upon any appeal to the board of adjustment shall be accompanied by a written finding of fact based upon the testimony received at the hearing afforded by the board of adjustment and shall specify the reason for granting or denying the appeal.

(c)

A variance from the terms of this chapter shall not be granted by the board of adjustment unless and until a written application for a variance is submitted demonstrating:

(1)

The 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)

The 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)

The 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.

(d)

No nonconforming use of 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 the issuance of a variance.

(Ord. of 2-21-1995, art. VIII, § 5)

An appeal from any action, decision, ruling, judgment or order of the board of adjustment may be taken by any person or persons, jointly or severally, or any taxpayer, officer, department, board or bureau of the city to the mayor and board of aldermen and by filing notice of appeal with the city clerk within 20 days from the filing of the decision of the board of adjustment which notice of appeal as herein provided, the city clerk shall forthwith transmit to the mayor and board of aldermen the original or certified copy of all the papers constituting the record in the case, together with the order, decision or ruling of the board of adjustment. Any person aggrieved at any final decision of the mayor and board of aldermen may appeal therefrom to the chancery court of the county, within the time and in the manner prescribed by law for appeals from any order of the governing authority of a municipality.

(Ord. of 2-21-1995, art. VIII, § 6)