A board of adjustment is hereby established. The board of adjustment shall consist of five members, all of whom are residents of the town. Each member shall be appointed by the mayor with the approval of the board of trustees and shall be appointed for a term of three years, except for the first appointment, and shall serve until their successors are duly appointed and qualified. Members may be reappointed for an unlimited number of terms. The board of adjustment shall function under the provisions of the rules of procedure adopted by the board of adjustment.

(Prior zoning regs., § 601; Code 1992, § 16-161; Ord. No. 1-1992, § 1)

(a)

In harmony with the purpose and intent of this article and in accordance with the public interest and the most appropriate development of the area, the board of adjustment shall have powers and duties which shall be subject to state laws and to appropriate safeguards and conditions.

(b)

The board of adjustment shall hear and decide appeals from and review any order, requirement, decision or determination made by any administrative official charged with the enforcement of the regulations established by this article, and as provided in this section and section 16-163. The board of adjustment may hear and make recommendations to the planning and zoning commissions and/or the board of trustees concerning all matters referred to it.

(Prior zoning regs., § 602; Code 1992, § 16-162; Ord. No. 1-1992, § 1)

(a)

The board of adjustment may reverse or affirm, wholly or partly, or may modify the order, requirement, decision or determination made by the administrative official, which was appealed from, and shall make such order, requirement, decision or determination as in its opinion ought to be made in the premises pursuant to all provisions of this chapter, and in accordance with section 16-162. The board of adjustment retains all the powers of the officer from whom the appeal is taken.

(b)

The board of adjustment shall adhere to the following restrictions:

(1)

If the board of adjustment determines that a particular provision of the zoning ordinance is causing a hardship for property owners, it may recommend that the particular ordinance provision be reviewed and considered for amendment by the planning and zoning commissions and the board of trustees. The board of adjustment shall not attempt to achieve this end through the wholesale granting of appeals.

(2)

Where feasible, the board of adjustment may vary or modify the application of the regulations for the purpose of considering access to sunlight for solar energy devises.

(3)

If through a change in circumstances, the provisions of a zoning district become inapplicable to a particular area within that district, then the board of adjustment shall recommend that the area be rezoned.

(4)

The board of adjustment shall not assume any functions which are specifically delegated to the planning and zoning commissions.

(5)

Each appeal and special exception shall be determined on its own merits within the guidelines set by this article. Any variances deemed appropriate under the circumstances shall be referred to the planning and zoning commissions along with recommendations from the board of adjustment for review and recommendation to the board of trustees.

(Prior zoning regs., § 603; Code 1992, § 16-163; Ord. No. 1-1992, § 1)

(a)

The board of adjustment shall hold a public hearing on all appeals and special exceptions. An appeal stays all proceedings in furtherance of action appealed from, unless the officer from whom the appeal is taken certifies to the board of adjustment after the notice of appeal has been filed that by reason of facts stated a stay would, in his or her opinion, cause imminent peril to life or property, in which case proceedings shall not be stayed unless otherwise directed by a restraining order which may be granted by the board of adjustment or by the district court on application, on notice to the officer from whom the appeal is taken, and on due cause shown.

(b)

The applicant requesting an appeal hearing before the board of adjustment shall file within 30 days with the office of the town clerk a notice to appeal and a statement requesting a hearing containing the following:

(1)

Full name and address of the owner of the property in question.

(2)

Address of property in question.

(3)

Order, requirement, decision or determination being appealed.

(4)

Grounds for the appeal.

(5)

Names of all owners of property within 300 feet of the property in question.

(c)

The town clerk shall at once transmit the statement to the board of adjustment and notify the officer from whom the appeal is taken.

(d)

The officer from whom the appeal is taken shall at once transmit to the board of adjustment all papers consolidating the record upon which the action appealed from was taken.

(e)

Upon receiving the statement, the board of adjustment shall fix a reasonable time for the hearing and give due notice to the parties within 300 feet of the property in question of the time, location and purpose of the appeal hearing. This notice shall be sent by certified mail at least five days prior to the hearing or be hand-delivered at least five days prior to the hearing. Failure to notify every property owner due to clerical omissions shall not affect the validity of any hearing or determination of the board of adjustment.

(f)

Accompanying all applications shall be a filing fee to be determined according to the schedule of fees in section 16-201. In addition, applicants shall pay all costs of advertising, posting and processing. In no event shall all or any portion of the filing fee be refunded.

(g)

Upon hearing, any party may appear in person, by agent or attorney.

(Prior zoning regs., § 604; Code 1992, § 16-164; Ord. No. 1-1992, § 1)

(a)

The board of adjustment shall decide the appeal or special exception within 30 days of receiving the written request for an appeal hearing.

(b)

The vote of at least four members of the board of adjustment is necessary to reverse any order, requirement, decision or determination of any such administrative official, or to effect any special exception to this chapter.

(c)

Every decision of the board of adjustment shall be subject to review by certiorari by the county district court. Such appeal may be taken by any person aggrieved or by an officer, department, board or bureau of the town.

(Prior zoning regs., § 605; Code 1992, § 16-165; Ord. No. 1-1992, § 1)

(a)

Meetings of the board of adjustment shall be held pursuant to the rules of procedure as adopted and amended from time to time by the board of adjustment, or at such other time as the board of adjustment may determine necessary.

(b)

The board of adjustment shall keep accurate and detailed records of its proceedings. While verbatim transcripts are not required of meetings, the board of adjustment shall make certain that the records reflect the key findings of fact and the reasoning on which each decision is based.

(Prior zoning regs., § 606; Code 1992, § 16-166; Ord. No. 1-1992, § 1)

(a)

Requests for variances. The planning and zoning commissions shall hold a public meeting, shall review and shall make recommendation to the board of trustees regarding requests for variances from the terms of this chapter when, by reason of exceptional shape, size or topography of lot or other exceptional situation or conditions of such piece of property and not of the owner's making, practical difficulty or unnecessary hardship would result to the owner of said property from a strict enforcement of this chapter, provided that such relief may be granted without substantial detriment to the public good without creating a condition incompatible with surrounding land uses and without substantially impairing the intent and purposes of this chapter. No variance shall authorize any use in a zoning district other than a use specifically permitted in such zoning district.

(b)

Procedures for request.

(1)

Application for a variance shall be made on forms furnished by the town clerk. Such application shall include the following:

a.

Name and address of the owner of the property or business requesting said variance.

b.

Applicable page and paragraph of the zoning regulations, and the requirement or requirements from which the applicant is requesting a variance.

c.

Precise variance which is being requested.

d.

Precise reason for such request.

e.

Signatures of surrounding property owners within a 300-foot radius of each property line of the particular property requesting such variance.

f.

Signature of the applicant.

(2)

A plot plan drawn to scale shall be submitted concurrently with the completed variance request application, which shall include the following:

a.

Lot size in square feet.

b.

Existing building and/or structure, signs, parking or anything of a permanent nature, and distance in square feet to each property line.

c.

Location of the proposed request and distance in square feet to each property line.

(3)

Action before the planning and zoning commissions. All applications under this section shall be reviewed for completeness by the town clerk and, if found to be complete, shall be transmitted to the planning and zoning commissions for review and consideration, and recommendations to the board of trustees. Any recommendation for approval may require that the applicant meet and/or maintain certain reasonable requirements and/or conditions as a prerequisite to obtaining and/or retaining the variance.

(4)

Any party may appear in person, or by agent or attorney at such public meeting.

(c)

Time limit. Unless otherwise determined for a particular variance, all rights granted by variances shall be exercised within six months from the date the variance was granted.

(d)

Limitation of rights granted by a variance. Rights granted by a variance may be limited in time at the discretion of the board of trustees.

(e)

Board of trustees' action. The board of trustees shall review the recommendations from the planning and zoning commissions and all other relevant information and shall determine whether a variance shall be granted. Under these provisions, the board of trustees may require the applicant to meet and/or maintain certain reasonable requirements and/or conditions as a prerequisite to obtaining and/or retaining the variance. All reasonable requirements, as stated on a zoning variance agreement, shall be fulfilled, and the signature of the requesting party shall be obtained on the zoning variance agreement prior to the variance being effective. The board of trustees may revoke the variance if it so determines that the requirements and/or conditions of the variance are not being fulfilled by the applicant.

(Prior zoning regs., § 607; Code 1992, § 16-167; Ord. No. 1-1992, § 1)