The word "board," when used in this article, shall mean board of zoning appeals. The board shall adopt rules of procedure as may be necessary and proper to govern its own proceedings; such rules shall not be in conflict with other laws, regulations or ordinances. Meetings of the board shall be held at the call of the chairman and at such other times as the board may determine. The board shall keep minutes of its proceedings, showing the description of evidence presented, the findings of fact by the board, the decisions of the board, and 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 filed in the office of the city clerk immediately and shall be public record.

(Ord. No. 1088, exh. A(9.10), 10-4-1982)

The board shall have the following powers and jurisdictions.

9.21.

Appeals. To hear and decide appeals where it is alleged there is an error in any order, requirement, decision or determination made by the zoning administrator in the enforcement of these regulations.

1.

Appeals to the board may be taken by the person aggrieved, or by any officer, department, or bureau of the government affected by any decision of the zoning administrator. Such appeal shall be filed with the zoning administrator within a reasonable time, as shall be prescribed. The zoning administrator shall forthwith transmit to the secretary of the board all papers constituting the record upon which the action appealed from is taken.

2.

An appeal stays all proceedings in furtherance of the action appealed from, unless the zoning administrator certifies to the board, after the notice of appeal shall have been filed with him, 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, or by a court of record on application or notice to the zoning administrator on good cause shown.

9.22.

Variances. To authorize in specific cases a variance from the specific terms of these regulations which will not be contrary to the public interest and where, owing to special conditions, a literal enforcement of the provisions of these regulations will, in an individual case, result in unnecessary hardship, provided the spirit of these regulations shall be observed, public safety and welfare secured, and substantial justice done. Such variance shall not permit any use not permitted by the zoning regulations in such district.

1.

The applicant must show that his property was acquired in good faith and where by reason of exceptional narrowness, shallowness or shape of this specific piece of property at the time of the effective date of the district zoning regulations, or where by reason of exceptional topographical conditions or other extraordinary or exceptional circumstances that the strict application of the terms of the zoning regulations actually prohibit the use of this property in the manner similar to that of other property in the zoning district where it is located.

2.

A variance may be granted from any of the requirements of the regulations, except that no variance shall permit any use not permitted or conditionally permitted by the zoning district requirements.

3.

A request for a variance may be granted, upon a finding of the board that all of the following conditions have been met. The board shall make a determination on each condition, and the finding shall be entered in the record.

a.

The variance requested arises from such condition which in unique to the property in question and which is not ordinarily found in the same zone or district; and is not created by an action or actions of the property owner or applicant.

b.

The granting of the permit for the variance will not adversely affect the rights of adjacent property owners represented in the application.

c.

The strict application of the provisions of the zoning regulations of which the variance is requested will constitute unnecessary hardship upon the property owner represented in the application.

d.

The variance desired will not adversely affect the public health, safety, morals, order, convenience, prosperity, or general welfare.

e.

The granting of the variance desired will not be opposed to the general spirit and intent of the zoning regulations.

4.

In granting a variance, the board may impose such conditions, safeguards and restrictions upon the premises benefitted by the variance as may be necessary to reduce or minimize any potentially injurious effect of such variance upon other property in the neighborhood, and to carry out the general purpose and intent of these regulations.

9.23.

Conditional uses. To grant as an exception to the provisions of these zoning regulations, the establishment of those conditional uses that are expressly authorized to be permitted in a particular zoning district or districts. In no event shall exceptions to the provisions of the zoning regulations be granted where the conditional use or exception contemplated is not specifically listed as a conditional use in the zoning regulations. Further, under no conditions shall the board have the power to grant an exception where the conditions of this exception, as established by these regulations, are not found to be present.

1.

The board shall not grant a conditional use permit unless it shall, in each specific case, make specific written findings of fact directly based upon the particular evidence presented to it, that support conclusions that:

a.

The proposed conditional use complies with all applicable provisions of these regulations, including intensity of use regulations, yard regulations and use limitations.

b.

The proposed conditional use at the specified location will contribute to and promote the welfare or convenience of the public.

c.

The proposed conditional use will not cause substantial injury to the value of other property in the neighborhood in which it is to be located.

d.

The location and size of the conditional use, the nature and intensity of the operation involved in or conducted in connection with it, and the location of the site with respect to streets giving access to it are such that the conditional use will not dominate the immediate neighborhood so as to prevent development and use of neighboring property in accordance with the applicable zoning district regulations. In determining whether the conditional use will so dominate the immediate neighborhood, consideration shall be given to:

1)

The location, nature and height of buildings, structures, walls and fences on the site, and

2)

The nature and extent of landscaping and screening on the site.

e.

Off-street parking and loading areas will be provided in accordance with the standards set forth in these regulations, and such areas will be screened from adjoining residential uses and located so as to protect such residential uses from any injurious effect.

f.

Adequate utility, drainage, and other such necessary facilities have been or will be provided.

g.

Adequate access roads or entrance and exit drives will be provided and shall be so designed to prevent traffic hazards and to minimize traffic congestion in public streets and alleys.

h.

Adjoining properties and the general public shall be adequately protected from any hazardous or toxic materials, hazardous manufacturing processes, obnoxious odors or unnecessarily intrusive noises.

2.

In addition to the general conditions listed above which apply to all conditional uses, the board shall not grant a conditional use permit to the uses listed below unless the specific conditions applicable to that use are met.

a.

Day care centers for more than ten children or adults:

1)

Shall provide at least 100 square feet of open space per child. This open space shall be completely enclosed by a solid or semi-solid fence or wall at least six feet, but not more than eight feet, high and having a density of not less than 80 percent.

2)

Shall provide a loading zone capable of accommodating at least two automobiles for picking-up or dropping-off passengers.

3)

Shall conform with all requirements of the State of Kansas.

4)

Shall not exceed 18 hours of operation in a residential district. Twenty-four-hour operations may be permitted in commercial districts.

b.

Feedlots:

1)

Manure shall be removed or disposed of by spraying or spreading on land followed by discing or plowing; grinding or dehydrating in properly designed dehydrators; or stockpiling in a compost plant in an isolated area in such a manner as not to create a water pollution problem.

2)

Chemical sprays and poisons intended for insect and rodent control shall be used in accordance with recommendations of the manufacturer.

3)

All ground surfaces within pens shall be graded and compacted so as to ensure positive drainage.

4)

Surface runoff shall be so controlled that no appreciable amount of soil or manure is carried into any roadway ditch or drainage way.

c.

Auto wrecking yards, junk yards, salvage yards, and scrap processing yards:

1)

Shall be located at least 300 feet from a residential district zone.

2)

The operation shall be conducted wholly within a noncombustible building or within an area completely enclosed by a fence or wall at least eight feet high. The fence or wall shall be of uniform height, color and texture, and shall be maintained in good condition by the property owner. No scrap, junk or other salvaged materials shall be piled to exceed the height of this wall or fence.

3)

No junk or salvaged material shall be loaded, unloaded or stored, either temporarily or permanently outside the enclosing building, fence or wall.

d.

Funeral, mortuary or crematory services shall be located on a collector or arterial street as shown in the comprehensive plan.

e.

Wireless cellular towers or wind-powered generating systems, hereinafter referred to as wireless cell towers or wind energy conversion systems (WECS), shall conform to the following standards:

1)

Site review for either wireless cellular towers or WECS systems will be performed by the planning commission before an application is submitted to the board of zoning appeals for the conditional use hearing. The planning commission will review the factors in this section prior to the board of zoning appeals public hearing.

2)

All wireless cellular towers or WECS tower structures shall comply with the design and construction techniques certified by a licensed or registered engineer. Compliance shall be certified in writing by the manufacturer's engineering staff or a registered structural engineer. Where structural components of an installation or tower structure vary from the standard design or specifications, the proposed modifications shall be certified by a registered structural engineer for compliance with local codes.

3)

All wireless cellular towers or WECS towers with an exterior climbing apparatus shall have the exterior climbing apparatus located not closer than 12 feet from the ground and shall have a locked anti-climb device installed on the tower.

4)

Safety wires shall be installed on the turnbuckles of the guy wires for all guyed wireless cellular or WECS towers.

5)

A WECS tower shall be equipped with both manual and automatic controls to limit the rotational speed of the blade below the design limits of the rotor. The conformance of the rotor and over speed control design with good engineering practices shall be certified by the manufacturer's engineering staff or by a registered mechanical engineer. The compatibility of the tower and the rotor shall also be certified by the manufacturer or by a registered mechanical engineer.

6)

Maximum height on properties between one-half acre to one acre will be 80 feet (this is for property less than one acre in size). There is no height limit with one acre or more of property (except it must meet all setback requirements).

7)

No part of a wireless cellular or WECS tower shall be located within or over drainage, utility or other established easements. No part of a wireless cellular or WECS tower shall be located within or over any required minimum front, side or rear yard setback.

8)

Set backs are as follows:

a)

The structure including guy wires must be at least ten feet from property lines for every foot of height plus ten feet (example, if a structure is 60 feet then the set back from the property line is 60 feet plus ten feet).

b)

All other setbacks and right-of-ways already in place must be met and observed.

9)

Noise for a WECS tower must remain at 50 decibels or less at the closest neighboring inhabited dwelling unit (should testing be required it is at the tower owners expense) or 60 decibels at the property line whichever is less.

10)

Construction of the WECS turbine must be approved by a wind certification program/structural engineer, comply with the National Electric Code, and a copy provided for files at City Hall.

11)

Written proof is required from the electric utility company that they have been contacted and have approved the project with said proof to be filed with City Hall.

12)

There can be no interference with microwaves, radio, television or with any navigation equipment or with any other companies providing such services.

13)

Tower installers must carry at least a minimum of $500,000.00 liability insurance.

14)

All such towers are a "conditional use" and must go through a public hearing with the board of zoning appeals. The board may review the application as to character of neighborhood, traffic, public utilities or public health and safety issues associated with building of these towers.

15)

These WECS regulations will apply to commercial projects which will be interconnected with utility distribution systems and/or transmission grids. All wireless cellular or WECS towers must be approved in writing by all applicable regulatory bodies and by the utility company.

a)

Site review will be performed by the planning commission before an application is submitted to the board of zoning appeals for the conditional use hearing. The planning commission will review the following factors prior to the board of zoning appeals public hearing:

i.

Site specific.

ii.

Land use.

iii.

The noise level of a WECS tower is required to be less than 50 decibels at property line and less than 50 decibels at the nearest structure occupied by humans.

iv.

Endangered species (check with National Wildlife for endangered species).

v.

Soil Erosion.

vi.

Public safety.

vii.

Company reputation, insurance and financial ability to remove and do reclamation to site should it be abandoned.

b)

The board of zoning appeals will look at the following requirements to be sure they are met.

i.

Setback requirements.

a.

500 feet or total height of tower whichever is greater, plus 50 feet from roads or property lines.

b.

1,000 feet from any residential structure.

c.

Total height plus 50 feet from any residential accessory building (garage, shed) and any agricultural accessory structure.

ii.

The lowest point of the rotor blade on a WECS tower must be at least 80 feet from the ground.

iii.

Surety Bond must be in place prior to construction and to insure decommission of the equipment.

iv

A site and placement plan must be provided along with the identified funding source.

v.

All foundations must be removed to four feet below grade when decommissioned.

vi.

No logos or advertising may be on the tower.

vii.

Must be assurance of no interference by WECS tower operations with television, microwaves, radio, telecommunications, cellular communications, or navigation.

16)

No dwelling unit may be built within the setback distance required for setbacks of towers.

17)

Construction may not begin until the following requirements are met:

a.

Planning commission has reviewed the site plan and approved the location.

b.

Board of zoning has set conditions and approved the conditional use permit.

c.

The electric utility company has issued written approval.

d.

Power purchase agreements are in effect.

e.[f.]

Requirements of all state and federal laws and regulations have been satisfied.

f.[g.]

Single-family dwellings on separate lots but attached to adjacent dwellings by means of a common wall shall conform to the following standards:

1)

The common wall between attached units shall be on the side lot line separating the two lots and shall not be subject to side yard requirements providing there are no doors, windows, vents or other openings in the common wall.

2)

No unit shall have a common wall on more than two sides.

3)

No units shall have a depth greater than three times its width.

4)

Any exterior wall which is not a common wall must meet all yard requirements.

5)

Each lot must have direct access to a public street.

6)

The deed to each lot must include covenants requiring the proper and timely reconstruction of any damaged or destroyed dwellings.

g.[h.]

Single-family detached dwellings with one side yard equal to one foot or less (zero lot-line dwellings) shall conform to the following standards:

1)

Zero lot-line dwellings shall meet all front and rear yard requirements.

2)

For any zero lot-line dwelling, the lot-line wall (defined as that wall of the dwelling on the side lot line) shall have no windows, doors, vents or other openings nor shall any window on any wall face that side lot line.

3)

The side yard requirement for a zero lot-line dwelling on the side opposite the lot-line wall shall be twice the normal side yard requirement of the zone or 12 feet, whichever is smaller.

4)

No two zero lot-line dwellings shall have their lot-line wall along the same side lot line, nor shall any zero lot-line dwelling have its lot-line wall adjacent to any lot or tract of land not developed for zero lot-line dwellings.

5)

No lot line wall shall be located on a side lot-line adjacent to any public right-of-way.

6)

The required yard setbacks for each zero lot-line lot shall be either shown on the subdivision plat or recorded as a restrictive covenant on the property deed.

h.[i.]

Bed and breakfasts subject to the following requirements:

1)

Two off-street parking spaces with one additional off-street parking space per lodging room shall be provided.

2)

The structure shall be no smaller than 2,500 square feet in living area.

3.

In granting a conditional use, the board may impose such conditions, safeguards and restrictions upon the premises benefitted by the conditional use as may be necessary to reduce or minimize any potentially injurious effect of such conditional uses upon other property in the neighborhood, and to carry out the general purpose and intent of these regulations.

9.24.

Conditions of determinations. In exercising the foregoing powers, the board, in conformity with the provisions of this act, may reverse or affirm, wholly or partly, or may modify the order, requirement, decision or determination, and to that end shall have all the powers of the officer from whom the appeal is taken, may attach appropriate conditions, and may issue or direct the issuance of a building permit.

A majority of the board shall constitute a quorum for the transaction of business, and a concurring vote of a majority of the entire board shall be necessary to reverse any order, requirement, decision or determination of the zoning administrator, or to decide in favor of the applicant upon any matter which it is required to pass under these regulations, or to affect any variation in such regulation.

(Ord. No. 1088, exh. A(9.20—9-24), 10-4-1982; Ord. No. 1125, § 2, 10-17-1983; Ord. No. 1519, § 4, 10-25-2010; Ord. No. 1526, §§ 2, 3, 5-23-2011; Ord. No. 1571, § 2, 7-6-2015)

9.31.

The procedure for requesting a hearing before the board shall be as follows:

1.

All applications to the board shall be in writing on forms provided by the board.

2.

All applications shall be accompanied by an ownership list, obtained from county records, listing the legal description and the name and address of the owners of all property located within 200 feet of the boundaries of the property included in the application.

3.

The board shall fix a reasonable time for the hearing of an application, and notice of the time, place and subject of each hearing shall be published in the official newspaper (as designated by the governing body) at least 20 days prior to the date fixed for the public hearing. A copy of the notice of public hearing shall be sent to each party of interest, each person on the ownership list, and each planning commission member.

4.

An application shall be accompanied by a filing fee of $75.00. A separate filing fee of $75.00 shall be required for each request.

9.32.

In addition to the above requirements, certain applications require additional information as follows:

1.

Appeals.

a.

An application for an appeal shall be filed within 60 days after a ruling has been made by the zoning administrator.

b.

A copy of the order, requirement, decision or determination of the zoning administrator which the applicant believes to be in error shall be submitted.

c.

A clear and accurate written description of the proposed use, work or action in which the appeal is involved and a statement justifying the appellant's position.

d.

Where necessary, a plot plan, drawn to scale, in duplicate showing existing and proposed plans for the area in question shall be submitted.

2.

Variances.

a.

The applicant shall submit a statement, in writing, justifying the variance requested, indicating specifically the enforcement provisions of the zoning regulations from which the variance is requested, and outlining in detail the manner in which it is believed that this application will meet each of the four conditions as set out in section 9.22 of this article.

b.

The applicant shall submit a sketch, in duplicate, drawn to scale and showing the lot or lots included in the application, the structures existing thereon, and the structures contemplated necessitating the variance requested. All appropriate dimensions and any other information which would be helpful to the board in consideration of the application should be included.

3.

Conditional uses.

a.

The applicant shall submit a statement in writing justifying the conditional use applied for, and indicating under which article and section of the zoning regulations the board of zoning appeals believes to have jurisdiction.

b.

The applicant shall prepare and submit in duplicate at the time of filing the application, a detailed plot plan drawn to scale, showing all existing and proposed structures, property lines with dimensions, parking spaces, points of ingress and egress, driveways, and any other information which would be helpful to the board in consideration of the application.

(Ord. No. 1088, exh. A(9.30—9.32), 10-4-1982)

9.41.

In making any decision varying or modifying any provision of the zoning regulations or in granting an exception to the district regulations, the board shall impose such restrictions, terms, time limitations, landscaping, screening, and other appropriate safeguards as needed to protect adjoining property.

9.42.

The board may require a performance bond to guarantee the installation of improvements such as parking lot surfacing, landscaping, etc. The amount of the bond shall be based on a general estimate of cost for the improvements as determined by the board, and shall be enforceable by or payable to the governing body in the sum equal to the cost of constructing the required improvements.

9.43.

In lieu of the performance bond requirement, the board may specify a time limit for the completion of such required improvements and, in the event the improvements are not completed within the specified time, the board may declare the granting of the application null and void after reconsideration.

(Ord. No. 1088, exh. A(9.40), 10-4-1982)

Any person, persons, department or departments of the government, jointly or separately aggrieved by any decision of the board may present to the district court having jurisdiction, a petition, duly verified, stating that such decision is illegal in whole or in part, specifying the grounds of the illegality and asking for relief therefrom. Such petition shall be presented to the court within 30 days after the date filing the decision of the board in the office of the city clerk.

(Ord. No. 1088, exh. A(9.50), 10-4-1982)