1.   Creation, Membership, and Duration. A Board of Adjustment, (“Board”), is hereby established, which will consist of five members each serving a five-year term as appointed by the Council.

2.   Jurisdiction. The Board of Adjustment is hereby vested with the following jurisdiction and authority:

   A.   To hear and act upon all applications for special exceptions in the manner prescribed and as specifically authorized in this Code;

   B.   To hear and act upon appeals from any administrative order, requirement, decision, or determination made by the Building and Zoning Enforcement Officer or Building Official under this Code;

   C.   To hear and act upon the applications for variances from the terms provided in this Code in the manner prescribed and as specifically authorized by and subject to the standards established herein;

   D.   To interpret the provisions of this Code and the district map in the manner provided for herein; and,

   E.   To hear and act upon all matters referred to it or upon which it is required to consider under this Code, as prescribed by the applicable provisions of the Code of Iowa.

3.   Rules of Procedure - Meetings.

   A.   Official meetings of the Board of Adjustment will be held upon:

      (1)   The written request of the Chairperson submitted to the Building and Zoning Enforcement Officer; or,

      (2)   The written request of a majority of the Board members submitted to the Building and Zoning Enforcement Officer; or,

      (3)   Approval of an official motion duly considered and approved by a majority of the Board members at an official meeting of the Board; or,

      (4)   The written request of the Building and Zoning Enforcement Officer if approved by the Board Chairperson; or

      (5)   The timely receipt by the Building and Zoning Enforcement Officer of a properly submitted and completed Petition for Hearing and Consideration of Action application filed by any interested, affected person.

   B.   Any official meetings called for or requested to be held by the Board of Adjustment will be held on the first and third Thursdays of the month, unless otherwise agreed to by a majority vote of the Board members at any official meeting, or unless otherwise requested in writing by the Mayor, or as otherwise provided for herein.

   C.   Hearings and continuances will be conducted as follows:

      (1)   The first meeting held to consider a requested action will be held to receive any and all public input and to conduct any necessary fact-finding.

      (2)   Any person may appear and testify at the meeting, when recognized by the Chairperson, either in person, or they may be represented by a duly authorized agent.

      (3)   The Chairperson may administer oaths and compel the attendance of witnesses.

      (4)   Whenever possible, decisions by the Board will be made during the same hearing at which the testimony and evidence are presented.

      (5)   The Board may continue a case (temporary adjournment), deferring the decision for two weeks, except that the first meeting will permit public comment, whereas unless otherwise agreed upon by the Board, the second meeting will be limited to Board member questions, discussions, and comments.

   D.   All meetings conducted by the Board will be open to the public subject to the allowances provided for in Chapter 21 of the Code of Iowa.

   E.   The Board of Adjustment may grant or deny a request, in whole or in part, or may “conditionally” grant or deny a request as they so deem necessary and appropriate at their sole discretion.

   F.   Meetings of the Board of Adjustment may be temporarily adjourned and reconvened at a later date without taking any action as deemed necessary and appropriate by approval of a majority of the Board members.

   G.   Petitions for Withdrawals, Amendments, or Postponements By the Applicant. Any petitioned matter submitted to the Board of Adjustment may be withdrawn, amended, or postponed and action upon said matter may be temporarily postponed, once, for a period not to exceed 30 calendar days from the date of the originally scheduled meeting,

      (1)   Providing that a detailed, written, explanatory request from the petitioner asking for said withdrawal, time extension, and/or amendment of said petition is received by the Building and Zoning Enforcement Officer no later than four working days prior to the originally scheduled meeting date.

      (2)   In the case of a properly and timely filed request for withdrawal of the petition, the Board will not meet but the Secretary of the Board will acknowledge and file the request for the permanent record and the Board will be notified.

      (3)   In the case of a properly and timely filed request for a temporary extension of time and/or an amendment to the original petition, the Board will continue to meet as scheduled and will acknowledge the request for an extension and/or amendment for the permanent record and consider and act upon the request(s) at the meeting.

      (4)   The Board may grant, deny, or conditionally grant or deny the request for the full-time extension requested or some other time extension as the Board may deem appropriate, but any such extension will not exceed 30 calendar days as spelled out above.

      (5)   If the Board denies a request for an extension, then the meeting will be conducted as scheduled at the specified time and place. The Board may grant, deny, or conditionally grant or deny the request to consider and act upon an amended petition as the Board may deem appropriate.

      (6)   Any additional expenses incurred by the City as a result of granting an extension or amendment request which was submitted by the petitioner will be borne by the petitioner and paid in full to the City prior to the date set for the rescheduled meeting.

   H.   Petition for Postponement by Property Owners. Consideration and action upon said matter may be temporarily postponed, once, for a period not to exceed 30 calendar days from the date of the originally scheduled meeting, if petitioners:

      (1)   Provide a detailed, written, explanatory request for such action, signed by 20 percent or more of the property owners whose property boundaries lie within 200 feet, (inclusive of any and all public and quasi-public right-of-way distances) of the boundaries of the property upon which the proposed matter is to be considered, is received by the Building and Zoning Enforcement Officer no later than four working days prior to the originally scheduled meeting date.

      (2)   If such a request is properly and timely filed, the Board’s action(s) will be conducted as spelled out above.

   I.   Record Keeping and Rulemaking. The Board of Adjustment will 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 will also keep records of its hearings and other official actions.

      (1)   A copy of every rule or regulation, order, requirement, decision, or determination of the Board of Adjustment will be filed immediately in the office of the Building and Zoning Enforcement Officer.

      (2)   The Board will adopt other rules and procedures, not otherwise in conflict with this Zoning Code or with the applicable State statutes and select or appoint such officers as it deems necessary.

4.   Removal From Office. The Board of Adjustment members will recommend to the Council, removal from the office of any Board member having more than three consecutive, unexcused absences. Additionally, the Council may remove any member of the Board for cause upon written charges and after holding a public hearing on said matter.

5.   Finality of Decisions of the Board of Adjustment. All decisions and findings of the Board of Adjustment will be final and will only be subject to judicial review as provided for by law.

6.   Variances.

   A.   Authority. The Board of Adjustment, after a public hearing, may vary the regulations of this Zoning Code in harmony with its general purpose and intent only in the specific instances hereinafter set forth and only in accordance with the standards hereinafter prescribed.

   B.   Initiation of Variance. Variances affecting a particular property may be requested by any person, firm, corporation, or government agency having a freehold interest in that property, a possessory interest entitled to exclusive possession of that property, or a contractual interest which may become a freehold interest of an exclusive possessory interest in that property, either of which is specifically enforceable, by submitting to the Building and Zoning Enforcement Officer a properly completed “Petition for Hearing and Consideration of Action” application.

   C.   Application for Variance. An application for a variance must be filed in writing with the Building and Zoning Enforcement Officer. Said application will contain such information as the Board of Adjustment may, by rule, require.

   D.   Hearing on Application. Upon acceptance in proper form of the application referred to in Section 170.34(6)(C) above by the Building and Zoning Enforcement Officer, the Board of Adjustment will hold at least one public hearing on the requested variance within 30 calendar days from the date of acceptance of the application, subject to the provisions of Section 170.37(5).

   E.   Notice of Hearing. Notice of the time and place of such public hearing will be:

      (1)   Published at least once, not less than seven calendar days, or more than 20 calendar days, before the hearing, in a newspaper of general circulation in the City.

      (2)   Said notice will also be delivered by certified mail not less than seven calendar days, nor more than 20 calendar days, before the hearing to all property owners whose property boundaries lie within 200 feet, (inclusive of any and all public and quasi-public right-of-way distances), of the boundaries of the property upon which the use, or structure is located that is the subject of the requested variance.

      (3)   No less than seven working days prior to the public hearing on a petition requesting a variance, the applicant shall post a notice sign on or near the property upon which the application is being made and shall remove and return the sign immediately following the public hearing on the application. The sign will be provided to the applicant by the Board Secretary upon receipt of a signed deposit, which shall be refunded if the sign is returned in good condition within seven working days of the date of the decision on the application.

   F.   Standards for Variances. The Board of Adjustment will not vary the regulations of this Code, as authorized in this section, unless there is evidence presented to it in each specific case that:

      (1)   Because of the particular physical surroundings, shape, or topographical conditions of the specific property involved, a particular hardship to the property owner would result, as distinguished from a mere inconvenience if the strict letter of the regulations were to be carried out;

      (2)   The conditions, upon which a petition for a variance is based, are unique to the property for which the variance is sought and are not applicable, generally, to other property within the same zoning classification;

      (3)   The purpose of the variance is not based exclusively upon a desire for financial gain;

      (4)   The alleged difficulty or hardship is caused by this Zoning Code and has not been created by any persons having an interest in the property;

      (5)   The granting of the variance will not be detrimental to the public welfare or injurious to other property or improvements in the neighborhood in which the property is located;

      (6)   The requested variance will not impair an adequate supply of light and air to adjacent property, substantially increase the congestion of the public streets, increase the danger of fire, endanger the public safety, or substantially diminish or impair property values within the neighborhood;

      (7)   The purpose of the variance will not be to establish a use otherwise excluded from the particular district in which it is requested, except as noted otherwise herein; and,

      (8)   The requested variance will not be contrary to the public interest and will ensure that the spirit of this Zoning Code will be observed and substantial justice done.

   G.   Conditions. The Board of Adjustment may impose such conditions and restrictions upon the premises benefited by a variance as may be necessary to comply with the standards for variances established in this section. Said conditions and restrictions, if imposed, must be adhered to and failure to do so will automatically and immediately cause the variance to be revoked.

   H.   Recording Required. Approved variances and attached conditions must be recorded in the County Recorder’s office at the applicant’s expense. The recording fee will be paid at City Hall at the same time that the permit for the project being granted a variance is issued.

   I.   Authorized Variances. Variances from the regulations of this Zoning Code may be granted by the Board of Adjustment only in accordance with the “Standards for Variances” established in Section 170.37(6) and may be granted only in the following instances and in no others:

      (1)   To permit any yard or setback line of lesser dimension than required by the applicable regulations;

      (2)   To permit any building or structure to exceed the height limitations imposed by the applicable regulations;

      (3)   To permit the use of a lot or lots for a use otherwise prohibited solely because of the insufficient area or width of the lot or lots, but in no event will the respective area and width of the lot or lots be less than 70 percent of the required area and width;

      (4)   To permit the same off-street parking facility to qualify as required facilities for two or more uses provided that substantial use of such facility by each user does not take place at approximately the same hours of the same days of the week. (See Section 170.52(5)(F))

      (5)   To modify or waive the off-street parking and loading space requirements or approve any special location plan in any of the districts wherever the character or use of a building is such as to make unnecessary the full provision of parking or loading facilities, or where such regulations would impose an unreasonable hardship upon the use of the lot, as contrasted with merely being granted for a convenience. (See Section 170.52)

      (6)   To permit the alteration or enlargement of an existing building or use located in a district which prohibits that use of land or building; or the height and area of buildings existing at the time of the adoption of this Zoning Code where such alteration or enlargement is a necessary incident to the use of the structure existing at the time of the adoption, amendment, or change of this Zoning Code;

      (7)   To permit the reconstruction of a nonconforming building which has been damaged by explosion, fire, act of God, or the public enemy to the extent of more than 65 percent of its assessed valuation as determined by the records of the County Assessor’s Office, where the Board finds some compelling public necessity requiring a conditional continuance of the nonconforming use.

      (8)   To permit a lower level of flood protection for floodplain uses than required by the floodplain management regulations contained in Section 170.27.

      (9)   To permit an increase in the allowable light intensity on any adjoining property, or to allow any other deviation from the lighting and related provisions of this Zoning Code. Any person requesting a variance of this nature will, in addition to those requirements for filing as spelled out in Section 170.34(6), add to their application the following information:

         a.   Type and use of outdoor light involved.

         b.   Specific exemption requested; including proposed foot candle intensity on any and all adjacent, effected buildings.

         c.   Physical size of outdoor light involved.

         d.   Type of illumination.

         e.   Rated lumen output of lamp or lamps per location.

         f.   Proposed location of outdoor light.

         g.   Duration of use of outdoor light.

         h.   Site and necessary elevation plans to depict vertical and horizontal relationships between proposed light source and any and all adjacent, effected buildings.

      (10)   To assist and enhance economic development activities in areas of the City designated as Urban Renewal Areas (URA) or Tax Increment Financing (TIF) areas, provided such variance is consistent with the standards outlined in Section 170.34(6)(I) and the City’s Comprehensive Development Plan.

   J.   Findings on Variances. All decisions by the Board of Adjustment on requests for variances must be supplemented with a written finding of fact stating the conformity or nonconformity, as the case may be, of their decision with the standards for variance set forth in this chapter.

   K.   Effective Date(s) and Revocation of a Variance. Variances become effective immediately upon their approval by the Board and will be valid for a period no longer than six months from the date of such decision and will automatically be revoked unless the building permit is obtained within such period and the erection or alteration of a building is substantially complete or the use commenced within such period or unless otherwise specified in the Board's official action granting the variance.

   L.   Effect of Denial of a Variance Request or Voluntary Withdrawal of Petition. No application for a variance that has been denied wholly, or in part, by the Board of Adjustment or that has been voluntarily withdrawn by the petitioner will be resubmitted for consideration, in its original form, for a period of at least one year from the date of said order of denial or the date of the withdrawal request, except on the grounds of new evidence being presented to and being found to be valid by the Board of Adjustment. This section does not preclude any person from submitting a new, modified application for substantially the same variance. Modified may mean any one of the following: a new petitioner, different set-back footage, altered structural or special features, etc.

7.   Appeals.

   A.   Authority. The Board of Adjustment, after a public hearing, may vary any administrative order, requirement, decision, or determination made by the Building and Zoning Enforcement Officer or Building Official.

   B.   Initiation of Appeal. Appeals affecting a particular property may be requested by any person, firm, corporation, or government agency having a freehold interest in that property, a possessory interest entitled to exclusive possession of that property, or a contractual interest which may become a freehold interest of an exclusive possessory interest in that property, either of which is specifically enforceable, by submitting to the Building and Zoning Enforcement Officer a properly completed Petition for Hearing and Consideration of Action Application.

   C.   Application for Appeal. An application for an appeal must be filed in writing with the Building and Zoning Enforcement Officer. Said application will contain such information as the Board of Adjustment may, by rule, require.

   D.   Imminent Peril to Life and Property. An appeal properly filed and accepted will stay all proceedings in furtherance of the action appealed from unless the Building and Zoning Enforcement Officer certifies to the Board of Adjustment, within 24 hours after the application for the appeal has been filed and accepted by them, that by reason of acts stated in the certificate a stay would, in their opinion, cause imminent peril to life and property.

   E.   Hearing on Application. Upon acceptance in proper form of the application referred to in Section 170.34(3) above by the Building and Zoning Enforcement Officer, the Board of Adjustment will hold at least one public hearing on the appeal within 30 calendar days from the date of acceptance of the application, subject to the provisions of Section 170.34(3).

   F.   Notice of Hearing. Notice of the time and place of such public hearing will be:

      (1)   Published at least once, not less than seven calendar days, nor more than 20 calendar days before the hearing, in a newspaper of general circulation in the City.

      (2)   Said notice will also be delivered by certified mail not less than seven calendar days, nor more than 20 calendar days, before the hearing to all property owners whose property boundaries lie within 200 feet, (inclusive of any and all public and quasi-public right-of-way distances), of the boundaries of the property upon which the use, or structure, is located that is the subject of the appeal.

      (3)   No less than seven working days prior to the public hearing on a petition requesting an appeal, the applicant shall post a notice sign on or near the property upon which the application is being made and shall remove and return the sign immediately following the public hearing on the application. The sign will be provided to the applicant by the Board Secretary upon receipt of a signed deposit, which shall be refunded if the sign is returned in good condition within seven working days of the date of the decision on the application.

   G.   Findings on Appeals. In exercising its appellate power, the Board of Adjustment may reverse, or affirm, wholly or partly, or may modify the order, requirement, decision, or determination appealed from and may make any such order, requirement, decision, or determination as it so deems necessary, and to that end will have all the powers of the officer from whom the appeal is taken.

8.   Special Exceptions.

   A.   Authority. The development and administration of this Zoning Code is based upon the division of the City into zoning districts in which the use of land and buildings and the bulk and location of buildings and structures in relation to the land are substantially uniform. It is recognized, however, that there are certain uses which, because of their unique characteristics, cannot be properly classified in any particular district or districts, without consideration in each case, of the impact of those uses upon neighboring land and of the public need for the particular use at the particular locations. To that end, the Board of Adjustment may grant special exceptions to the strict interpretation of this Zoning Code in harmony with its general purpose and intent only in specific instances hereinafter set forth and only in accordance with the standards hereinafter prescribed. Such special exceptions fall into two categories:

      (1)   Uses publicly operated or traditionally affected with a public interest; and,

      (2)   Uses entirely private in character but of such a nature that their operation may give rise to unique problems with respect to their impact upon neighboring property or public facilities.

   B.   Initiation of Special Exceptions. Consideration of a special exception affecting a particular property may be requested by any person having a freehold interest in land, a possessory interest entitled to exclusive possession, or a contractual interest which may become a freehold interest of an exclusive possessory interest, either of which is specifically enforceable, by submitting to the Building and Zoning Enforcement Officer a properly completed Petition for Hearing and Consideration of Action.

   C.   Application for Special Exceptions. An application for a special exception must be filed in writing with the Building and Zoning Enforcement Officer. Said application will contain such information as the Board of Adjustment may, by rule, require. The application will include a statement in writing by the applicant accompanied by adequate evidence showing that the proposed special exception will, on review, conform to the standards set forth in Section 170.34(6).

   D.   Hearing on Application. Upon acceptance in proper form of the application referred to in Section 170.34(3) above by the Building and Zoning Enforcement Officer, the Board of Adjustment will hold at least one public hearing on the proposed special exception within 30 calendar days from the date of acceptance of the application, subject to the provisions of 170.34(3).

   E.   Notice of Hearing. Notice of the time and place of such public hearing will be:

      (1)   Published at least once, not less than seven calendar days, or more than 20 calendar days before the hearing, in a newspaper of general circulation in the City.

      (2)   Said notice will also be delivered by certified mail not less than seven calendar days, nor more than 20 calendar days, before the hearing to all property owners whose property boundaries lie within 200 feet, (inclusive of any and all public and quasi-public right-of-way distances), of the boundaries of the property upon which the use, or structure is located that is the subject of the proposed special exception.

      (3)   No less than seven working days prior to the public hearing on a petition requesting a special exception, the applicant shall post a notice sign on or near the property upon which the application is being made and shall remove and return the sign immediately following the public hearing on the application. The sign will be provided to the applicant by the Board Secretary upon receipt of a signed deposit, which shall be refunded if the sign is returned in good condition within seven working days of the date of the decision on the application.

   F.   Standards for Special Exceptions. The Board of Adjustment will not grant a special exception to the provisions of this Zoning Code, as authorized in this section, unless there is evidence presented to it in each specific case that:

      (1)   The establishment, maintenance, or operation of the special exception will not be detrimental to or endanger the public health, safety, morals, comfort, or general welfare;

      (2)   The special exception will not be detrimental to the use and enjoyment of other property in the immediate vicinity for the purposes already permitted, nor substantially diminish and impair property values within the neighborhood;

      (3)   The establishment of the special exception will not impede the normal and orderly development and improvement of the surrounding property for uses permitted in the district;

      (4)   Adequate utilities, access roads, drainage, or necessary facilities have been or are being provided;

      (5)   Adequate measures have been, or will be, taken to provide ingress and egress so designed as to minimize traffic congestion in the public streets; and

      (6)   The special exception will, in all other respects, conform to the applicable regulations of the district in which it is located, except as such regulations may, in each instance, be modified by the Board of Adjustment.

   G.   Conditions and Guarantees. Prior to the granting of any special exception, the Board of Adjustment may stipulate such conditions and restrictions upon the establishment, location, construction, maintenance, and operation of the special exception as it deems necessary for the protection of the public interest and to secure compliance with the standards and requirements specified in Section 170.34(8). In all cases in which special exceptions are granted with conditions or restrictions, the Board of Adjustment may require such evidence and guarantees, as it deems necessary, to insure that the conditions or restrictions stipulated in connection therewith are being and will be complied with. Said conditions or restrictions, if imposed, must be adhered to and failure to do so will automatically and immediately cause the special exception to be revoked.

   H.   Findings on Special Exceptions. All decisions by the Board of Adjustment on requests for special exceptions must be supplemented with a written finding of fact stating the conformity or nonconformity, as the case may be, of their decision with the standards for special exceptions set forth in this article.

   I.   Effective Date(s) and Revocation of Special Exceptions. In addition to the provisions of Section 170.34(8), and unless otherwise specified, special exceptions granted become effective immediately and will be valid for a period no longer than six months from the date of such decision and will automatically be revoked unless the special exception is fully and completely established during such period or unless otherwise specified in the Board’s official action granting the special exception.

   J.   Effect of Denial of Special Exception Request or Voluntary Withdrawal of Petition. No application for a special exception that has been denied wholly, or in part, by the Board of Adjustment, or that has been voluntarily withdrawn by the petitioner, will be resubmitted for consideration, in its original form, for a period of at least one year from the date of said order of denial or the date of the withdrawal request, except on the grounds of new evidence found to be valid by the Board of Adjustment. This section does not preclude any person from submitting a new, modified application for substantially the same special exception. Modified could mean any one of the following: a new petitioner, different or conditional use, altered structural or special features, etc.

9.   Other Conditions By the Board of Adjustment. The Board of Adjustment may also conduct hearings on and consider action on the following items on the following items:

   A.   Interpretation of Zoning District Map. Where the application of the rules for the interpretation of district boundaries contained in Sections 170.12 and 170.34 leaves a reasonable doubt as to the boundary between two districts the Board of Adjustment will interpret the map in such a way as to carry out the intent and purposes of this Zoning Code.

   B.   Temporary Uses and Permits. The Board of Adjustment may issue a permit for the temporary use of a building or premises in any district for a purpose or use that does not conform to the regulations prescribed by this Code, provided that such use is of a true temporary nature and does not involve the erection of substantial structures. Such permit may be granted in the form of a temporary and immediately revocable permit for not more than one 12-month period, subject to such conditions as will safeguard the public health, safety, convenience, and general welfare.

   C.   Certain Uses Located in Industrial Districts. In determining whether certain uses will be located in an I-1 or an I-2 District, the Board of Adjustment will give due regard to the nature and condition of all adjacent uses and structures, and the consistency therewith of the proposed use and development. Before authorizing a use in an industrially-zoned district, the Board will determine whether the proposed use would be hazardous, harmful, noxious, offensive, or a nuisance to the surrounding properties by reason of noise, smoke, odor, vibration, dust and dirt, cinders, noxious gases, glare and heat, fire and safety hazards, sewage wastes and pollution, transportation and traffic, aesthetic, and psychological effects. (See Sections 170.25 and 170.26)