A board of zoning appeals is created for the City of Leavenworth. Such board shall consist of five members, all of whom shall be residents of the City of Leavenworth. Members shall be appointed by the mayor with the consent of the city commission. Appointments shall be made for three-year terms. Vacancies shall be filled by appointment for the unexpired term. Members of the board shall serve without compensation.

(Ord. No. 7996, § 1, 6-14-2016; Ord. No. 8197, § 1, 10-11-2022)

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 resolutions. The board shall keep minutes of its proceedings, showing the description of evidence presented, the findings of facts by the board, the decision 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 board immediately and shall be of public record.

A.

Secretary. The secretary of the board of zoning appeals shall be a member of the city staff appointed by the director.

B.

Meetings. Unless notified otherwise the members of the board of zoning appeals will meet regularly once each month, at such time and place as is fixed by resolution. They shall select one of their members as chairman and one as vice-chairman, who shall serve one year or until their successors have been selected. Special meetings may be called at any time by the chair or in his absence, by the vice-chairman. A majority of the board shall constitute a quorum for the transaction of business. The board shall cause a proper record to be kept of its proceedings.

C.

Quorum. 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 building inspector, 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. 7996, § 1, 6-14-2016)

The board shall have those powers and duties authorized by this appendix and by K.S.A. 12-759 and any amendment thereto.

A.

Appeals. After proper hearing to decide appeals where it is alleged there is an error in an order, requirement, decision, or determination made by an administrative official in the enforcement of these regulations, except where the city commission is specifically empowered to hear an appeal.

1.

Appeals to the board may be taken by the person aggrieved, or by any officer or department of the city government affected by the rigid enforcement of these development regulations. Such appeal shall be filed with the secretary of the board, as shall be herein prescribed. The administrative official 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 secretary of the board 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 a court of record.

B.

Variances. To authorize in specific cases a variance from the specific terms of these development regulations which will not be contrary to the public interest and where, owing to special conditions, a literal enforcement of the provisions of these development regulations will, in an individual case, result in unnecessary hardship, provided the spirit of these development regulations shall be observed, public safety and welfare secured, and substantial justice done. Such variance shall not permit any use not permitted by the development regulations of the city in such district. Rather, variances shall only be granted for the detailed requirements of the district such as area, bulk, yard, parking or screening requirements.

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 zoning ordinance, or where by reason of exceptional topographical conditions or other extraordinary or exceptional circumstances that the strict application of the terms of the development regulations actually prohibits the use of his property in the manner similar to that of other property in the zoning district where it is located.

2.

A request for a variance may be granted, upon a finding of the board that all of the following conditions have been met:

a.

The board shall make a determination on each condition, and the finding shall be entered in the record.

b.

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

c.

That the granting of the permit for the variance will not adversely affect the rights of adjacent property owners or residents.

d.

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

e.

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

f.

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

3.

In granting a variance, the board may impose such conditions, safeguards, and restrictions upon the premises benefited 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 development regulations.

C.

Exceptions. To grant exceptions which are specifically listed as permitted in these development regulations. In no event shall exceptions to the provisions of the development regulations be granted where the exception contemplated is not specifically listed as in the development regulations. An exception is not a variance. Further, under no conditions shall the board have the power to grant an exception when the conditions of this exception, as established by these development regulations, are not found to be present.

D.

Conditions of determination. In exercising the foregoing powers, the board, in conformity with the provisions of these development regulations, 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 administrative official and may attach appropriate conditions, restrictions or safeguards necessary to protect public interest and welfare.

(Ord. No. 7996, § 1, 6-14-2016; Ord. No. 8164, § 1, 6-8-2021)

A.

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

1.

Application submission. All applications to the board shall be in writing on forms provided by the secretary of the board. Said application shall be completed in its entirety and filed in the office of the city clerk with all supporting data.

2.

Notification of nearby property owners. All applications shall be accompanied by an ownership list certified by an attorney, a title company or a list and map prepared by the county GIS department listing the names and addresses of all property owners located within 200 feet, excluding streets and alleys, of the boundaries of the property included in the application. If the property is adjacent to the city limits, the area shall be expanded to 1,000 feet of property owners outside the city limits.

3.

Public notification. 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 city commission) 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 the chair of the planning commission.

B.

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 ten days after a ruling has been made by an administrative official and furnished to the appellant in writing.

b.

A copy of the written ruling of the administrative official 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, 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 the enforcement provisions of the specific 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 five conditions as set out in herein.

b.

The applicant shall submit six copies of a sketch 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.

Exceptions.

a.

The applicant shall submit a statement in writing justifying the exception applied for and indicating under which article and section of the development regulations the board of zoning appeals is believed to have jurisdiction.

b.

The applicant shall prepare and submit at the time of filing, the application, six copies of 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.

C.

Conditions of approval. In making any decision varying or modifying any provisions of the development 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.

D.

Performance bonds. 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 for 125 percent of necessary improvements, and shall be enforceable by or payable to the city commission in the sum equal to the cost of constructing the required improvement. In lieu of the performance bond requirements, 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. 7996, § 1, 6-14-2016)

Any person, official or governmental agency dissatisfied with any order or determination of the board may bring an action in the district court of the county to determine the reasonableness of any such order or determination. Such appeal shall be filed within 30 days of the final decision of the board, per K.S.A. 12-759.

(Ord. No. 7996, § 1, 6-14-2016; Ord. No. 8197, § 1, 10-11-2022)