Malden City Zoning Code
ARTICLE XI
Board Of Adjustment
Section 400.310 Appointment, Term, Vacancies, Organization.
[Ord. No. 3121, 4-18-2016; Ord. No. 3265, 12-19-2022]
The Board of Adjustment is hereby created. The Board shall consist of five (5) members, who shall reside within twenty-five (25) miles of the City limits of the City of Malden, except as provided in Section 305.410, RSMo., appointed by the Mayor and approved by the City Council. The membership of the first Board appointed shall serve respectively one (1) for one (1) year, one (1) for two (2) years, one (1) for three (3) years, one (1) for four (4) years, and one (1) for five (5) years. Thereafter, members shall be appointed for terms of five (5) years each. Three (3) alternate members may be appointed to serve in the absence of or the disqualification of the regular members. All members and alternates shall be removable for cause by the appointing authority upon written charges and after public hearings. Vacancies shall be filled for the unexpired term of any member whose term becomes vacant. The Board shall elect its own Chairman who shall serve for one (1) year. The Board shall adopt rules in accordance with the provisions of any ordinance adopted pursuant to Sections 89.010 to 89.140, RSMo. Meetings of the Board shall be held at the call of the Chairman and at such other times as the Board may determine. Such Chairman, or in his/her absence the Acting Chairman, may administer oaths and compel the attendance of witnesses. All meetings of the Board shall be open to the public. The Board shall keep minutes of its proceedings, showing the vote of each member upon question or, if absent or failing to vote, indicating such facts and shall keep records of its examinations and other official actions, all of which shall be immediately filed in the office of the Board and shall be a public record. All testimony, objections thereto and rulings thereon, shall be taken down by a reporter employed by the Board for that purpose.
Section 400.320 Powers.
[Ord. No. 3121, 4-18-2016]
A.
The Board of Adjustment shall have the following powers:
1.
To hear and decide appeals where it is alleged there is an error in any order, requirement, decision or determination made by the Enforcement Officer in the enforcement of this Chapter and may affirm or reverse in whole or in part said decision of the Enforcement Officer.
2.
To hear requests for variances from the literal provisions of this Chapter, in instances where strict enforcement of this Chapter would cause undue hardship due to circumstances unique to the individual property under consideration, and grant such variances only when it is demonstrated that such action will be in keeping with the spirit and intent of the provisions of this Chapter. The Board shall not permit as a variance any use in a zone that is not permitted under this Chapter. The Board may impose conditions in the granting of a variance to ensure compliance and to protect adjacent property.
3.
Will hold public hearings in order to decide the following exceptions to or variations of this Chapter:
a.
To permit the extension of a district where the boundary line thereof divides a lot held in a single ownership at the time of adoption of this Chapter (April 18, 2016).
b.
Classify commercial or industrial uses not specifically listed in this Chapter.
c.
Permit reconstruction of a non-conforming building otherwise prohibited elsewhere in this Chapter.
d.
Vary the yard regulations where there is an exceptional or unusual physical condition of a lot not generally prevalent in the neighborhood, which condition when related to the yard regulations of this Chapter would prevent a reasonable or sensible arrangement of buildings on the lot.
e.
Vary the parking regulations where it is conclusively shown that the specific use of a building would make unnecessary the parking space otherwise required by this Chapter or where it can be conclusively shown that adequate off-street parking to serve a particular use has been provided by or is controlled by the municipality.
Section 400.330 Factors To Be Considered.
[Ord. No. 3121, 4-18-2016]
A.
In considering all appeals and proposed variations to this Chapter, the Board shall, before making any finding in a specific case, first determine that the proposed variation will not constitute any change in the District Map and will not impair an adequate supply of light and air to adjacent property or unreasonably increase the congestion in public streets or increase the danger of fire and safety or unreasonably diminish or impair established property values within the surrounding area, or in any other respect impair the public health, safety, comfort, morals and welfare of the City of Malden.
B.
The concurring vote of four (4) members of the Board shall be necessary to reverse any order, requirements, decision, or determination of the Enforcement Officer, or to decide in favor of the applicant on any matter upon which it is required to pass under this Chapter or to effect any variation of this Chapter.
C.
Any person or persons jointly or severally aggrieved by any decision of the Board of Adjustment, any neighborhood organization as defined in Section 32.105, RSMo., representing such person or persons or any officer, department, board or bureau of the City, may present to the circuit court of the county or city in which the property affected is located a petition, duly verified, setting forth that such decision is illegal, in whole or in part, specifying the grounds of the illegality. Such petition shall be presented to the court within thirty (30) days after the filing of the decision in the office of the Board. Upon the presentation of such petition, the court may allow a writ of certiorari directed to the Board of Adjustment to review such decision of the Board of Adjustment and shall prescribe therein the time within which a return thereto must be made and served upon the relator's attorney, which shall not be less than ten (10) days and may be extended by the court. The allowance of the writ shall not stay proceedings upon the decision appealed from, but the court may, on application, on notice to the Board and on due cause shown, grant a restraining order. The Board of Adjustment shall not be required to return the original papers acted upon by it, but it shall be sufficient to return certified or sworn copies thereof or of such portions thereof as may be called for by such writ. The return shall concisely set forth such other facts as may be pertinent and material to show the grounds of the decision appealed from and shall be verified. If, upon the hearing, it shall appear to the court that testimony is necessary for the proper disposition of the matter, it may take additional evidence or appoint a referee to take such evidence as it may direct and report the same to the court with his/her findings of fact and conclusions of law, which shall constitute a part of the proceedings upon which a determination of the court shall be made. The court may reverse or affirm, wholly or partly, or may modify the decision brought up for review. Costs shall not be allowed against the Board unless it shall appear to the court that it acted with gross negligence, or in bad faith, or with malice in making the decision appealed from. All issues in any proceedings under Sections 89.080 to 89.110, RSMo., shall have preference over all other civil actions and proceedings.
Section 400.340 Decision Of Appeal.
[Ord. No. 3121, 4-18-2016]
In exercising the above-mentioned powers the Board may, in conformity with the provisions of Sections 89.010 to 89.140, RSMo., and 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.