Moscow Mills City Zoning Code
ARTICLE XI
Board of Adjustment
§ 46.705 Board of Adjustment created/appointment.
There is hereby created within and for the City of Moscow Mills a Board of Adjustment with the powers and duties as hereinafter set forth. The Mayor of the City, by and with the consent of the Board of Aldermen, shall appoint five citizens to such Board.
§ 46.710 Membership.
A.
The Board of Adjustment shall consist of five members. The membership of the first Board appointed shall serve respectively, one for one year, one for two years, one for three years one for four years and one for five years. Thereafter members shall be appointed for terms of five years each.
B.
The Board shall elect its own Chairman who shall serve for one year.
C.
All members shall be removable for cause by the appointing authority upon written charges and after public hearings.
D.
Vacancies shall be filled for the unexpired term of any member whose term becomes vacant. The Administrative Officer shall notify the appointing authority in advance when terms of members are about to expire.
E.
The Mayor of the City, by and with the consent of the Board of Aldermen, shall appoint two alternate members of the Board of Adjustment who shall each serve for a term of three years. The alternate members of the Board of Adjustment shall serve only when a regular member of said Board is unable to act as a member of said Board on any matter before the Board, or when one or more regular members is absent from a meeting of said Board. Such alternate members of the Board shall serve and act as regular members of the Board, except that such alternate members may not be elected Chairman or Secretary of the Board. The alternate members of the Board may be removed in accordance with this section.
F.
All members of the Board of Adjustment shall serve without compensation.
§ 46.715 Procedure.
The Board shall adopt rules in accordance with the provisions of this chapter Meetings of the Board shall be held at the call of the Chairman and at such times as the Board may determine. The Chairman, or in his/her absence, the Vice-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 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 immediately filed in the office of the City Clerk and shall be a public record. The concurring vote of four members of the Board shall be necessary to reverse any order, requirement, decision, or determination of any Administrative Official, or to decide in favor of the applicant on any matter upon which it is required to pass under any such Ordinance, or to effect any variation or relief of this chapter. All testimony, objections thereto and rulings thereon, shall be taken down by a reporter employed by the Board for that purpose.
§ 46.720 Appeals.
A.
Application for appeals to this chapter shall be processed in the following manner:
1.
Appeal or variance from action resulting from the enactment of this chapter shall be taken in the following manner:
a.
Appeals or variances to the Board of Adjustment may be taken by anyone having, a vested interest in the property being affected by the enactment of this chapter. Such appeal shall be taken within 90 days of the date of the action which is appealed.
b.
A fee shall be paid to the City for each appeal or variance to help defray the costs of advertising and other administrative expenses involved. These administrative expenses shall include the cost of certified mailings. The Board of Aldermen and Planning and Zoning Commission shall be exempt from this fee.
c.
The appeal shall contain or be accompanied by such legal descriptions, maps, plans, names and addresses of property owners within 200 feet, and any other information as may be requested by the City Clerk or Board of Adjustment Chairman so as to completely describe the decisions or actions being appealed and the reason for such an appeal.
d.
The City Clerk shall review the application and determine that sufficient data is contained to adequately describe the situation to the Board of Adjustment. If the data is not adequate, the City Clerk shall return the application to the applicant for additional information. Completed applications shall be forwarded to the Board of Adjustment along with his/her written record of the facts.
e.
The Chairman of the Board of Adjustment shall schedule one or more public hearings (as deemed necessary) within 60 days after an application is filed. The hearing(s) shall be published in the legal newspaper and a local newspaper, both of general circulation in the City of Moscow Mills, at least one week prior to the hearing(s). The Administrative Officer shall post notice on the property involved for a period of one week prior to the hearing(s) and shall send notices of the public hearing(s) by regular mail to the property owners within 200 feet of the property involved in the appeal or variance. If no action is taken within 90 days from the date of filing, the appeal shall be considered approved.
f.
An appeal stays all proceedings in furtherance of the action appealed from unless the Administrative Officer certifies to the Board of Adjustment that by reason of facts in the record a stay would, in his/her opinion, cause imminent peril to life and property, in which case proceedings shall not be stayed otherwise than by a restraining order which may be granted by the Board of Adjustment or by a court of record on application or notice to the Officer from whom the appeal is taken and on due cause shown.
§ 46.725 Appeal or variance criteria.
A.
There are two types of requests which may be placed before the Board of Adjustment, they are as follows:
1.
An appeal for interpretation. The petitioner requests an interpretation of the zoning regulations and alleges the Administrative Officer has erred in the interpretation of a specific case.
2.
A request for a variance.
a.
The petitioner requests some variation in the dimensional requirements of the zoning regulations whereby their strict application would involve undue hardship.
b.
There are different considerations which the Board of Adjustment must review in making, determinations concerning appeals and variances:
(1)
In reviewing an appeal for an interpretation, the Board of Adjustment may consider, but not be limited to, the following questions:
(a)
What specific action was taken by the Administrative Officer?
(b)
What specific section of the Zoning Code did the Official use as a basis for taking this action?
(c)
What interpretation is the Administrative Officer making of this specific section in the Zoning. Code as it pertains to action taken?
(d)
Interpretation is being made by the petitioner?
(2)
In reviewing a variation, the Board of Adjustment may consider, but not be limited to, the following questions:
(a)
If the petitioner complied with the provisions of this Zoning Code (doesn't obtain the variance he she is requesting), will he she not be able to get a reasonable return from, or make reasonable use of the property?
(b)
Does the hardship result from the strict application of these regulations?
(c)
Is the hardship suffered by the property in question?
(d)
Is the hardship the result of the applicant's own action?
(e)
Is the requested variance in harmony with general purpose and intent of the zoning regulations and does it preserve the spirit?
(f)
If the variance is granted, will the public safety and welfare have been assured and will substantial justice have been done?
§ 46.730 Appeal to Circuit Court.
A.
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 (aggrieved) person or persons or any officer, department, board or bureau of the City may present to the Circuit Court of Lincoln County, Missouri, a petition duly verified. Said petition shall set forth that such decision is illegal, in whole or in part, and specify' the grounds of its illegality. Such petition shall be presented to the court within 30 days after the filing of the decision in the office of the Board of Adjustment.
B.
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 aggrieved parties attorney, which shall not be less than 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.
C.
The Board 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 all shall be verified.
D.
If, upon the hearing, it shall appear to the court that testimony is necessary for the proper disposition of the matter, it may take evidence or appoint a referee to take such evidence as it may direct and report the same to the Court with findings of fact and conclusions of law. These shall constitute a part of the proceedings upon which the 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.
E.
Costs shall not be allowed against the Board unless it shall appear to the court that it acted with gross negligence, in bad faith, or with malice in making the decision appealed from.