The five-member board of adjustment created by the mayor and board of aldermen under section 701 of the city's former zoning ordinance shall be continued under this chapter. Each member of the board of aldermen shall be appointed for a three years. Members of the board of adjustment may be removed from office by the mayor and board for cause upon written charges and after public hearing. Vacancies shall be filled by resolution by the mayor and board for the unexpired term of the member affected.

(Ord. of 2-16-2010, § 700)

The zoning board of adjustment shall have the following powers and duties:

(1)

Administrative review. To hear and decide appeals where it is alleged that there is an error in any order, requirement, decision, or determination made by the administrative official in the enforcement of this chapter. Findings and decisions of such appeals by the board shall be referred to the mayor and board of aldermen for final action.

(2)

Advisory. To hear and advise the mayor and board of aldermen and the board of adjustment on petitions for amendment to this chapter. Findings and decisions on such amendments shall be referred to the board of adjustment and the mayor and board of aldermen for final disposition.

(3)

Special exception. To hear, decide and recommend to the mayor and board of aldermen for final consideration and action, such special exceptions as the board of adjustment is specifically authorized to pass on by the terms of this chapter; to consider such questions as are involved in determining whether special exceptions should be granted, and to recommend special exceptions with the conditions and safeguards as are appropriate under this chapter or to deny special exceptions when not in harmony with the purpose and intent of this chapter. A condition use shall not be considered by the board of adjustment, unless and until:

a.

Application. A written application for a special exception is submitted indicating the section of this chapter under which the special exception is sought and stating the grounds on which it is requested.

b.

Notice. A public hearing shall be scheduled and notice shall be given at least 15 days in advance of the public hearing in an official paper or paper of general circulation in the city specifying a time and place for said hearing. Notice of such hearing shall be posted on the property for which the special exception is sought at the city hall and in one other public place at least 15 days prior to the public hearing.

c.

Public hearing. The public hearing shall be held and conducted by the board of adjustment. Any party may appear in person, or by agent or attorney.

d.

Recommendations. The board of adjustment shall make a finding that it is empowered under the section of this chapter described in the application to recommend the granting of the special exception and that granting of the condition use will not adversely affect the public interest; or the board of adjustment may recommend denial.

e.

Certifications. Before any special exception shall be recommended to be granted, the board shall make written findings certifying compliance with the specific rules governing special exceptions and that satisfactory provision and arrangement has been made concerning the following, where applicable:

1.

Ingress to and egress from property and proposed structures thereon with particular reference to automotive and pedestrian safety and convenience, traffic flow and control, and access in case of fire or catastrophe.

2.

Off-street parking and loading area, where required.

3.

The economic, noise, glare, dust, odors, or other harmful effects of the special exception on adjoining properties and properties generally in the district.

(i)

Refuse and service areas.

(ii)

Screening and buffering with reference to type, dimensions, and character.

(iii)

Utilities, with reference to locations and adequacy.

(iv)

Required yards and other open spaces.

4.

General compatibility with adjacent properties and other property in the district.

5.

District standards for design.

(4)

Variances. To hear, decide and recommend to the mayor and board for final consideration and action, a variance from the terms of this chapter as defined in section 42-24. A variance from the terms of this chapter shall not be considered, except in the case of planned unit development, submitted in accordance with the provision of section 42-99, by the board of adjustment, unless and until:

a.

Application. A written application for a variance is submitted demonstrating:

1.

That special conditions and circumstances exist which are peculiar to the land, structure or building involved and which are not applicable to other lands, structures, or buildings in the same district.

2.

That literal interpretation of the provisions of this chapter would deprive the applicant of rights commonly enjoyed by other properties in the same district under the terms of this chapter.

3.

That the special conditions and circumstances do not result from the actions of the applicant.

b.

Notice. A public hearing shall be scheduled (except as allowed by subsection (4)f of this section) and notice shall be given at least 15 days in advance of public hearing in an official paper or paper of general circulation in the city specifying a time and place for said hearing. Notice of such hearing shall be posted on the property for which the variance is sought, at the city hall, and in one other public place at least 15 days prior to the public hearing.

c.

Hearing. The public hearing shall be held and conducted by the board of adjustment. Any party may appear in person, or by agent or by attorney.

d.

Findings. The board of adjustment shall make findings that the requirements for the written application for a variance have been met by the applicant; that the variance requested is the minimum variance that will make possible the reasonable use of the land, building, or structure; and that the granting of the variance will be in harmony with the general purpose and interest of this chapter and will not be injurious to the neighborhood, or otherwise detrimental to the public interest.

e.

Recommendations. In recommending the granting of any variance, the board of adjustment may prescribe appropriate conditions and safeguards in conformity with this chapter. Violations of such conditions and safeguards, when made a part of the terms under which the variance is granted, shall be deemed a violation of this chapter and punishable under section 42-185.

f.

Minor variances. Certain variances, defined as "minor variances" and hereinafter identified, may be granted by the board of adjustment, without a public hearing under the following procedures:

1.

Only the following variances may be considered and granted without a public hearing: a variance for height, area and size of a structure, yards and open spaces (specifically excepting and not including lot width and area) that do not exceed the requirements set out in the various zones in this chapter by more than 33 percent.

2.

Upon the building official receiving a properly completed application for a variance as identified in subsection (4)f.1 of this section, he shall satisfy himself that the request is proper and meets the requirements for allowing a variance. The building official shall then mail a notice by first class mail with official receipt of mailing to all property owners as shown on the official city tax records within a distance of 160 feet of the property involved in the application, that a variance has been requested, giving the details of such application. For the purpose of mailing notices as provided herein, the applicant shall provide the building official with the names and address of such property owners within 160 feet of the subject property. These notices shall be mailed to the addresses for such property owners as shown on said tax rolls. Also, each member of the board of adjustment and the mayor and board of aldermen shall be mailed to the addresses for such property owner within said 160 feet shall, within 12 days of the postmark date of said notice, file any objection, in writing, with the building official to the granting of the variance requested.

3.

If no objection is filed with the building official within said 12-day period, the variance shall stand approved and any required building permit issued. The board of adjustment shall record and ratify such approvals at its next meeting.

4.

If an objection is filed by any person to the granting of said variance, the board of adjustment shall hold a public hearing thereon.

5.

Notwithstanding the provisions of this subsection (4), the board of adjustment on its own motion, or when directed by the mayor and board of aldermen, may hold a public hearing on any variance that comes within the terms of said subsection (4) of this section, whether or not an objection is filed. If a public hearing is timely called for by either the board of adjustment or the mayor and board of aldermen, a variance shall not be granted under the provisions of this subsection (4), until after said public hearing and after consideration and recommendation by the board of adjustment and final action by the mayor and board of aldermen. A public hearing must be called for by the board of adjustment or by the mayor and board of aldermen with said 12-day period.

g.

All variances granted under the terms of this subsection (4) shall be reported in writing to the mayor and board of aldermen for their record and ratification.

(Ord. of 2-16-2010, § 701)

(a)

The zoning board of adjustment shall elect a chairperson and vice-chairperson from its membership and shall prescribe rules, in keeping with the provisions of this chapter, for the conduct of its affairs.

(b)

Meetings of the zoning board of adjustment shall be held at the call of the chairperson and at such other times as the board may determine. The board shall 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 shall keep records of its examinations and other official actions, all of which shall be public record and be immediately filed in the office of the board.

(Ord. of 2-16-2010, § 702)

The applicant and/or owner shall have the burden to present and adequately prove all necessary factors and matters in support of the application.

(Ord. of 2-16-2010, § 703)