(a)   There is hereby established a Board of Zoning Appeals, which shall consist of five members appointed by the Mayor and approved by Council.

   (b)   The five members first appointed shall serve for terms of one, two, three, four and five calendar years, or parts thereof, respectively; thereafter, appointments shall be for five-year terms, beginning January 1. Each member shall serve until his or her successor is appointed.

   (c)   Vacancies shall be filled by the Mayor and shall be for the respective unexpired terms.

   (d)   The members of the Board may receive such compensation as Council provides.

(Ord. 1130. Passed 2-1-88; Ord. 1584. Passed 9-17-07.)

   (a)   The Board of Zoning Appeals shall elect a Chairperson and a Vice-Chairperson from its membership, shall appoint a Secretary and shall prescribe rules for the conduct of its affairs.

   (b)   The Chairperson of the Board of Zoning Appeals may administer oaths and compel the attendance of witnesses in any matter coming within the purview of this Zoning Code.

(Ord. 1130. Passed 2-1-88; Ord. 1584. Passed 9-17-07.)

   (a)   The Board of Zoning Appeals shall require a quorum of three members at all of its meetings.

   (b)   Every decision of the Board shall be by motion, and the concurring vote of three members shall be necessary to affect any order.

(Ord. 1130. Passed 2-1-88; Ord. 1584. Passed 9-17-07.)

   The Board shall keep minutes of its proceedings as a public record. Such records shall contain a full record of the findings of the Board, together with all documents pertaining thereto, and showing the vote for each member on all questions, or if absent or failing to vote, indicating such fact.

(Ord. 1130. Passed 2-1-88; Ord. 1584. Passed 9-17-07.)

   The Board of Zoning Appeals shall have the following powers and duties:

   (a)   To hear and decide appeals pursuant to Section 1137.09 (Appeals), where it is alleged there is error of law in any order, requirement, decision or determination made by the Zoning Inspector in the enforcement of this chapter or any amendments thereto.

   (b)   To hear and decide variances, pursuant to Section 1137.10 (Variances).

   (c)   To hear and decide conditional uses pursuant to Section 1137.11 (Conditional Use Review Standards).

   (d)   To interpret the Zoning Map pursuant to Section 1137.12 (Interpretation of Zoning Map).

   (e)   To hear and decide temporary uses pursuant to Section 1157.16 (Temporary Buildings and Uses).

   (f)   To hear and decide appeals and variances to Chapter 1319 (Flood Damage Prevention) of the Building Code pursuant to Section 1319.14 (Appeals; Variances).

(Ord. 1584. Passed 9-17-07.)

   (a)   All applications to the Board of Appeals shall be submitted to the Zoning Inspector in writing, and on any forms prescribed therefore. All applications shall set forth the reason the application should be granted.

   (b)   Fees, as prescribed in this Zoning Code, shall be paid in full prior to any action by the Board.

   (c)   If the Board finds it necessary to draw upon any planning, legal, engineering or any other expert testimony, such fee or service may be required at the expense of the applicant as a part of the application.

(Ord. 1584. Passed 9-17-07.)

   (a)   When a notice of an appeal, variance, conditional use, exception or nonconforming use has been filed in proper form with the Board of Zoning Appeals:

      (1)   The Secretary or other designated person shall immediately place such request upon the calendar for a hearing, and shall state on any required notice the time, place and object of the hearing.

      (2)   Such notice shall be served personally or by certified mail, return receipt requested, addressed to the parties making the request, at least five days prior to the date of the scheduled hearing.

      (3)   Written notice of a Board hearing shall be given by certified mail, return receipt requested, or personally, to the owners of property within, contiguous to and directly across the street from the land to which such appeal, variance, conditional use, exception, nonconforming use, temporary use or interpretation of the Zoning Map is related. All notices shall be sent to addresses given on the last tax assessment roll or other legally designated address list.

      (4)   Public hearings are not required, but may be held, if determined necessary by the Board. Public hearings shall be advertised by at least one publication in one or more newspapers of general circulation in the Village at least ten days before the date of such public hearing.

      (5)   The Board may recess such hearings from time to time, and if the time and place of the continued hearing is publicly announced at the time of adjournment, no further notice shall be required.

(Ord. 1130. Passed 2-1-88; Ord. 1584. Passed 9-17-07.)

   (a)   The Board of Zoning Appeals shall act according to the procedure specified by law, including this Zoning Code.

   (b)   No action shall be taken on any request for any appeal, variance, conditional use, exception, or nonconforming use prior to a hearing by the Board.

   (c)   The Board shall make a decision within ten days after the hearing, unless additional time is necessary because of unusual circumstances.

   (d)   The hearing shall be open to the public and any party may appear in person or by attorney.

(Ord. 1130. Passed 2-1-88; Ord. 1584. Passed 9-17-07.)

   (a)   Appeals to the Board may be taken by any person or by any officer or board of the Village adversely affected by the decision of the Zoning Inspector respecting the interpretation of this Zoning Code.

   (b)   Appeals shall be made not later than 30 calendar days after the date of the action that is the subject of the grievance.

   (c)   An appeal shall stay all proceedings in furtherance of the action appealed from, unless the Zoning Inspector, whose decision is appealed from, certifies to the Board after the notice of appeal has been filed, that by reason of facts stated in the certificate, a stay would, in his or her opinion, cause imminent peril to life or property. In such case, proceedings shall not be stayed by other than a restraining order granted by the Board or by a court having lawful jurisdiction.

   (d)   Appeals of Board Decisions to Council. A decision of the Board of Zoning Appeals may be appealed to Council. Such appeal must be filed with the Clerk-Treasurer not later than ten calendar days after the decision of the Board is handed down. The decision of Council is final.

(Ord. 1130. Passed 2-1-88; Ord. 1584. Passed 9-17-07.)

   In granting a variance, the Board may impose such conditions as it may deem necessary to protect the public health, safety or welfare and to further the purpose and intent of this Zoning Code. Such conditions shall be made a part of and be attached to the required Zoning Certificate. In every instance of granting a variance by the Board, there must be a showing by the Board that it has weighed the interests of the owner against those of the neighboring property owners and the community as a whole.

   (a)   Area Variances. Where there are practical difficulties in carrying out the strict letter of this Zoning Code regarding yard, height, parking, and sign code requirements, the Board of Zoning Appeals may grant an area or bulk variance that is in harmony with the general purpose and intent of the Zoning Code and that most of the following tests apply:

      (1)   The variance will not adversely affect the delivery of governmental services.

      (2)   The property owner did not purchase the property with knowledge of the zoning restriction, unless such modification of the yard or lot area or width regulations is necessary to secure the appropriate improvement of a parcel of land that is too small to be appropriately improved without such modification, provided the parcel was separately owned at the time of passage of this chapter, or is adjacent to buildings that do not conform to the general restrictions applicable to their location.

      (3)   There are exceptional or extraordinary circumstances or conditions applying to the property involved or to the intended use or development of the property that do not apply generally to other properties or uses in the same zoning district or neighborhood that cannot be solved by some manner other than the granting of a variance.

      (4)   The granting of the variance will not alter the essential character of the locality or substantially impair environmental quality, property values or public safety or welfare in the vicinity.

      (5)   A variance is necessary for the applicant to enjoy a substantial property right possessed by other properties in the same zoning district and does not confer a special privilege ordinarily denied to other properties in the district.

      (6)   The grant of a variance is necessary, not because it will increase the applicant's economic return, although it may have this effect, but because without a variance the applicant will be deprived of beneficial use or enjoyment of, or reasonable economic return from, the property.

   (b)   Exceptions to Permitted Uses. An exception to a permitted use may be granted by the Board only after review of an application therefore. The Board may impose such requirements and conditions as it may deem necessary for the protection of adjacent properties and the public interests. The Board shall not, however, have the right to change the intent of this Zoning Code by permitting any use that cannot be reasonably interpreted as intended in the district in question.

      (1)   The Board of Zoning Appeals may grant exceptions to permitted uses where the strict application of this Zoning Code would result in unnecessary hardship, as defined herein, for the applicant inconsistent with the general purpose and the intent of this Zoning Code or the provisions of this Zoning Code, due to conditions precedent or subsequent, are not precise enough or are too general to cover all applications.

      (2)   The Board of Zoning Appeals may permit the temporary use of a structure or premises in any district for a purpose of use that does not conform to the regulations prescribed elsewhere in this chapter for the district in which it is located, provided that such use is of a temporary nature and does not involve the erection of a substantial structure. A Zoning Certificate for such use shall be granted in the form of a temporary and revocable permit, for not more than a 12-month period, subject to such conditions as will safeguard the public health, safety, convenience and general welfare.

   (c)   Exceptions to Nonconforming Uses. The Board of Zoning Appeals may permit changes and extensions of existing, legal nonconforming uses as follows:

      (1)   A nonconforming use of a less objectionable nature may be substituted for an existing, legal nonconforming use;

      (2)   A nonconforming use may be substituted for an existing, legal nonconforming use existing at the time of enactment of this chapter if no structural alterations except those required by law or ordinance are made; provided, however, that in an “R” District, no change shall be authorized to any use which is not a permitted or conditional use in any “B” District;

      (3)   An existing, legal nonconforming use which occupies only a portion of an existing structure or premises may be extended throughout such structure or premises;

      (4)   An existing, legal nonconforming use may be extended when such extension will substantially make the nonconforming use more in character with its surroundings. Such extension shall not be greater than 50% of the size of the nonconforming use that existed at the time of passage of this Zoning Code;

      (5)   It may permit the extension of a district where the boundary line of a district divides a lot or tract held in a single ownership at the time of the passage of this chapter;

      (6)   An existing, legal nonconforming structure may be remodeled or repaired where the Board determines that such remodeling or repairing is in the best interest of the Village;

      (7)   An existing, legal nonconforming use or building may be altered or reconstructed, provided that such will make the nonconforming use substantially more in character with its surroundings;

      (8)   An existing, legal nonconforming building which has been damaged by explosion, fire, act of God, or the public enemy may be reconstructed to the extent of more than 51% of its fair market value where the Board finds some compelling necessity requiring a continuance of the nonconforming use and the primary purpose of continuing the nonconforming use is not to continue a monopoly.

(Ord. 1130. Passed 2-1-88 ; Ord. 1584. Passed 9-17-07.)

   The Board of Zoning Appeals shall hear and determine all conditional uses that are specifically listed in the various districts. Conditional uses, although often desirable, will more intensely affect the surrounding area in which they are located than the permitted uses of such districts. In considering a conditional use application, the Board may impose such conditions as it may deem necessary for the protection of adjacent properties and the public interest, including specific limitations as to future expansion.

   (a)   The following basic standards shall generally apply to all conditional uses such that the proposed development:

      (1)   Is specifically listed or interpreted as a conditional use in the district in question;

      (2)   Will be in keeping with the general objectives, or with any specific objective of the Mount Gilead Comprehensive Plan and/or the Zoning Code;

      (3)   Will be designed, constructed, operated and maintained so as to be harmonious and appropriate in appearance and nature with the existing or intended land use character of all adjacent uses and structures and physical development potential of the area and will not have undesirable effects on the surrounding area;

      (4)   Will not be hazardous or disturbing to existing or future neighboring uses;

      (5)   Will be served adequately by essential public facilities and services such as highways, streets, police and fire protection, drainage structures, refuse disposal, water and sewer, and schools; or that the person responsible for the establishment of the proposed use shall be able to provide adequately any such services;

      (6)   Will not involve uses, activities, processes, materials, equipment, and conditions of operation that will be detrimental to any persons, property, or the general welfare by reason of excessive production of traffic, noise, smoke, fumes, or odors;

      (7)   Will have vehicular approaches to the property which shall be so designed as not to create an interference with traffic on surrounding public thoroughfares.

   (b)   The following additional standards shall apply to conditional uses in any “S” or “R” District:

      (1)   The location and size of the use, the nature and intensity of the operations involved in or conducted in connection with it, its site layout and its relation to streets giving access to it shall be such that both pedestrian and vehicular traffic to and from the use and the assembly of persons in connection with it will not be hazardous, inconvenient or conflict with the normal traffic on residential streets, both at the time and as the same may be expected to increase with any prospective increase in the population of the area, taking into account convenient routes of pedestrian traffic, particularly of children, relation to main traffic thoroughfares and to street intersections, and the general character and intensity of development of the area;

      (2)   The location and height of buildings, the location, nature, and height of walls and fences, and the nature and extent of landscaping on the site shall be such that the use will not hinder or discourage the appropriate development and use of adjacent land and buildings.

   (c)   The following additional standards shall apply to conditional uses in any “B” or “M” District:

      (1)   The location and size of the use, the nature and intensity of the operations involved in or conducted in connection with it, its site layout, and its relation to streets giving access to it shall be such that vehicular traffic to and from the use will not be more hazardous than the normal traffic of the district, both at the time and as the same may be expected to increase with increasing development of the municipality, taking into account vehicular turning movements in relation to routes of traffic flow, relation to street intersections, sight distances, and relation to pedestrian traffic;

      (2)   The nature, location, size and site layout of the use shall be such that it will be a harmonious part of the business or industrial district in which it is situated, taking into account prevailing shopping habits, convenience of access by prospective patrons, the physical and economic relationships of one type of use to another, and characteristic groupings of uses in a commercial or industrial district.

(Ord. 1130. Passed 2-1-88; Ord. 1584. Passed 9-17-07.)

   Where the street or lot layout actually on the ground, or as recorded, differs from the street and lot lines as shown on the Zoning Map, the Board of Zoning Appeals, after notice to the owners of the property, shall interpret the Map in such a way as to carry out the intent and purpose of this Zoning Code.

(Ord. 1130. Passed 2-1-88; Ord. 1584. Passed 9-17-07.)