(a)

The board of adjustment, established pursuant to the provisions of this Appendix D, Chapter 19, of the Municipal Code, shall continue, and the members thereof shall continue to serve as members of the board for the remainder of their terms. Said board consists of five (5) members appointed by the city council, each for a term of five (5) years. Members shall be removable for cause by the city council upon written charges and after a public hearing. Vacancies shall be filled for the unexpired term of any member whose term becomes vacant. Matters relating to the powers and duties of the board shall be as provided by statute and the terms of this ordinance.

(1)

Proceedings. The board of adjustment shall adopt rules necessary to the conduct of its affairs and in keeping with the provisions of this ordinance. Meetings shall be held at the call of the chairperson and at such other times as the board may determine. The chairperson or, in his/her absence, the acting chairperson may administer oaths and compel the attendance of witnesses. All meetings shall be open to the public.

a.

The board of adjustment 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 examination and other official actions, all of which shall be a public record and be immediately filed in the office of the board. The presence of three (3) members shall be necessary to constitute a quorum.

(2)

Hearings; appeals; notice. Appeals to the board of adjustment may be taken by any person aggrieved or by any officer, department, board or bureau of the city affected by any decision of the zoning administrator regarding this ordinance. Such appeals shall be taken within ten (10) days by filing with the zoning administrator and with the board of adjustment a notice of appeal specifying the grounds thereof. The zoning administrator shall forthwith transmit to the board all papers constituting the record from which the appealed action was taken.

a.

The board of adjustment shall fix a reasonable time for the hearing on the appeal, give public notice thereof, as well as due notice to the parties in interest, and decide the same within a reasonable time. At the hearing, any party may appear in person or by agent or attorney. Before an appeal is filed with the board, the appellant shall pay a fee of fifty dollars ($50.00) to the city clerk to be credited to the general fund of the city.

(3)

Stay of proceedings. An appeal stays all proceedings in furtherance of the action appealed from, unless the zoning administrator certifies to the board of adjustment, after the notice of appeal is filed with him/her, that, by reason of facts stated in the certificate, a stay would, in his/her opinion, cause imminent peril to life and property. In such case, proceedings shall not be stayed other than by a restraining order which may be granted by the board of adjustment or by a court of record on application, on notice to the zoning administrator and on due cause shown.

(a)

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

(1)

Administrative review. To hear and decide appeals where it is alleged there is error in any order, requirement, decision or determination made by the zoning administrator in the enforcement of this ordinance.

(2)

Special exceptions. To permit the following exceptions to the district regulations set forth in this ordinance, provided all exceptions shall, by their design, construction and operation, adequately safeguard the health, safety and welfare of the occupants of adjoining and surrounding property, shall not impair an adequate supply of light and air to adjacent property, shall not increase congestion in the public streets, shall not increase public danger of fire and safety and shall not diminish or impair established property values in surrounding areas:

a.

To permit the erection and use of a building or the use of the premises or vary the height, yard or regulations in any location for a public service corporation for public utility purposes or for purposes of public communication which the board determines is reasonably necessary for the public convenience or welfare.

b.

To permit the use of property in residential districts for off street parking purposes as accessory to permitted residential district uses where said parking lots do not immediately adjoin the permitted residential district use.

c.

To permit the extension of a zoning district where the boundary line of a district divides a lot in single ownership as shown of record or by existing contract or purchase at the time of the passage of this ordinance; but in no case shall such extension of the district boundary line exceed forty (40) feet in any direction.

d.

To permit exceptions to any front yard, rear yard, side yard, lot width, lot area, height or projection limitation or to the minimum number of off street parking or loading spaces required by the district regulations of this ordinance; provided that such exception shall not exceed twenty-five (25) percent of the required number or limitation in question; and, further, provided that such exception may be permitted only where:

i.

The exception relates entirely to a use classified by the applicable district regulations as a permitted principal use, a permitted accessory use, a permitted sign or to off street parking or loading areas accessory to such permitted use;

ii.

The exception is reasonably necessary due to practical difficulties related to the land or property in question; and

iii.

Such practical difficulties cannot be overcome by any feasible alternative other than the exception; and

iv.

The exception is in harmony with the essential character of the neighborhood of the property in question.

e.

To issue conditional use permits and decide such matters as may be required by other sections of this ordinance.

(3)

Variances; conditions governing applications; procedures. To authorize upon appeal in specific cases such variance from the terms of this ordinance as will not be contrary to the public interest where, owing to special conditions, a literal enforcement of the provisions of this ordinance would result in unnecessary hardship. A variance from the terms of this ordinance shall not be granted by the board of adjustment unless and until:

a.

A written application for a variance is submitted demonstrating that:

i.

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;

ii.

Literal interpretation of the provisions of this ordinance would deprive the applicants of rights commonly enjoyed by other properties in the same district under the terms of this ordinance;

iii.

The special conditions and circumstances do not result from the actions of the applicant;

iv.

Granting the variance requested will not confer on the applicant any special privilege that is denied by this ordinance to other lands, structures or buildings in the same district.

b.

The board of adjustment shall find that the reasons set forth in the application justify the granting of the variance and that the variance is the minimum variance that will make possible the reasonable use of the land, building or structure;

c.

The board of adjustment shall find that the granting of the variance will be in harmony with the general purpose and intent of this ordinance and will not be injurious to the neighborhood or otherwise detrimental to the public welfare.

(b)

In granting any variance, the board of adjustment may prescribe appropriate conditions and safeguards in conformity with this ordinance. Violation 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 ordinance as provided in Section 19.02.090 of this ordinance.

(c)

Under no circumstances shall the board of adjustment grant a variance to allow a use not permissible under the terms of this ordinance in the district involved or any use expressly or by implication prohibited by the terms of this ordinance in said district.

(a)

In exercising the above-mentioned powers, the board may, in conformity with the provisions of law, reverse or affirm, wholly or partly, or modify the order, requirement, decision or determination appealed from and may make such order, requirement, decision or determination as it believes proper and, to that end, shall have all the powers of the zoning administrator. The concurring vote of three (3) of the members of the board shall be necessary to reverse any order, requirement, decision or determination of the zoning administrator or to decide in favor of the applicant on any matter upon which it is required to pass under this ordinance; provided, however, that the action of the board shall not become effective until after the resolution of the board, setting forth the full reason for its decision, and the vote of each member participating therein, has been filed. Such resolution, immediately following the board's final decision, shall be filed in the office of the board and shall be open to public inspection.

(b)

Every variation and exception granted or denied by the board shall be supported by a written testimony or evidence submitted in connection therewith.

(c)

Any taxpayer or any officer, department, board or bureau of the city or any person or persons jointly or severally aggrieved by any decision of the board may present to a court of record 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.