(a)

The lawful use of buildings and premises, except as otherwise may be provided in this chapter, although such does not conform to the provisions thereof, may be continued, but if such nonconforming use is discontinued, and vacant for a period of 12 months, any future use of the buildings or premises shall be in conformity with the provisions of this chapter.

(b)

This chapter shall not apply to existing structures nor to the existing use of any building, but shall apply to any alteration of a building to provide for its use for a purpose, or in a manner different from the use to which it was put before the alterations; provided that this chapter shall not prevent the restoration of a building damaged not more than 50 percent of its assessed valuation by fire, explosion, act of God, or the public enemy, or prevent the continuance of the use of such buildings or part thereof as such use existed at the time of such damage, or prevent a change of such existing use except under limitations provided herein in relation to the existing buildings or premises.

(Code 1997, § 16-511)

The planning commission and the city commission shall consider the following criteria when considering any application for rezoning or a conditional use permit, to the extent they are pertinent to the particular application. Consideration may also be given to other factors which may be relevant to a specific rezoning or conditional use application.

(1)

The character of the neighborhood.

(2)

The zoning and uses of property nearby.

(3)

The suitability of the subject property for the uses to which it has been restricted.

(4)

The extent to which the proposed use will detrimentally affect nearby property.

(5)

The length of time the subject property has remained vacant as zoned.

(6)

The relative gain to public health, safety, and welfare due to the denial of the application as compared to the hardship imposed upon the landowner, if any, as a result of denial of the application.

(7)

The economic impact on the owner of the subject property and the economic impact on the surrounding properties.

(8)

Recommendation of the city's staff.

(9)

Conformance of the requested change to the adopted comprehensive plan being utilized by the city.

(10)

The availability and adequacy of required utilities and services to serve the proposed use. These utilities and services include, but are not limited to, sanitary and storm sewers, water, gas, and electric service, police and fire protection, schools, parks, and recreation facilities, etc.

(11)

The extent to which the proposed use would adversely affect the capacity or safety of the portion of the street network influenced by the use, or present parking problems in the vicinity of the property.

(12)

The environmental impact the proposed use will generate, including, but not limited to, stormwater runoff, nighttime lighting, or other environmental conditions.

(13)

The ability of the applicant to satisfy any requirements (e.g., site plan, etc.) applicable to the specific use imposed pursuant to the zoning district regulations or other applicable ordinances.

(Code 1997, § 16-107)

There is hereby reestablished a city board of zoning appeals, to be named the Neodesha Board of Zoning Appeals. The members of the planning commission shall be designated to serve as the board of zoning appeals. The board of zoning appeals was originally created by Ordinance No. 1367, which was passed and approved on May 24, 1993.

(Code 1997, § 16-201)

The terms of the members of the board of zoning appeals shall run concurrently with their appointment to the planning commission.

(Code 1997, § 16-202)

The chairperson, vice-chairperson, and secretary of the planning commission shall also serve in the same capacity on the board of zoning appeals, and each shall be appointed by the members of the planning commission and shall be elected annually in January of each year. The secretary may or may not be a member of the planning commission.

(Code 1997, § 16-203)

The board of zoning appeals shall administer the details of appeals from or other matters referred to it regarding the application of this chapter. The board shall fix a reasonable time for the hearing of an appeal or any other matter referred to it. Notice of the time, place and subject of such hearing shall be published once in the official city newspaper at least 20 days prior to the date fixed for hearing. A copy of the notice shall be mailed to each party to the appeal.

(Code 1997, § 16-204)

Appeals to the board of zoning appeals may be taken by any persons aggrieved, or by any officer of the city, or any governmental agency or body affected by any decision of the officer administering the provisions of this chapter. Such appeal shall be taken within a reasonable time as provided by the rules of the board, by filing a notice of appeal specifying the grounds thereof, and the payment of the fee required therefor. The officer from whom the appeal is taken, when notified by the board to its agent, shall transmit to the board all the papers constituting the record upon which the action appealed from was taken. The board shall have the power to hear and decide appeals where it is alleged there is error in any order, requirement, decision or determination made by an administrative office in the enforcement of this chapter. In exercising the foregoing powers, the board, in conformity with the provisions of this chapter, may revise or affirm, wholly or partly, or may modify the order, requirement, decision, or determination, and to that end shall have all the powers of the officer from whom the appeal is taken, may attach appropriate conditions, and may direct that issuance of a permit.

(Code 1997, § 16-204)

(a)

When deemed necessary by the board of zoning appeals, the board may grant variances and exceptions from the zoning regulations on the basis and in the manner provided in subsection (b) of this section.

(b)

To authorize in specific cases a variance from the specific terms of the regulations which will not be contrary to the public interest and where, due to special conditions, a literal enforcement of the provisions of the regulations, in an individual case, results in unnecessary hardship, and provided that the spirit of the regulations shall be observed, public safety and welfare secured, and substantial justice done, such variance shall not permit any use not permitted by the zoning regulations in such district. Request for a variance may be granted in such case, upon a finding by the board that all the following conditions have been met:

(1)

The variance requested arises from such condition which is unique to the property in questions and which is not ordinarily found in the same zone or district; and is not created by any action of the property owner or the applicant;

(2)

The granting of the permit for the variance will not adversely affect the rights of the adjacent property owners or residents;

(3)

The strict application of the provisions of the zoning regulations of which the variance is requested will constitute unnecessary hardship upon the property owner requested in the application;

(4)

The variance designed will not adversely affect the public health, safety, morals, order, convenience, prosperity, or general welfare; and

(5)

That granting the variance desired will not be opposed to the general spirit and intent of the zoning regulations; and to grant exceptions to the provisions of the zoning regulation in those instances where the board is specifically authorized to grant such exceptions and only under the terms of the zoning regulation. In no event shall exceptions to the provisions of the zoning regulations be granted where the use or exception contemplated is not specifically listed as an exception in the zoning regulation. Further, under no conditions shall the board of zoning appeals have the power to grant an exception when conditions of this exception, as established in the zoning regulation by the governing body, are not found to be present.

(Code 1997, § 16-205)

Any person, official of governmental agency dissatisfied with any order or determination of the board may bring an action in the district court of the county to determine the reasonableness of any such order or determination. Such appeal shall be filed within 30 days of the final decision of the board.

(Code 1997, § 16-206)

Meetings of the board 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 evidence presented, findings of fact by the board, decisions of the board and the vote upon each question. Records of all official actions of the board shall be filed in its office and shall be a public record.

(Code 1997, § 16-207)

Home occupations may be permitted in residential, R-1, and R-2 zones. An application for a home occupation permit must be obtained from the city administrator or his designee. The following criteria shall be employed to determine a valid home occupation:

(1)

Any commercial use which:

a.

Is customarily carried on in a dwelling unit or accessory structure, such accessory structure shall not be larger than 600 square feet of gross floor area and not more than 20 feet in height.

b.

Is carried on by a member of the family residing in the dwelling unit and may not regularly employ more than one person outside the family.

c.

Is clearly incidental and secondary to the uses of the dwelling unit for residential purposes shall be carried on wholly within the principal dwelling unit or an accessory structure.

(2)

There shall be no exterior display, no exterior sign larger than four square feet in area, no exterior storage of materials and no other exterior indication of the home occupation or variation from the residential character of the principal building.

(3)

There shall be no exterior parking of more than one automobile or truck that is associated with the home occupation.

(4)

No offensive noise, vibration, smoke, dust, odors, heat or glare shall be produced.

(5)

A home occupation shall not be interpreted to include retail stores, restaurants, and dog or other animal kennels.

(Code 1997, § 16-301)

Every owner or operator of a home occupation must secure a home occupation permit from the city administrator or his designee, which permit shall be issued on a yearly basis, with each permit expiring on December 31 of each year. Every person desiring a home occupation permit shall file an application with the city administrator or his designee on forms to be supplied by the city administrator or his designee, the city administrator or his designee will approve or disapprove of the application, based on the stated criteria and the assurance from the applicant that compliance with the requirements will continue to be satisfied.

(Code 1997, § 16-302)

A home occupation permit may be refused or revoked by the city official issuing the permit. The decision to refuse or revoke an application or permit may be appealed to the city planning commission as provided by law and/or ordinance.

(Code 1997, § 16-303)

Any person violating any of the provisions of this article shall, upon conviction thereof, shall be deemed guilty of a Class C violation.

(Code 1997, § 16-304; Ord. No. 1387, § 4)