New Haven City Zoning Code
ARTICLE XV
Board of Adjustment
Section 405.955 Appeals To The Board of Adjustment.
[Ord. No. 918 §2, 5-1-2008]
A.
Appeals from action taken by the Administrative Officer shall be taken in the following manner:
1.
Creation and membership. A Board of Adjustment is hereby established as set out in Section 89.080, RSMo. The Board of Adjustment shall consist of five (5) members who shall serve respectively one (1) for one (1) year, one (1) for two (2) years, one (1) for three (3) years, one (1) for four (4) years and one (1) for five (5) years. Thereafter, each member shall serve five (5) year terms. The Board of Adjustment shall choose its own Chairman, Vice Chairman and Secretary to serve one (1) year in the position. The Board of Adjustment members shall be appointed by the Board of Aldermen.
The Mayor of the City, by and with the consent of the Board of Aldermen, may appoint two (2) alternate members of the Board of Adjustment who shall each serve for a term of three (3) 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 (1) 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.
2.
All appeals shall be taken within sixty (60) days of the date of the action which is appealed.
3.
Appeals from the enforcement and interpretation of this Chapter, signed by the appellant, shall be addressed to the Board of Adjustment and presented to the Administrative Officer. An applicable fee shall be paid to the City of New Haven for each appeal to cover the costs of advertising and administrative costs. The appeal shall contain or be accompanied by such legal descriptions, maps, plans and other information so as to completely describe the decisions or interpretation being appealed and the reasons for such appeal.
4.
The Administrative Officer shall transmit to the Board of Adjustment the appeal and all papers constituting the record upon which the action appealed was taken. The Chairman of the Board of Adjustment shall schedule a hearing to be held within sixty (60) days from the filing of the appeal. Public notice of the hearing shall be published in a newspaper of general circulation in the town at least once each week for two (2) successive weeks prior to the hearing. The Administrative Officer shall post notice on the property involved for a period of one (1) week prior to the hearing and shall send notice of the public hearing(s) by regular mail to the property owners within two hundred (200) feet of the property involved in the appeal or variances.
5.
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 court order.
6.
All members of the Board of Adjustment shall serve without compensation.
Section 405.960 Variance Applications.
[Ord. No. 918 §2, 5-1-2008]
A.
Applications for variance to this Chapter shall be processed in the following manner:
1.
An application for a variance from the terms of this Chapter signed by the applicant shall be addressed to the Board of Adjustment and presented to the Administrative Officer.
2.
An applicable fee shall be paid to the City of New Haven for each application to cover the costs of advertising and administrative costs. The application shall contain or be accompanied by such legal descriptions, maps, plans and other information so as to completely describe the proposed use and existing conditions.
3.
The Administrative Officer 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 Administrative Officer shall return the application to the applicant for additional information. Completed applications shall be forwarded to the Board of Adjustment.
Section 405.965 Actions of The Board of Adjustment.
[Ord. No. 918 §2, 5-1-2008]
A.
The Board of Adjustment shall approve or deny appeals and variances in the following manner:
1.
The Board of Adjustment shall approve or deny the application for a variance following the public hearing. Before any variance is granted, the Board of Adjustment must find that all of the following criteria are met:
a.
Special circumstances exist which are peculiar to the applicant's land, structure or building and do not generally apply to the neighboring lands, structures or buildings in the same district or vicinity.
Section 405.970 Appeal or Variance.
[Ord. No. 918 §2, 5-1-2008]
A.
There are (2) 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)
What interpretation is being made by the petitioner?
(2)
In reviewing a variance, 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 of the regulations?
(f)
If the variance is granted, will the public safety and welfare have been assured and will substantial justice have been done?
Section 405.975 Appeal To Circuit Court.
[Ord. No. 918 §2, 5-1-2008]
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 Franklin 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 thirty (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 ten (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.