In compliance with provisions of article 414, sections 414.7—414.22, Iowa State Statutes a board of adjustment is hereby established, which board shall consist of five members appointed by the mayor, subject to confirmation by the city council. The five members first appointed shall serve terms of one, two, three, four, and five years, respectively; thereafter terms shall be five years. Any vacancy shall be filled in the same manner for the unexpired portion of the term. In the event of the absence from the city or in the incapacity of a member, the mayor may appoint a substitute who shall serve as a member of the board, with the same powers and authority as the regular member, until such regular member has returned.

The zoning board of adjustment shall have the following rules of procedure:

702.1.

All members of the board shall serve without compensation.

702.2.

The administrative officer shall serve as secretary to the board. In the absence of the secretary, the chairman of the board may appoint one of the members of the board to act as secretary pro tem for the meeting. The board shall have the power to call on any city department of officer for assistance in the performance of its duties, and it shall be the duty of such department or officer to render assistance as may reasonably be required. The board shall also receive and consider recommendations submitted by the planning commission.

702.3.

The board may adopt, from time to time, subject to the approval of the city council, such rules and regulations as it may deem necessary to carry into effect the provisions of this ordinance.

702.4.

The board shall annually elect its own chairman at the first meeting on or after January 1 of each year. Such chairman, or in his absence, the acting chairman may administer oaths and compel the attendance of witnesses. There shall be a fixed place of meeting and all meetings shall be open to the public. The presence of three members shall be necessary to constitute a quorum. The concurring vote of the three members shall be necessary on all matters upon which it is required to pass under the provisions of this ordinance.

702.5.

The secretary of the board shall keep minutes of its proceedings, showing the vote of each member upon each question. If a member is absent or fails to vote, the minutes shall indicate such fact. The board shall keep records of its examination and other official actions, which shall be on file in the office of the city clerk as a public record.

702.6.

The concurring vote of three members of the board shall be necessary to reverse any order, requirement, decision, or determination of the administrative officer or to decide in favor of the applicant on any matter upon which it is required to pass under this ordinance; or to effect any variation of this ordinance. On all appeals, applications, and other matters brought before the board, said board shall inform, in writing, all the parties involved of its decisions, and the reason therefore.

Any person, group or organization, public or private affected by the requirements of this ordinance may appeal to the board of adjustment. Said appeal shall be made on an official application form to the administrative officer specifying the nature of the appeal, and containing a diagram showing the names and addresses of all property owners abutting and adjacent to the affected property. The fee for filing an application for an appeal shall be $75.00 and shall be paid at the time of filing. The administrative officer shall review the application for accuracy and compliance and shall transmit to the Board the original copy of the application and all other papers constituting the record on which the appeal is being based. A copy of the application shall also be transmitted to the planning commission. Upon receipt of the application and all other papers, the board shall fix the time, place and purpose of the public hearing and shall proceed with the publication of a notice in a paper of general circulation in the City of Oelwein and shall notify by certified mail all the property owners indicated on the application.

No public hearing shall be held within 24 hours after filing an appeal with the administrative officer. Prior to a final determination or decision on the appeal, the board shall receive and consider the recommendation of the planning commission. The final disposition of any appeal after public hearing shall be in the form of a resolution by the board either reversing, modifying or affirming the decision or determination appealed from. A copy of such resolution shall be filed with the administrative officer and the planning commission. The decision on the appeal by the Board shall be made within 45 days after the filing of the application to the administrative officer. Any person or persons, jointly or severally, aggrieved by any decision of the board under the provisions of this ordinance, or any taxpayer, or any officer, department, board or bureau of the City of Oelwein, Iowa may seek relief through the courts as provided by the Iowa State Statutes.

(Ord. No. 818, 02-27-1989.)

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

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

705.1.

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

705.2.

Special exceptions. Upon application, pursuant to the provisions of this ordinance and the rules and procedure of the board of adjustment, said board shall grant or refuse special exceptions in accordance with the performance standards, section 105, and the recommendations of the planning commission and shall authorize the issuance of a building permit and may prescribe and impose appropriate conditions and safeguards, including a specified time limit for the building permit. Violation of such conditions and safeguards, when made a part of the terms under which the special use is granted, shall be deemed a violation of this ordinance and shall be punishable under section 603. Further, any yard for the storage of junk or non-operative vehicles, and drive-in establishments permitted as a special exception shall first receive a license from the city council of Oelwein.

705.3.

Variances. 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 the ordinance will in an individual case result in practical difficulty or unnecessary hardship, so that the spirit of the ordinance shall be observed, public safety and welfare secured, and substantial justice done. The existence of a nonconforming use of neighboring land, building, or structures in the same district or of permitted or nonconforming uses in other districts shall not constitute a reason for the requested variance. Such variance may be granted in such individual case of unnecessary hardship upon a finding by the board of adjustment that any of the following conditions exist:

(a)

There are extraordinary and exceptional conditions pertaining to the particular property in question because of its size, shape, or topography that are not applicable to other lands or structures in the same district.

(b)

Literal interpretation of the ordinance would result in unjust financial hardship to a previously established business or industry.

(c)

Granting the variance requested will not confer upon the applicant any special privileges that are denied to other residents of the district in which the property is located.

(d)

A literal interpretation of the provisions of this ordinance would deprive the applicant of rights commonly enjoyed by other residents of the district in which the property is located.

(e)

The requested variance will be in harmony with the purpose and intent of this ordinance and will not be injurious to, or alter the essential character of the neighborhood and the general welfare.

(f)

The special circumstances are not the result of the actions of the applicant.

(g)

The variance requested is the minimum variance that will make possible the legal use of the land, building, or structure.

(h)

The variance is not a request to permits a use of land, building, or structure which is not permitted in the district involved.

(i)

The variance shall be void after six months unless a building permit is secured.

705.4.

Classifications. To classify commercial and industrial uses not specifically tested in this ordinance.