Ofallon City Zoning Code
ARTICLE XVII
Board Of Adjustment
Section 400.690 Establishment.
[Ord. No. 7042, 8-24-2023]
A.
A Board of Adjustment is hereby established in accordance with Chapter 89, RSMo., regarding the Zoning of Cities.
B.
The Board of Adjustment as established herein is hereby designated and appointed to serve as and perform all the duties and responsibilities of the Board of Appeals as established in Title V, "Building and Construction" as adopted by the City of O'Fallon.
Section 400.695 Membership.
[Ord. No. 7042, 8-24-2023]
The Board of Adjustment shall consist of five (5) regular members who shall be residents of the City. The membership of the first Board of Adjustment appointed 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 members shall be appointed for terms of five (5) years each. Three (3) alternate members may be appointed to serve in the absence of or the disqualification of the regular members. The alternate members shall only vote when a regular member is unable to vote on any matter before the Board, or when one (1) or more regular members are absent from a meeting. All regular members and alternate members shall be appointed by the Mayor with the approval of the City Council. All regular members and alternate 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 regular member or alternate member whose term becomes vacant. The regular members and alternate members of the Board of Adjustment shall elect its own Chairman who shall serve for one (1) year, except that said Chairman may not be elected from among the alternate members.
Section 400.700 Meeting And Voting.
[Ord. No. 7042, 8-24-2023]
The Board of Adjustment shall adopt rules in accordance with the provisions of this Code. Meetings of the Board of Adjustment shall be held at the call of the Chairman and at such other times as the Board of Adjustment may determine. Such Chairman, or, in his/her absence, the acting Chairman, may administer oaths and compel the attendance of witnesses. All meetings of the Board of Adjustment shall be open to the public. 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 examinations and other official actions, all of which shall be immediately filed in the office of the Board of Adjustment, and shall be public record. A record shall be made of all testimony, objections thereto, and rulings thereon.
Section 400.705 Powers And Duties.
[Ord. No. 7042, 8-24-2023]
A.
The Board of Adjustment shall have the following powers and duties.
1.
Variances. To authorize in specific cases a variance from the specific terms of these Regulations which will not be contrary to the public interest and where, owing to special conditions, a literal enforcement of the provisions of these Regulations will, in an individual case, result in unnecessary hardship, provided the spirit of these 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.
a.
The applicant must show that this property was acquired in good faith and where by reason of exceptional narrowness, shallowness or shape of this specific piece of property at the time of the effective date (October 16, 1984) of the district zoning regulations, or where by reason of exceptional circumstances that the strict application of the terms of the zoning regulations actually prohibit the practical use of his/her property in the manner similar to that of other property in the zoning district where it is located.
b.
A request for a variance may be granted, upon a finding of the Board of Adjustment that all of the following conditions have been met. The Board of Adjustment shall make a determination on each condition, and the finding shall be entered in the record.
(1)
The variance requested arises from such condition which is unique to the property in question and which is not ordinarily found in the same zone or district; and is not created by an action or actions of the property owner or 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 represented in the application.
(4)
The variance desired will not adversely affect the public health, safety, morals, order, convenience, prosperity or general welfare.
(5)
The granting of the variance desired will not be opposed to the general spirit and intent of the zoning regulations.
c.
In granting a variance, the Board of Adjustment may impose such conditions, safeguards and restrictions upon the premises benefitted by the variance as may be necessary to reduce or minimize any potentially injurious effect of such variance upon other property in the neighborhood, and to carry out the general purpose and intent of these Regulations.
2.
Other Matters. To hear and decide appeals where it is alleged there is error in any order, requirement, decision or determination made by an administrative official in the enforcement of the provisions of Chapter 400 of this Code and to hear and decide all matters specifically referred to it or upon which it is required to pass under this Code.
3.
Conditions Of Determination. In exercising the foregoing powers such Board of Adjustment may, in conformity with the provisions of this Chapter, reverse or affirm, wholly or partly, or may modify the order, requirements, decision or determination as ought to be made, and to that end shall have all the powers of the Officer from whom the appeal is taken. In considering all appeals under this Chapter, the Board of Adjustment shall before making any findings in a specific case, first determine that the proposed change will not constitute a change in the District Map and will not impair an adequate supply of light and air to adjacent property, or increase the congestion in public streets, or increase the public danger of fire and safety or materially diminish or impair established property values within the surrounding area, or in any other respect impair the public health, safety, comfort, morals and welfare of the City of O'Fallon, Missouri. Every change granted or denied by the Board of Adjustment shall be accompanied by a written finding of fact specifying the reason for granting or denying the variation and said written report shall be filed in the office of the Board within ten (10) days after the date of the action of the Board of Adjustment.
4.
A concurring vote of four (4) members of the Board of Adjustment shall be necessary to reverse any order, requirement, decision, or determination of any such administrative official, or to decide in favor of the applicant on any matter upon which it is required to pass under this Chapter, or to affect any variation in this Code.
Section 400.710 Application To Board Of Adjustment.
[Ord. No. 7042, 8-24-2023]
A.
Appeals Of Administrative Decisions.
1.
Appeals to the Board of Adjustment may be taken by any aggrieved person as defined in Section 400.035 of this Code, by any neighborhood organization as defined in Section 32.105, RSMo., representing such person, or by any officer, department, board or bureau of the City affected by any decision of the Administrative Officer.
2.
An appeal shall be taken within ten (10) days of the date that the decision appealed from was made by filing with the officer from whom the appeal is taken and with the Board of Adjustment a notice of appeal specifying the grounds thereof. Such appeal shall be in writing on forms provided by the Board of Adjustment; no appeal shall be accepted unless it is accompanied by the appropriate filing fee.
3.
The officer from whom the appeal is taken shall forthwith transmit to the Board all the papers constituting the record upon which the action appealed from was taken. 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 of Adjustment 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 immediate 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.
B.
Variances. A written application for variance, on forms provided by the Board of Adjustment and the appropriate filing fee are required for requesting a variance from the Board of Adjustment. In addition, each applicant shall submit the following information or documentation at the same time as the application is submitted:
1.
The applicant shall submit a statement, in writing, justifying the variance required; indicating specifically the enforcement provisions of the zoning regulations from which the variance is requested and outlining in detail the manner in which it is believed that this application will meet each of the five (5) conditions as set out in Section 400.705.
2.
The applicant shall submit a sketch, in duplicate, drawn to scale and showing the lot or lots included in the application; the structures existing thereon; and the structures contemplated necessitating the variance requested. All appropriate dimensions and any other information which would be helpful to the Board of Adjustment in consideration of the application shall be included.
3.
Any other information or documentation requested by the Board of Adjustment.
C.
Public Meeting Notification. The Planning and Development Department will be responsible for researching and notifying by mail all property owners of the public meeting(s) whose boundary limits are abutting (excluding right-of-way) to the property where the variance(s) is being requested. Notices shall be postmarked at least seven (7) days prior to the Board of Adjustment meeting. In addition, the Planning and Development Department shall erect a sign, at least six (6) square feet in size, on the property advertising a public notice at least seven (7) days prior to the Board of Adjustment meeting.
Section 400.715 Performance.
[Ord. No. 7042, 8-24-2023]
A.
In making any decision varying or modifying any provisions of the zoning regulations or in granting an exception to the district regulations, the Board of Adjustment shall impose such restrictions, terms, time limitations, landscaping, screening, and other appropriate safeguards as needed to protect adjoining property.
B.
The Board of Adjustment may require a performance bond to guarantee the installation of improvements such as parking lot surfacing, landscaping, etc. The amount of the bond shall be based on a general estimate of cost for the improvements as determined by the Board of Adjustment, and shall be enforceable by or payable to the City Council in this sum equal to the cost of constructing the required improvements.
C.
In lieu of the performance bond requirement, the Board of Adjustment may specify a time limit for the completion of such required improvements and in the event the improvements are not completed within the specified time, the Board of Adjustment may declare the granting of the application null and void after reconsideration.
Section 400.717 Time Limit On Approval.
[Ord. No. 7042, 8-24-2023]
A.
A variance shall automatically lapse and become void unless the applicant applies for any necessary building permits and completes construction or installation within one (1) year after the decision of the Board. Any variance granted by the Board which does not require an application for a building permit is automatically rescinded after one (1) year from the date of the Board's decision if no use of the variance is made within the one (1) year period.
B.
Upon written request of the property owner and for good cause shown and upon a finding by the Board of Adjustment that relevant circumstances on-site and in the area have not changed in any relevant way since the variance was granted, the Board may grant one (1) or more extensions of time, not to exceed a cumulative total of two (2) years, under such conditions as it determines. An application for an extension will be considered only if it is submitted, in writing, prior to the expiration of the initial period of validity as described in the preceding Subsection.
Section 400.720 Appeal Of Board Of Adjustment Decision.
[Ord. No. 7042, 8-24-2023]
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 person or persons or any officer, department, board or bureau of the municipality, or any officer, department or board of the municipality, may present to the Circuit Court of the County 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 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 relator's 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 of Adjustment 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 portion 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 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 additional evidence or appoint a referee to take such evidence as it may direct and report the same to the Court with the findings of fact and conclusions of law, which 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 of Adjustment unless it shall appear to the Court that it acted with gross negligence, or in bad faith, or with malice in making the decision appealed from.
Section 400.722 Effect Of Denial Of An Application By The Board Of Adjustment.
[Ord. No. 7042, 8-24-2023]
No application which has been denied (either wholly or in part) shall be resubmitted for a period of twelve (12) months from the date of said order of denial, except on grounds of new evidence or proof of change of factors found valid by the Director of Planning and Development.