Olivette City Zoning Code
ARTICLE XVII
Board of Adjustment
Section 400.1610 Board Established.
[Ord. No. 2577 § 1, 3-8-2016[1]]
A.
A Board of Adjustment is hereby established. The Board shall consist of five (5) regular members and three (3) alternate members who shall serve in the absence or disqualification of the regular members. Regular members and alternate members shall be residents appointed by the Council with a term of office of five (5) years, except that the terms of the regular members shall be staggered, so that no more than one (1) regular member's term expires in any calendar year. The terms for alternates need not be staggered.
B.
Vacancies shall be filled by appointment for the unexpired term only. Regular members and alternate members may be removed for cause by the Council upon written charges and after public hearing.
[Ord. No. 2616, 8-8-2017]
C.
The Board shall elect its own Chairman and Vice Chairman who shall serve for one (1) year or until their successors are elected by the Board. The Board shall adopt from time to time such rules and regulations as it may deem necessary to carry into effect the provisions of this Chapter.
Section 400.1620 Meetings.
[Ord. No. 2577 § 1, 3-8-2016]
A.
Meetings of the Board shall be held at the call of the Chairman and at such other times as the Board 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 shall be open to the public. The Board 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 and shall be a public record. All testimony, objections thereto and rulings thereon shall be taken down by a reporter employed by the Board for that purpose.
B.
The concurring vote of four (4) members of the Board shall be necessary to reverse any order, requirement, decision or determination of the Building Official or to decide in favor of the applicant on any matter upon which it is required to pass under this Chapter or to effect any variance.
Section 400.1630 Jurisdiction.
[Ord. No. 2577 § 1, 3-8-2016]
A.
The Board shall have jurisdiction in the following instances:
1.
To hear and decide appeals where it is alleged there is error in any order, requirements, decision or determination made by the Building Official in the enforcement of this Chapter.
2.
To interpret the provisions of this Chapter in such a way as to carry out the intent and purpose of the Zoning Map fixing the several districts, where the street layout actually on the ground varies from the street layout as shown on the Zoning Map.
3.
To permit the erection and use of a building or the use of premises in any location for a public service corporation or for public utility purposes necessary to the public convenience or welfare.
4.
To permit the reconstruction of a non-conforming building which has been destroyed or partially destroyed by fire or other act of God where the Board shall find some compelling public necessity requiring a continuance of the non-conforming use and in no case shall such a permit be issued if its primary function is to continue a monopoly.
5.
To grant relief by from the strict application of the Zoning Ordinance to a specific piece of property by issuing an area or a use variance as allowed herein.
Section 400.1640 Appeals.
[Ord. No. 2577 § 1, 3-8-2016]
A.
Appeals to the Board may be taken by any person aggrieved, any neighborhood organization as defined in Section 32.105, RSMo., representing such person, or by any officer, department, board or bureau of the City of Olivette affected by any decisions of the Building Official. Such appeal shall be taken within a reasonable time by filing with the Building Official and with the Board of Adjustment a notice of appeal, specifying the grounds thereof and by paying a filing fee as specified in City ordinance. The Building Official shall forthwith transmit to the Board all the papers constituting the record upon which the action appealed from is taken.
B.
An appeal stays all proceedings in furtherance of the action appealed from unless the Building Official certifies to the Board after the notice of appeal shall have been 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 or property. In such case, proceedings shall not be stayed otherwise than by a restraining order which may be granted by the Board or by a court of record on application or notice to the Building Official and on due cause shown.
C.
The Board shall fix a reasonable time for the hearing of the appeal, give public notice thereof, as well as due notice to the parties in interest, and decide the same within a reasonable time. Upon the hearing, any party may appear in person or by agent or by attorney.
D.
In exercising the above-mentioned powers, the Board may, in conformity with the provisions of the law, reverse or affirm, wholly or partly, or may modify the order, requirement, decision or determination appealed from and may make such order, requirement, decision or determination as ought to be made and to that end shall have all the powers of the Building Official.
Section 400.1650 Variances.
[Ord. No. 2577 § 1, 3-8-2016]
A.
Area Variance. An area variance may issue to permit the building or enlargement of a structure when specific enforcement of the Zoning Ordinance would prohibit such construction. The Board of Adjustment may issue an area variance only upon findings that:
1.
The property has a unique condition, one not typically found in the same zoning district, relating to the width, depth, or shape of the lot, its topography, or other exceptional circumstance not created by an owner or the applicant; and
2.
Strict application of the Zoning Ordinance would result in practical difficulties, as distinguished from a mere inconvenience, which would deprive an owner of the reasonable use of the property; and
3.
The variance would not unreasonably affect adjacent properties; and
4.
The variance would observe the spirit of the Zoning Ordinance, secure public safety and welfare, and do substantial justice; and
5.
The variance would satisfy the additional criteria of Subsection 400.1650(C), below.
B.
Use Variance. A use variance may issue to permit a use of property not otherwise permitted by the Zoning Ordinance. The Board of Adjustment may issue a use variance only upon finding that:
1.
The property has a unique condition, one not prevalent in the same zoning district, relating to the width, depth, or shape of the lot, its topography, or other exceptional circumstance not created by an owner or the applicant; and
2.
Strict application of the Zoning Ordinance would result in unnecessary hardship which would render the property not suitable for any use permitted in the Zoning Code for the zoning district in which the property is located, thus depriving the owner of all beneficial use of the property; and
3.
The appellant has sufficiently demonstrated unnecessary hardship through actual proof, and not mere conclusory or lay opinion, that the property has no permitted beneficial use; and
4.
The variance would not unreasonably affect adjacent properties, nor alter the essential character of the locality, nor violate the City's land use plan, and would observe the spirit of the Zoning Ordinance, secure public safety and welfare, and do substantial justice; and
5.
The variance would satisfy the additional criteria of Subsection 400.1650(C), below.
C.
Additional Variance Criteria. Before issuing any variance, the Board shall find that the variance will not:
1.
Impair an adequate supply of light and air to adjacent property, or
2.
Unreasonably increase the congestion in public streets, or
3.
Increase the public danger of fire and safety, or
4.
Diminish or impair established property value within the surrounding area, or
5.
In any other respect impair the public health, safety, comfort, morals and welfare of the City of Olivette.
D.
Every variance granted or denied by the Board shall be accompanied by a written finding of fact, based on sworn testimony and evidence, and conclusions of law specifying the reason for granting or denying such variance.
Section 400.1660 Judicial Review.
[Ord. No. 2577 § 1, 3-8-2016]
A.
Any person, 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 persons jointly or severally aggrieved by any decision of the Board of Adjustment may present to the Circuit Court of the County of St. Louis, Missouri, a petition duly verified setting forth that such decision is illegal, in whole or in part, and specifying the grounds of 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.
B.
Upon the presentation of such petition, the court may allow a writ of certiorari directed to the Board to review such decision of the Board 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 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. 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 his/her findings of fact and conclusions of law, which shall constitute a part of the proceedings upon which a 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.
D.
Costs shall not be allowed against the Board 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.