A board of adjustment is hereby established. Such board shall be appointed as provided by state law, and shall have all powers granted therein.

(Ord. No. 135-182, 7-16-07)

The board of adjustment shall adopt rules necessary to the conduct of its affairs, and in keeping with the provisions of this ordinance. Meetings shall be held at the call of the chairman, or in his absence, the acting chairman, and at such other times as the board may determine. Such chairman, or in his absence the acting chairman, may administer oaths and compel the attendance of witnesses. All meetings 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 immediately be filed in the office of the board and shall be a public record.

(Ord. No. 135-182, 7-16-07)

The board of adjustment shall have the powers and duties as provided in state law to decide requests for administrative review, special exception uses, and variances that will not be detrimental to the public good or impair the purposes and intent of this ordinance.

(Ord. No. 135-182, 7-16-07)

The board of adjustment may hear and decide appeals upon written application and payment of an application fee of $300.00 where it is alleged there is error in any order, requirement, decision, or determination made by the building official or other duly authorized official (administrative official) in the enforcement of this section or any amendment thereto. The $300.00 application fee shall be returned to the applicant if the appeal results in a reversal of opinion by the board of adjustment, otherwise the fee shall be retained.

(Ord. No. 135-182, 7-16-07; Ord. No. 135-196, § 4, 3-25-13, eff. 3-30-13)

Appeals to the board of adjustment may be taken by any persons aggrieved or by any officer, department, or board of the municipality affected by any decision of the administrative official. Such appeal shall be taken within a reasonable time, as provided by the rules of the board, by filing with the administrative official and with the board of adjustment a notice of appeal specifying the grounds thereof. The administrative official shall forthwith transmit to the board all papers constituting the record upon which the action appealed was taken. The board of adjustment shall fix a reasonable time for 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. The owner must personally attend the hearing or may choose to be represented by his agent or attorney.

(Ord. No. 135-182, 7-16-07)

An appeal stays all proceedings in furtherance of the action appealed from, unless the building official from whom the appeal is taken certifies to the board of adjustment that, a stay would, in his opinion, cause imminent peril to life and property. In such cases, the proceedings shall not be stayed other than by a restraining order issued by the board of adjustment or by an appropriate court on application with notice to the building official from whom the appeal is taken and on due cause shown.

(Ord. No. 135-182, 7-16-07)

The board of adjustment may hear and decide special exception uses as specifically authorized by this ordinance, to determine whether special exception uses should be granted, and to grant special exception uses, to impose such conditions and safeguards as are appropriate under this ordinance, or to deny special exception uses when not in harmony with the purpose and intent of this ordinance. A special exception use shall not be granted by the board of adjustment unless and until:

1.

A written application for a special exception is submitted, in accordance with the requirements set forth in the following section 8, indicating the section of this ordinance under which the special exception is sought and stating the grounds on which it is requested.

2.

A public hearing has been held, notice of which has been provided by first class mail to the owner of the property for which special exception is sought (or his agent) and to the owners of all adjoining property, at least five days prior to the public hearing. The owner must personally attend the hearing or may choose to be represented by his agent or attorney.

3.

The board of adjustment has made a finding that it is empowered under the section of this ordinance described in the application to grant the special exception, and that the granting of the special exception will not adversely affect the public interest.

4.

In granting any special exception, the board of adjustment may prescribe appropriate conditions and safeguards in conformity with this ordinance. Violation of such conditions and safeguards, when made a part of the terms under which the special exception is granted, shall be deemed a violation of this ordinance and punishable as prescribed in this ordinance. The board of adjustment may prescribe a time limit within which the action for which the special exception is required shall be begun or completed, or both. Failure to begin or complete, or both, such action within the time limit shall void the special exception.

(Ord. No. 135-182, 7-16-07)

For requests for special exception uses stipulated within the zoning district regulations, including the PUD, the following review procedure shall be adhered to:

1.

The applicant shall submit a complete special use application to the city clerk, at least 15 days prior to the board of adjustment meeting at which the special exception is to be considered, containing as a minimum, the following information:

a.

A $300.00 fee to defray the cost of processing the application. The required application fee must be paid, and no sum or any part of the fee will be refunded for failure to approve such proposal.

b.

The names and addresses of all adjoining property owners.

c.

Ten copies of a site development plan drawn to a scale not larger than one inch equals 50 feet, each of which shall be folded to a dimension of eight and one-half by 11 inches, which shall show the following:

i.

Existing and proposed topography;

ii.

Property lines;

iii.

Scale;

iv.

Existing and proposed structures and their uses;

v.

Dimensions and height of existing and proposed structures;

vi.

Exterior lighting;

vii.

Landscaping and buffer plan;

viii.

Outside storage areas;

ix.

Parking and loading areas;

x.

Points of ingress and egress; and

xi.

Signs.

xii.

The location of all existing and proposed sidewalks and pedestrian ways on the subject property and adjacent property.

2.

A minimum of five days prior to the board of adjustment meeting at which the special exception is to be considered, the city clerk shall notify all adjacent property owners by certified mail. The notice shall state:

a.

The location of the special exception request;

b.

The nature of the request, indicating the current zoning of the site and the proposed special exception use; and

c.

The time, date, and location of the board of adjustment meeting at which the request will be considered.

(Ord. No. 135-182, 7-16-07)

The board of adjustment may 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 this ordinance would result in unnecessary hardship, and so that the spirit of the ordinance shall be observed and substantial justice done.

1.

A variance from the terms of this ordinance shall not be granted by the board of adjustment unless and until a written application for a variance plus an application fee of $300.00 is submitted demonstrating:

a.

That special conditions and circumstances exist which are peculiar to the land, structure, or building involved, and which are not applicable to other lands, structures, or buildings in the same district;

b.

That literal interpretation of the provisions of this ordinance would deprive the applicant of rights commonly enjoyed by other properties in the same district under the terms of this ordinance;

c.

That the special conditions and circumstances do not result from the actions of the applicant;

d.

That granting the variance requested will not confer on the applicant any special privilege that is denied by this ordinance to other lands, structures, or buildings in the same district.

e.

That relief, if granted, would not cause substantial detriment to the public good or impair the purposes and intent of this ordinance; and

f.

That the variance is not a request to permit a use of land, buildings, or structures which is not permitted by right or by special exception in this district involved.

2.

The required application fee must be paid, and no sum or any part of the fee will be refunded for failure to approve such proposal.

3.

A hearing on the variance application will be held after proper notice is provided. Notice of public hearing shall be given by first class mail to the owner of the property for which the variance is sought or to his agent, and to the owners of all adjoining property, at least five days prior to the public hearing. The owner must personally attend the hearing or may choose to be represented by his agent or attorney.

4.

The board of adjustment may only grant a variance after making a specific finding that the requirements of this section regarding a written application have been met by the applicant for a variance and the application fee paid, that the reasons set forth in the application justify the granting of the variance, that the variance is the minimum variance that will make possible the reasonable use of the land, building or structures, and that the granting of the variance will be in harmony with the general purpose and intent of this ordinance, will not be injurious to the neighborhood, or otherwise detrimental to the public welfare.

5.

In granting any variance, the board of adjustment may prescribe appropriate conditions and safeguards in conformity with this ordinance. Violation of such conditions and safeguards, when made a part of the terms under which the variance is granted, shall be deemed a violation of this ordinance and punishable as prescribed in this ordinance.

6.

Variances should be permitted only under peculiar and exceptional circumstances, keeping in mind hardship alone is not sufficient. Demonstration of unnecessary hardship is required and financial loss of a kind which might be common to all of the property owners in similar situations is not grounds for a variance. Under no circumstances shall the board of adjustment grant a variance to permit a use not generally or by any special exception permitted in the district except as provided for in Article XXIX, section 8, interpretation of uses, and section 9, unclassified uses.

(Ord. No. 135-182, 7-16-07)

In exercising the above-mentioned powers, the board of adjustment may, so long as such action is in conformity with the terms of this ordinance, reverse, or affirm, wholly or partly, or may modify the order, requirement, decision, or determination as ought to be made, and to that end shall have powers of the building official/administrative official from whom the appeal is taken. The concurring vote of four members of the board shall be necessary to reverse any order, requirement, decision, or determination of any such building official/administrative official or to decide in favor of the applicant on any special exception or variance.

(Ord. No. 135-182, 7-16-07)

Any party aggrieved by any final judgment or decision of the board of adjustment, may appeal pursuant to state law.

(Ord. No. 135-182, 7-16-07)

If the application is denied by the board of adjustment, a second appeal, special exception, or variance request of the same kind on the same tract or parcel of land will not be considered until a period of one year has elapsed from the date of such action by the board. However, the board of adjustment may adjust this time period, if in the opinion of a majority of the board, an unusual situation or circumstance exists which would warrant another hearing or that conditions in the area have changed, or that the request has changed. Each time the application is made, the required administration fee must be paid, and no sum or any part of the fee will be refunded for failure to approve such proposal.

(Ord. No. 135-182, 7-16-07)