1.   Board Established. A Board of Adjustment is established which shall consist of five members. The terms of office of the members of the Board of Adjustment shall be for terms of five years of each. The terms of office of the members of the Board of Adjustment shall be for five years on a staggered basis, and their appointment shall be made by the Mayor, with the approval of the Council. Any member of the Board who shall thereafter be absent from three meetings of the Board during any one calendar year, without good cause, shall be deemed to have vacated such office on the occasion of such third absence. The Chairperson shall immediately report such vacancy to the Mayor, who shall, with the approval of the Council, fill such vacancy for the unexpired term. The Board shall not carry on its business without having at least three members present. A majority of the members of the Board of Adjustment should not be involved in the business of purchasing or selling real estate.

   2.   Meetings. The meetings of the Board of Adjustment shall be held at the call of the Chairperson and at such other times as the Board may determine. Such Chairperson, or in the absence of the Chairperson, the acting Chair, 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 on each question, or, if a member is absent or fails 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. The presence of three members shall be necessary to constitute a quorum.

   3.   Appeal Procedure.

      A.   Appeals to the Board of Adjustment may be taken by any person aggrieved or by any officer, department, board, or bureau of the City affected by any decision of the Zoning Enforcement Officer. Such appeal shall be taken within 10 days by filing with the City Clerk a Notice of Appeal specifying the grounds thereof. The City Clerk shall forthwith transmit to the Board all papers constituting the record upon which the action appealed from is taken. An appeal stays all proceedings in furtherance of the action appealed from unless the Zoning Enforcement Officer certifies to the Board, after Notice of Appeal has been filed with the City Clerk, that by reason of the facts stated in the certificate, a stay would, in the opinion of the Zoning Enforcement Officer, 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 City Clerk and the Zoning Enforcement Officer and on due cause shown.

      B.   The Board shall fix a reasonable time for the hearing on the appeal, shall give public notice thereof as well as due notice to the parties in interest, and shall decide the same within a reasonable time. At the hearing, any party may appear in person or by agent or by attorney. Before an appeal is filed with the Board of Adjustment, the appellant shall pay a fee in an amount established from time to time by resolution of the City Council.

   4.   Powers and Duties. The Board of Adjustment shall have the following powers and duties:

      A.   To hear and decide appeals where it is alleged there is an error in any order, requirement, rescission or determination made by the Zoning Enforcement Officer in enforcement of this chapter.

      B.   To grant a variation in the regulations when a property owner can show that his property was acquired in good faith; that by reason of exceptional narrowness, shallowness, or shape of a specific piece of property or by reason of exceptional topographical conditions or other extraordinary or exceptional situation, the strict application of the terms of this chapter actually prohibits the use of this property in the district, and that the Board is satisfied under the evidence before it that a literal enforcement of the provisions of this chapter would result in unnecessary hardship; provided however, all variations granted under this clause shall be in harmony with the intended spirit and purpose of this chapter. In granting any variance, the Board may prescribe appropriate conditions and safeguards in conformity with this chapter. Violations of such conditions and safeguards, when made a part of the terms under which the variance is granted, shall be deemed a violation and punishable under provisions of this Code. Under no circumstances shall the Board grant a variance to allow a use not permissible under the terms of this chapter in the district involved, or any use expressly or by implication prohibited by its terms in said district.

      C.   To permit the following exceptions to the district regulations set forth in this chapter, provided that all exceptions shall by their design, construction and operation adequately safeguard the health, safety and welfare of the occupants of adjoining and surrounding property, shall not impair an adequate supply of light and air to adjacent property, shall not increase congestion in the public streets, shall not increase public danger of fire or endanger the public safety, and shall not diminish or impair established property values in surrounding areas:

         (1)   To permit erections and use of a building or the use of premises, or vary the height, yard or area regulations in any location for a public service corporation for public utility purposes, or for purposes of public communication, including the distribution of newspapers, which the Board determines is reasonably necessary for the public convenience or welfare;

         (2)   To permit the use of property in residential districts for off-street parking purposes as accessory to permitted residential district uses where said parking lots do not immediately adjoin the permitted residential district use;

         (3)   To permit the extension of a district where the boundary line of a district divides a lot in single ownership as shown on record or by existing contract or purchase at the time of the passage of the ordinance codified in this chapter, but in no case shall such extension of the district boundary line exceed 40 feet in any direction.

      D.   In no instance may the Board of Adjustment grant a variance to any provisions of the adopted Building Codes.

   5.   Decisions.

      A.   In exercising the powers and duties set forth in Subsection 4, the Board of Adjustment may, in conformity with the provisions of law, reverse or affirm, wholly or partly, or modify the order, requirement, decision or determination appealed from, and may make such order, requirement, decision or determination as it believes proper. To that end it shall have all the powers of the Zoning Enforcement Officer. The concurring vote of three of the members of the Board shall be necessary to reverse any order, requirement, decision or determination of the Zoning Enforcement Officer or to decide in favor of the applicant on any matter upon which it is required to pass under this chapter, provided, however, that the action of the Board shall not become effective until after the resolution of the Board, setting forth the full reason for its decision and the vote of each member participating therein, has been filed. Such resolution immediately following the Board’s final decision shall be filed in the office of the Board and shall be open to public inspection.

      B.   Every variation and exception granted or denied by the Board shall be supported by a written testimony or evidence submitted in connection therewith.

      C.   Any taxpayer, or any officer, department, board or bureau of the City, or any person or persons jointly or severally aggrieved by any decision of the Board, may present to a court of record 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 30 days after the filing of the decision in the office of the Board.

      D.   The Board of Adjustment shall be permitted to approve, approve with conditions or deny a request for a variance. Each request for a variance shall be consistent with the following criteria:

         (1)   Limitations on the use of the property due to physical, topographical and geologic features.

         (2)   The grant of the variance will not grant any special privilege to the property owner.

         (3)   The applicant can demonstrate that without a variance there can be no reasonable use of the property.

         (4)   The grant of the variance is not based solely on economic reasons.

         (5)      The necessity for the variance was not created by the property owner, including a certification that the variance is not being requested due to the property owner having installed an improvement in violation of Polk City Code.

         (6)   The variance requested is the minimum variance necessary to allow reasonable use of the property.

         (7)   The grant of the variance will not be injurious to the public health, safety or welfare.

         (8)   The property subject to the variance request possesses one or more unique characteristics generally not applicable to similarly situated properties.