A.

Creation. There is hereby established a Board of Zoning Appeals, which shall perform its duties and exercise its powers as provided in the Zoning Act.

B.

Members. The board shall consist of five members appointed by the City Council. One member may be a member of the Planning Commission and one member may be a member of the City Council. The remaining members shall be chosen from the electorate of the city. Members shall be appointed for three-year terms; provided, the Planning Commission and City Council appointees shall only serve while holding their respective offices. Members may be appointed for successive terms. Vacancies for unexpired terms shall be filled for the remainder of the term.

C.

Alternates.

1.

The City Council may appoint up to two alternate members for the same term as regular members of the board.

2.

An alternate member may be called to serve in the absence of a regular member or for the purpose of reaching a decision in a case where the regular member has abstained for reasons of conflict of interest.

3.

The alternate member having been called shall serve on the board until a final decision is made on the application for which the member was called.

4.

When serving as a member, an alternate member shall have the same voting rights as a regular member of the board.

5.

Members of the board may be removed by the City Council for misfeasance, malfeasance, or nonfeasance in office upon written charges and after public hearing, if requested by the member to be removed. A member shall be disqualified from a vote in which the member has a conflict of interest. Failure of a member to abstain from voting on a matter when the member has a conflict of interest constitutes malfeasance in office.

D.

Officers. The board shall annually elect from its membership a chairperson, vice-chairperson, and such other officers it deems necessary.

A.

Appeals.

1.

The board shall hear and decide all appeals from any order, decision or determination made by the zoning administrator or other person or body authorized to administer the provisions of this ordinance.

2.

An appeal may be taken by a person aggrieved, or by an officer, department, or board of the city. Such appeal shall be taken within 21 days, as prescribed by the rules of the board, by filing with the zoning administrator a notice of appeal specifying the grounds for the appeal.

3.

An appeal shall stay all proceedings in furtherance of the action appealed from unless the zoning administrator certifies to the board, after notice of appeal has been filed, that, by reason of the facts stated in the appeal, a stay would cause imminent peril to life or property. In such case, the proceedings shall not be stayed other than by a restraining order, which may be granted by the board or Circuit Court.

4.

The board shall select a reasonable time and place for hearing the appeal, give due notice thereof to the parties, and render a decision on the appeal without unreasonable delay. A person may appear and testify at the hearing, whether in person or by a duly authorized agent or attorney.

5.

In deciding the appeal, the board shall be limited to determining whether the decision that was made was done so using the proper standards and guidelines in this ordinance. The decision of the board is limited to the information that was available to the administrative official or body who made the decision initially. Additional testimony shall not be taken.

6.

If a determination is made that the administrative official or body making the decision did so improperly, the board may reverse or affirm, wholly or partly, or may modify the order, requirement, decision, or determination appealed from, and shall have all the powers of the administrative official or body from whom the appeal was taken.

7.

The board shall have no jurisdiction or authority over or regarding the following:

a.

Any application for approval of a special land use or planned unit development;

b.

An appeal from any decision, in whole or in part, on a special land use or planned unit development.

B.

Dimensional Variances. The board shall have the power to decide applications for dimensional variances filed as provided in this chapter. A dimensional variance may be allowed only in cases where the board finds, based upon competent, material, and substantial evidence on the whole record, that there is practical difficulty related to the property and that all the conditions specified in Section 17.4 B. are met.

C.

Use Variances. The board shall have no authority to consider variances related to the use of land.

D.

Interpretations.

1.

Text. The board may hear and decide upon requests for the interpretation of the provisions of this ordinance.

a.

Text interpretations shall be narrow and address only the situation to be interpreted, be based on a thorough reading of this ordinance, and not have the effect of amending this ordinance.

b.

Interpretations shall give weight to practical interpretations by the zoning administrator and other administrative officials if applied consistently over a long period of time.

c.

Records shall be kept of all interpretations.

d.

Where the intent of this ordinance is unclear and the facts cannot be read to support only one interpretation, the benefit of doubt shall go to the property owner.

2.

Zoning map. The board may hear and decide appeals from the decisions of the zoning administrator pertaining to interpretations of the zoning map to determine the precise location of boundary lines between zoning districts. In making its determination of the boundary lines, the board shall be governed by the rules of this chapter and the provisions of Section 2.2.

E.

Generally. Nothing contained in this section shall be construed to give or grant to the board the power or authority to alter or change this ordinance or the zoning map.

A.

Majority Vote. The concurring vote of a majority of the board membership shall be required to reverse an order, requirement, decision, or determination of an administrative official or body, or to decide in favor of the applicant a matter upon which the board is required to pass, or to affect a variation in the ordinance.

B.

Conditions of Approval.

1.

The board may impose reasonable conditions in conjunction with approval of an appeal, variance, or any other decision which they are required to make.

2.

Conditions shall be imposed in a manner in accordance with the Zoning Act and related to the standards by which the decision is reached.

C.

Timing. The board shall render its decision within 60 days of the public hearing upon any appeal or application submitted to it.

D.

Effective Date. All decisions of the board shall become final five days after the date of entry of an order, unless the board finds and so certifies on the record, that it is necessary to cause such order to have immediate effect, in order to preserve property or personal rights.

E.

Appeal of Board Decision. The decision of the board shall be final. However, a person having an interest affected by the decision of the board may appeal to the Circuit Court. Upon appeal, the Circuit Court shall review the record in accordance with the requirements of the Zoning Act. The court may affirm, reverse, or modify the decision of the board, or may remand the decision to the board for further hearings or action.

A.

Authority. The board, after public hearing, shall have the power to grant requests for variances from the provisions of this ordinance where it is proved by the applicant that there are practical difficulties or unnecessary hardship in the way of carrying out the strict letter of the ordinance relating to the construction, equipment, or alteration of buildings or structures so that the spirit of the ordinance shall be observed, public safety secured and substantial justice done.

B.

Granting Dimensional Variances. A dimensional variance may only be allowed by the board in cases where there is reasonable evidence of practical difficulty in the official record of the hearing and that all the following conditions are met:

1.

There are exceptional or extraordinary circumstances or conditions applying to the property that do not apply generally to other properties in the same zoning district. Exceptional or extraordinary circumstances or conditions may include:

a.

exceptional narrowness, shallowness, or shape of a specific property that existed on the effective date of the ordinance or relevant amendment;

b.

exceptional topographic or environmental conditions or other extraordinary situation on the land, building, or structure; or

c.

the use or development of the property immediately adjoining the property in question.

2.

That the condition or situation of the specific piece of property for which the variance is sought is not so common or recurrent as to make the formulation of a general regulation for such conditions or situations reasonably practical.

3.

That such variance is necessary for the preservation and enjoyment of a substantial property right similar to that possessed by other properties in the same zoning district and in the vicinity.

4.

The variance will not be significantly detrimental to adjacent property or the surrounding neighborhood.

5.

The variance will not impair the intent and purpose of this ordinance.

6.

That the immediate practical difficulty causing the need for the variance request was not created by any action of the applicant.

7.

The possibility that compliance with this ordinance may prove to be more expensive or otherwise inconvenient shall not be part of the board's consideration.

A.

Construction. Any variance granted by the board shall only be valid for a period of 12 months from the date of approval, unless substantial construction, as determined by the zoning administrator, has occurred and is progressing meaningfully toward completion. The zoning administrator may grant up to an additional 12 month extension, if requested by the property owner in writing prior to the expiration of the original 12 month period, upon showing that the circumstances creating the need for the extension were beyond the control of the applicant. The zoning administrator may only grant an extension when the original circumstances necessitating the variance have not changed.

B.

Resubmission. No variance request which has been denied by the board shall be submitted for reconsideration within a 12 month period from the date of the original application unless the board finds that at least one of the following conditions exist:

1.

that the conditions involving all the reasons for the original denial have been significantly altered, and/or

2.

that new conditions or circumstances exist which change the nature of the original request.