(a)

Proceedings. The board shall adopt rules and regulations to govern its proceedings. 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 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)

Powers and duties. The board of adjustment shall have the following powers:

(1)

To hear and decide appeals where it is alleged there is error in any order, requirements, decision, or determination made by an administrative official in the enforcement of this chapter. In this capacity, the board exercises appellate jurisdiction as a quasi-judicial body and its task is to determine what the ordinance means and how the ordinance applies to a particular fact situation.

(2)

To hear and decide all requests for variances from the strict and literal enforcement of the provisions of this chapter. A variance is the remedy created by this power and is part of the board's appellate jurisdiction.

(3)

To hear and decide on all requests for exceptions as provided by this chapter.

(4)

To hear and decide all matters referred to it or upon which it is required to pass under this chapter.

(5)

Further, the board shall have the power when passing upon appeals, variances, or exceptions where the specified standards for granting such have been met, to vary or modify the application of any of the regulations or provisions of this chapter relating to the use, construction, or alteration of buildings or structures, or the use of land so that the spirit of the chapter shall be observed, public safety and welfare secured, and substantial justice done.

(c)

Hearings before the board of adjustment. In carrying out the powers and duties of the board, the board shall hold a hearing on all items before it. The board shall fix a time for the hearing within 30 days following receipt of an appeal, variance, or exception request, and give public notice of such hearing, by publication, one time in an official newspaper or a newspaper of general circulation in the city at least 15 days prior to the date of said hearing. Additionally, the board shall make a special effort, by first class mail, to inform the owners of all property within 185 feet of the property for which the appeal, variance, or exception has been filed of the hearing.

At the hearing, parties in interest and citizens shall have an opportunity to be heard.

Any party may appear at the hearing in person or, by agent, or by attorney.

Following the hearing, the board shall decide on the appeal, variance, or exception within 30 days.

(d)

Burden on applicant. The applicant for an appeal, variance, or exception shall bear the burden of producing evidence establishing the grounds of the appeal, variance, or exception.

(e)

Votes by the board. The concurring vote of four members of the board shall be necessary to reverse any order, requirement, decision, or determination of an administrative official in the enforcement of this chapter; to decide any matter referred to it upon which it is required to pass; to effect any variation as provided for by this division; or to grant any requested exception as provided for by this division.

(f)

Fees for filing appeal, variance, or exception. At the time of the filing of an appeal, variance, or exception to the board of adjustment, the appellant/applicant shall pay to the city a filing fee in an amount as set out in Section 31-075, which said fee shall be collected by the department of planning and community development, and no appeal, variance or exception shall be heard or considered until said fee is paid.

All fees as collected shall be paid into the city treasury and credited to the general fund.

(G.O. 3100, § 1(Exh. A), 5-28-24)

(a)

When appeals may be taken. Appeals to the board may be taken by any person aggrieved, or by any officer, department, board, or bureau of the municipality affected by any decision of an administrative official or in the enforcement of this chapter. Such appeal shall be taken within 30 days from the date of the decision, by filing with the official from whom the appeal is taken and with the board of adjustment a notice of appeal specifying the grounds thereof. The official 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.

(b)

Extent of the board's appeal powers. In exercising its powers, the board may, in conformity with the provisions of this chapter, 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 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 the administrative official.

(c)

Stay of proceedings. An appeal stays all proceedings in furtherance of the actions appealed from, unless the official from whom the appeal is taken certifies to the board after the notice of appeal shall have been filed with him that by reason of facts stated in the certificate a stay would, in their opinion, cause immediate peril to life or property. In such a 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 official from whom the appeal is taken and on due cause shown.

(d)

Decisions on appeals. The board shall render decisions only on appeals from an action by an administrative official enforcing the provisions of this chapter. The board shall take action only when it has determined that a permit has been incorrectly issued or denied, or when it has determined that an ordinance has been incorrectly interpreted, or when the appellant proves that the standards for a variance contained in subsection 31-092(b) as applied to a specific lot or tract of land or building have been met. In case the standards for granting variances have been met, the board may issue a variance signed by the chairman, setting out any conditions to be met. A copy of the variance shall be sent to the appropriate official who shall issue a permit setting out the terms of the variance. In no case shall the board decide an appeal from an action of the city council or commission, nor shall it render decisions or rulings which have the effect of repealing or amending this chapter. In all cases, the spirit and intent of this chapter shall be observed, public safety and welfare secured, and substantial justice done.

(G.O. 3100, § 1(Exh. A), 5-28-24)

(a)

Extent of the board's variance powers. In exercising its powers, the board may grant a variance in the following instances:

(1)

Permitting the erection of a building or portion of a building to a height in excess of the limits prescribed for the district or districts in which the building or portion of the building is located.

(2)

Permitting such modifications of a yard, lot area, or lot width requirements as may be necessary to secure appropriate improvements of a parcel of land where such parcel was separately owned on the date of the passage of the ordinance and is not adjacent to another parcel of the same ownership and where such parcel is of such size that it cannot be improved without such modification.

(3)

Permitting the extension of a district where the boundary line of a district divides a lot in a single ownership at the time of the passage of this ordinance.

(4)

From the applicable bulk regulations for buildings and structures, including maximum height, lot coverage, required yard areas, and other required open space.

(5)

From the applicable minimum requirements for lot size, width and depth, and setbacks from lot lines.

(6)

From the applicable off-street parking and off-street loading requirements and ratios.

(7)

Permitting the reconstruction of a non-conforming building which has been destroyed or damaged by fire, other casualty, act of God, or the public enemy, to the extent that the cost of restoration of the building to its condition prior to the destruction or damage does not exceed 75 percent of completely reconstructing the building.

In all cases, the board may, in conformity with the provisions of this chapter, approve or deny the variance request in whole or in part as deemed necessary to conform with the standards for variances set forth below.

(b)

Standards for variances. The board of adjustment shall not vary the regulations of this article as authorized above unless and until the board shall make written findings based upon the particular evidence presented to it in each specific case that:

(1)

The particular physical surroundings, shape or topographical condition of the specific property involved would result in an unnecessary hardship upon the owner as distinguished from a mere inconvenience if the strict letter of the regulations were carried out;

(2)

The conditions upon which the petition for a variance is based would not be applicable, generally, to other property within the same zoning classification;

(3)

The alleged hardship has not been created by any person presently having an interest in the property;

(4)

The granting of the variance will not be detrimental to the public health, safety, or welfare, or to other property, improvements, or the character in the neighborhood which the property is located; and

(5)

The granting of the variance is in keeping with the purpose of the zoning district for which the property is located and in keeping with the city's comprehensive plan.

(c)

Use variance not authorized. The board of adjustment shall not be empowered to vary any of the provisions of this chapter relating to the permitted or conditional use of land, buildings, or structures in specific zoning districts.

(d)

Application requirements. Any person seeking a variance shall submit an application to the director of planning and community development or designee. The application shall be made on a form prescribed by such director or designee and accompanied by a non-refundable filing fee prescribed in Section 31-075. The application shall be accompanied by the following information:

(1)

The particular provisions or requirements of this chapter which prevent the proposed construction on, or use of, the property.

(2)

The existing zoning district classification.

(3)

The special conditions, circumstances, or characteristics of the land, building or structure that prevent compliance with this chapter.

(4)

The particular hardship which would result if the specified provisions or requirements were to be applied to the subject property.

(5)

The extent to which it would be necessary to vary the requirements of this chapter to permit the proposed construction on, or use of, the property.

(6)

An explanation of how the requested variance conforms to each of the standards set out in subsection 31-092(b).

(7)

A site plan describing the property boundaries, the existing and proposed structures, and setbacks.

(8)

Any other information as directed by the board or director of planning and community development or designee deemed to be necessary for the board to make a decision.

(e)

Extent of variance limited. The board, in exercising its authority to grant variances from this chapter, shall be empowered to vary the provisions of this chapter only to the extent necessary to relieve or alleviate the demonstrated hardship.

(f)

Conditions and restrictions. The board may impose such conditions and restrictions upon the premises benefited by a variance as may be necessary to comply with the standards set out in this chapter to reduce, minimize, or mitigate the effect of such variance upon other property in the neighborhood and to better carry out the general intent of this chapter. Failure to comply with any such conditions and restrictions shall constitute a violation of this chapter.

(g)

Notice of decision. After the hearing and making a decision, the board shall file its written decision on the requested variance, supported by findings of fact and a list of sections varied with respect to the standards in subsection 31-092(a), with the director of planning and community development or designee. Director or designee shall mail, by first-class mail, a copy of the decision to the applicant and each other person who requests in writing to be notified.

(h)

Duration of variance. No order of the board of adjustment granting a variance shall be valid for a period of longer than one year from the date of such order unless the action that precipitated the request for the variance (subdivision of land, construction, change in use, etc.) is commenced within such period and pursued to completion without unnecessary delay on the part of the person holding the title or beneficial interest in the property for which the variance was granted.

(G.O. 3100, § 1(Exh. A), 5-28-24)

(a)

In exercising its powers, the board may grant an exception permit in the following instances; provided the appropriate findings are made as specified in each applicable section:

(1)

Permitted accessory uses as provided for in Section 31-050.

(2)

Signs as provided for in Section 31-110 et seq.

(3)

Fences as provided for in Section 31-054.

(4)

Parking and loading as provided for in Section 31-053.

(5)

Telecommunications towers and facilities as provided for in Section 31-300 et seq.

(6)

Landscaping and buffering requirements as provided for in Section 31-412.

(b)

Application for exception. An application for an exception may be filed by the owner of the subject property with the director of planning and community development or designee. The application shall be made on a form prescribed by such director or designee and accompanied by a non-refundable filing fee prescribed in Section 31-075. Any application filed by a person who is not the owner of the property for which the exception is sought shall be accompanied by evidence of the consent of, and authority to act for, the owner. The application shall contain the following information and such additional information as the board of adjustment may, by rule, require:

(1)

The particular provisions or requirements of this chapter under which the special exception is being requested.

(2)

The existing district classification of the property.

(3)

An explanation of how the requested exception conforms to each of the required determinations set forth in each applicable section.

(4)

A site plan describing the property boundaries, the location of buildings, and the area for which the exception is being requested.

(c)

Conditions and restrictions. The board of adjustment may impose such conditions and restrictions upon the premises benefited by an exception as may be necessary to comply with the standards set out in this chapter, to reduce, minimize, or mitigate the effect of such exception upon other property in the neighborhood, and better to carry out the general intent of the ordinance. Failure to comply with any such conditions and restrictions shall constitute a violation of this chapter.

(d)

Determination required. The board in considering exception requests, shall determine the following prior to granting approval:

(1)

That the exception will not be detrimental to or cause undue hardship to the surrounding neighborhood and property owners, or to the public safety;

(2)

That the exception is in keeping with the purpose of the zone district, sign code, or fence ordinance;

(3)

That the exception to be granted is one that will require the least modification to the prescribed regulations and the minimum variance that will accomplish the purpose;

(4)

That the literal enforcement of the provisions of the ordinance will result in restrictions inconsistent with the purpose of the applicable section;

(5)

For exceptions to the parking and loading requirements, the board shall find that, due to unique circumstances, a particular activity would not reasonably be expected to generate parking demand sufficient to justify the parking requirement; and

(6)

The required determination for telecommunications tower and facility exceptions are contained in Section 31-315(b) of this chapter, if applicable.

(e)

Decision on exception. After the hearing and making a decision on a request for an exception, the board of adjustment shall file its written decision on the requested exception, supported by findings of fact and conclusions with respect to the required determinations in each applicable section with the director of planning and community development or designee. The director or designee shall mail, by first-class mail, a copy of the decision to the applicant and to each other person who requests in writing to be notified.

(f)

Duration of exception. No order of the board granting an exception shall be valid for a period of longer than one year from the date of such order unless construction, change in use, etc. is commenced within such period and pursued to completion without unnecessary delay on the part of the person holding the title or beneficial interest in the property for which the special exception was granted.

(G.O. 3100, § 1(Exh. A), 5-28-24)

(a)

Appeal from decision of the board. Persons aggrieved by any decision of the board may present to the Circuit Court of Buchanan County, Missouri, a petition, duly verified, setting forth that such decision is illegal, in whole or in part, and specifying the grounds of the illegality. Such petition must be presented to the court within 30 days after the filing of the decision in the office of the board.

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 realtor's attorney, which shall be not less than ten 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.

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 portions 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 evidence or appoint a referee to take such evidence as it may direct and report the same to the court with his 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.

(b)

Costs. 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. All issues in any proceedings under this section shall have preference over all other civil actions and proceedings.

(G.O. 3100, § 1(Exh. A), 5-28-24)