Shady Shores City Zoning Code
ARTICLE 3
7 BOARD OF ADJUSTMENT
§ 3.7.001 Board of Adjustment.
(a)
Establishment.
There is hereby created a Board of Adjustment, which shall be organized, appointed, and function as follows.
(b)
Organization.
(1)
The Board of Adjustment shall consist of 5 members who are residents of the city, each to be appointed by resolution of the City Council for a term of 2 years and removable for cause by the appointing authority upon written charges and after public hearing. Vacancies shall be filled for the unexpired term of any member whose place becomes vacant for any cause, in the same manner as the original appointment was made. The City Council may provide for the appointment of 2 alternate members of the Board who shall serve in the absence of 1 or more of the regular members when requested to do so by the Mayor or City Secretary, as the case may be. All cases to be heard by the Board of Adjustment will always be heard by a minimum number of 4 members. The alternate members, when appointed, shall serve for a term of 2 years, and any vacancy shall be filled in the same manner, and they shall be subject to removal the same as the regular members.
(2)
The person acting as Ordinance Administrator for the city shall be an ex-officio member of the Board of Adjustment without power of vote, and as an ex-officio member of the Board shall set up and maintain a separate file for each application for appeal and variance received and shall record therein the names and addresses of all persons, firms, and corporations to whom notices are mailed, including the date of mailings and the person by whom the notices were delivered to the mailing clerk, post office, or mailbox, and further keep a record of all notices published as required herein. All records and files herein provided for shall be permanent and official files and records of the city.
(3)
The Board shall forthwith notify in writing the City Council, the Commission, and the City Building Inspector of each decision, interpretation, and variance granted under the provisions of this chapter.
(c)
Operational Procedure.
(1)
The Board of Adjustment shall adopt rules to govern its proceedings; provided, however, that the rules are not inconsistent with this chapter or state law. Meetings of the Board shall be held at the call of the chairperson and at other times as the Board may determine. The chairperson, or in his or her absence, the acting chairperson, may administer oath[s] and compel the attendance of witnesses.
(2)
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 that fact, and shall keep record 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.
(3)
Appeals to the Board may be made in writing by any person aggrieved or by any municipal officer, department, or board affected by any decision of the Administrator. The appeal shall be filed with the Board by the Administrator within 15 days after the original decision rendered by the Administrator. The appeal shall be accompanied by all papers constituting the record pertaining to that appeal. Formal notice of the appeal shall be issued by the Administrator, this notice to specify the grounds upon which the appeal is made.
(4)
Appeal shall stay all proceedings in furtherance of the action appealed from unless the officer from whom the appeal is taken certifies to the Board, after the notice of appeal shall have been filed with him or her, that by reason of facts stated in the certificate, a stay would, in his or her opinion, cause imminent peril to life or property. In these cases, proceedings shall not be stayed otherwise than by a restraining order which may be granted by the Board or a court of record on application, on notice to the officer from whom the appeal is taken, and on due cause shown.
(5)
Upon notice of appeal being given to the Administrator and before the appeal shall be construed as having been perfected, the applicant must file with the notice of appeal to the Board an amount of money estimated by Administrator to be sufficient to mail and publish all notices required herein, that amount in no case to be less than $25.
(6)
No appeal to the Board for the same or related variance on the same piece of property shall be allowed prior to the expiration of 6 months from the previous ruling by the Board on any appeal to that body unless other property in the immediate vicinity has, within that 6-month period, been changed or acted on by the Board or City Council so as to alter the facts and conditions on which the previous Board action was based. Such a change of circumstances shall permit the rehearing of an appeal by the Board prior to the expiration of the 6-month period, but those conditions shall in no wise have any force in law to compel the Board, after a hearing, to grant a subsequent appeal. The subsequent appeal shall be considered entirely on its merits and the peculiar and specific conditions related to the property on which the appeal is brought.
(7)
At a public hearing relative to any appeal, any interested party may appear in person or by agent or by attorney. The burden of proof shall be on the applicant to establish the necessary facts to warrant favorable action of the Board on any appeal. Any variance granted or authorized by the Board under the provisions of this chapter shall authorize the issuance of a building permit or a certificate of occupancy, as the case may be, for a period of 180 days from the date of the favorable action of the Board, unless the Board shall have in its action approved a longer period of time and has so shown that specific longer period of time in the minutes of its action. If the building permit or certificate of occupancy shall not have been applied for within the 180-day period or extended period as the Board may have specifically granted, then the variance shall be deemed to have been waived and all rights thereunder terminated. This termination and waiver shall be without prejudice to a subsequent appeal, and the subsequent appeal shall be subject to the same regulations and requirements for hearing as herein specified for the original appeal.
(d)
Actions of the Board.
(1)
In exercising its powers, the Board of Adjustment may, on conformity with the provisions of the statutes of this state as existing or hereafter amended, reverse or affirm, wholly or partly, or may modify the order, requirement, decision, or determination appealed from and make such an order, requirement, decision, or determination as ought to be made, and shall have all the powers of the officer from whom the appeal is taken. The Board shall have the power to impose reasonable conditions to be complied with by the applicant.
(2)
The concurring vote of 4 members of the Board shall be necessary to reverse any order, requirement, decision, or determination of any such administrative 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 in this chapter.
(3)
Any person or persons, jointly or severally aggrieved by any decision of the Board, or any taxpayer or any officer, department, or board of the municipality, may present to a court of record (district court) a petition, duly verified, setting forth that the decision is illegal, in whole or in part, specifying the grounds of illegality. The petition shall be presented to the court within 10 days after the filing of the decision in the office of the Board and not thereafter.
(e)
Notice of Hearing Before the Board Required.
The Board of Adjustment shall hold a public hearing on all appeals made to it, and written notice of the public hearing shall be sent to the applicant and all other persons who are owners of real property lying within 200 feet of the property on which the appeal is made. This notice shall be given not less than 10 days nor more than 30 days before the date set for the hearing to all above-mentioned owners who have rendered their property for city taxes as the ownership appears on the last city tax roll. The notice may be served by depositing the same, properly addressed and postage paid, in the U.S. post office. Notice shall be given by publishing the same in official publication of the city at least 10 days and not more than 30 days prior to the date set for the hearing, which shall state the time and place of the hearing.
(f)
Authority of the Board.
(1)
A variance is an authorization by the Board of Adjustment granting relief and doing substantial justice in the use of the applicant’s property by a property owner where, owing to special conditions, a literal enforcement of the provisions of this chapter will result in unnecessary hardship.
(2)
When, in its judgment, the public convenience and welfare will be substantially served and the appropriate use of the neighboring property will not be substantially or permanently injured, the Board may, in specific cases, after public notice and public hearing, and subject to appropriate conditions and safeguards, authorize the following variances to the regulations herein established and take action relative to the continuance or discontinuance of a nonconforming use.
(3)
(A)
A variance may be granted an applicant when the Board finds:
(i)
There are special circumstances or conditions applying to the land or building for which the variance is sought, which circumstances or conditions are peculiar to that land or building and do not apply generally to lands or buildings in the same district or neighborhood, and that those circumstances or conditions are such that the strict application of the provisions of this chapter would deprive the applicant of the reasonable use of the land or building;
(ii)
The granting of the variance will not be detrimental to the public welfare or injurious to the property or improvements in the zone or neighborhood in which the property is located;
(iii)
The granting of the variance is necessary for the reasonable use of the land or building, and the variance as granted by the Board is the minimum variance that will accomplish this purpose; and
(iv)
The literal enforcement and strict application of the provisions of this chapter will result in an unnecessary hardship inconsistent with the general provisions and intent of this chapter, and in granting the variance the spirit of the chapter will be preserved and substantial justice done.
(B)
The Board may, after public notice and hearing and subject to the conditions and safeguards herein contained, vary or adapt the strict application of any of the terms of this chapter under the power and authority herein granted.
(C)
In granting any variance under the provisions of this chapter, the Board may designate conditions in connection therewith which, in its opinion, will secure substantially the purpose and intent of this chapter.
(4)
The Board may:
(A)
Hear and decide appeals where it is alleged there is error on any order, requirement, decision, or determination made by the Zoning Administrator in the enforcement of this chapter;
(B)
Interpret the intent of the Zoning Map where uncertainty exists because the physical features on the ground vary from those on the Zoning Map and none of the rules set forth herein apply;
(C)
Initiate on its motion, or cause to be presented by interested property owners, action to bring about the discontinuance of a nonconforming structure or use under any plan whereby full value of the structure can be amortized within a definite period of time, taking into consideration the general character of the neighborhood and the necessity for all property to conform to the regulations of this chapter;
(D)
Permit the change of occupancy from one nonconforming use to another nonconforming use when the extent of the second nonconforming use is found to be less detrimental to the environment than the first;
(E)
Permit the enlargement of a nonconforming use only when the enlargement will not prolong the life of the nonconforming use. A specific period of time for the return to conformity can be required;
(F)
Permit the reconstruction of a nonconforming structure or building on the lot or tract occupied by that building; provided the reconstruction does not, in the judgment of the Board, prevent the return of the property to a conforming use or increase the nonconformity of a nonconforming structure;
(G)
Require the vacation and demolition of a nonconforming structure which is deemed to be obsolete, dilapidated, or substandard; and
(H)
Permit variance of the front yard, side yard, rear yard, lot width, lot depth, coverage, minimum setback standards, off-street parking, or off-street loading regulations where the literal enforcement of the provisions of this chapter would result in an unnecessary hardship, and where the variance is necessary to permit a specific parcel of land which differs from other parcels of land in the same district by being of such a restricted area, shape, or slope that it cannot be developed in a manner commensurate with the development permitted upon other parcels of land in the same district. A modification of the standard established by this chapter shall not be granted to relieve a self-created or personal hardship, nor for financial reason only, nor shall a modification be granted to permit any person a privilege in developing a parcel of land not permitted by this chapter to other parcels of land in the district.
(g)
Appeals from the Board.
Any person or persons, or any board, taxpayer, department, board, or bureau of the city aggrieved by any decision of the Board of Adjustment, may seek review by a court of record of that decision, in the manner provided by the laws of this state.
(Ordinance 256-5-2013 adopted 5/16/13)