Smithville City Zoning Code
BOARD OF
ZONING APPEALS
§ 153.110 ORGANIZATION AND PROCEDURES.
(A) There is hereby established a Board of Zoning Appeals, which shall consist of five electors appointed by Council. Council by a majority vote of Its members shall choose a successor to fill any vacancy. The five electors first appointed shall serve for terms of one, two, three, four, and five years respectively; thereafter appointments shall be for five-year terms, beginning January 1. Each member shall serve until his successor is appointed and qualified. Members of the Board shall be removable for nonperformance of duty, misconduct in office or other cause, by the Council, upon written charges having been filed with the Council and after a public hearing has been held regarding such charges, a copy of the charges having been served upon the member so charged at last ten days prior to the hearing, either personally or by certified mail or by leaving the same at his or her usual place of residence. The member shall be given an opportunity to be heard and answer such charges.
(B) The Board shall organize annually to elect a Chairperson, Vice-Chairperson and Secretary. It shall further adopt rules for Its own government not inconsistent with law or with any other ordinance of the municipality to carry into effect the provisions of this chapter.
(1) Meetings of the Board shall be held at the call of the Chairperson and at such other times as the Board may determine. The Chairperson, or in his or her absence, the Vice-Chairperson may administer oaths, and the Board may 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 accounts, all of which shall be immediately filed in the Office of Village Clerk and shall be a public record.
(2) Three members of the Board shall constitute a quorum. The Board shall act by resolution, and the concurring vote of three members of the Board shall be necessary to reverse any order or determination of the Zoning Inspector or to decide in favor of an applicant any matter of which the Board has original jurisdiction under this chapter or to grant any variance from the requirements stipulated In this chapter.
(3) The Board may call upon the various departments of the municipality for assistance in the performance of its duties, and it shall be the duty of such departments to render such assistance to the Board as may reasonably be required.
(Ord. 76-43, passed 12-13-1976)
§ 153.111 APPLICATIONS AND APPEALS.
(A) An application, in cases in which the Board of Appeals has original jurisdiction under the provisions of this section, may be taken by any person aggrieved, including a tenant, or by a governmental officer, department, board or bureau. The application shall be filed at Village Hall. The Zoning Inspector shall transmit same to the Board. A fee of $200 shall be paid at the time notice of appeal is filed, which shall forthwith be paid over to the Village Clerk to the credit of the General Fund.
(B) (1) An appeal to the Board may be taken by any person aggrieved or by an officer of the municipality affected by any decision of the Zoning Inspector. The appeal shall be taken within 20 days after the decision by filing with the Zoning Inspector and with the Board a notice of appeal, specifying the grounds thereof. The Zoning Inspector shall forthwith transmit to the Board all the papers constituting the record upon which the action appealed from was taken.
(2) An appeal shall stay all proceedings In furtherance of the action appealed from unless the Zoning Inspector shall certify to the Board of Zoning Appeals after the notice of appeal shall have been filed with it that by reason of facts stated in the certificate, a stay would, in his or her opinion, cause imminent peril to life of property, in which case proceedings shall not be stayed otherwise than by a restraining order, which may be granted by the Board or by a court of equity after notice to the officer from whom the appeal is taken and on due cause shown.
(3) 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 shall make such order, requirement, decision, or determination as in its opinion ought to be made in the premises, and to that end shall have all powers of the Zoning Inspector from whom the appeal is taken.
(Ord. 76-43, passed 12-13-1976; Am. Ord. 2004-02, passed 1-12-2004; Am. Res. 2011-03, passed 2-28-2011; Am. Res. 2012-03, passed 2-13–2012; Am. Ord. 2017-4, passed 3-27-2017)
§ 153.112 HEARINGS.
(A) The Board shall fix a reasonable time for the hearing of an appeal, give public notice thereof and at least ten days notice to parties in interest and decide upon the appeal within a reasonable time after it is submitted. Each application or notice shall be accompanied by the fee hereinafter specified. At this hearing any party may appear in person or by attorney.
(B) The hearings of the Board shall be public. However, the Board may go into executive session for discussion but not vote on any case before it.
(C) Upon the day for hearing any application or appeal the Board may adjourn the hearing in order to permit the obtaining for additional information or to cause such further notice as it deems proper to be served upon such other property owners as it decides may be substantially interested in the application or appeal.
(Ord. 76-43, passed 12-13-1976)
§ 153.113 DECISIONS OF THE BOARD.
(A) The Board shall decide all applications and appeals within 30 days after the final hearing thereon.
(B) A certified copy of the Board’s decision shall be transmitted to all parties in interest. The decision shall be binding upon the Zoning Inspector and observed by him or her, and he or she shall incorporate the terms and conditions of the same in the permit to the applicant or appellant, whenever a permit is authorized by the Board.
(C) A decision of the Board shall not become final until the expiration of five days from the date the decision is made unless the Board shall find the immediate taking effect of the decision is necessary for the preservation of property or principal rights and shall so certify on the record.
(Ord. 76-43, passed 12-13-1976)
§ 153.114 APPEALS FROM BOARD OF ZONING TO COUNCIL.
(A) Any person, firm or corporation, or any officer, department, board or agency of the municipality, or any interested elector of the municipality who has been aggrieved or affected by any decision of the Board of Zoning Appeals may appeal from such decision to the Council of the municipality by filing notice of intent to appeal within five days and filing a petition with the Village Clerk within 15 days from the date of the decision and setting forth the facts of the case.
(B) Council shall hold a public hearing on such appeal not later than 30 days after such appeal has been filed with the Village Clerk. Council, by an affirmative vote of a majority of its members, shall decide the matter.
(Ord. 76-43, passed 12-13-1976)
§ 153.115 POWERS OF BOARD.
(A) Conditional uses, exceptions and interpretations.
(1) The Board shall have the power to hear and decide, in accordance with the provisions of this chapter, applications, filed as hereinbefore provided, for conditional uses, special exceptions or for interpretation of the Zoning Map, or for decisions upon other special questions on which the Board is authorized by this chapter to pass. In considering an application for a conditional use, a special exception or interpretation of the Zoning Map, the Board shall give due regard to the nature and condition of all adjacent uses and structures; and in authorizing a conditional use or special exception, the Board may impose such requirements and conditions with respect to location, construction, maintenance and operation - in addition to those expressly stipulated in this chapter for the particular conditional use or special exception - as the Board may deem necessary for the protection of adjacent properties and the public Interest.
(2) In addition to permitting the conditional uses and special exceptions hereinbefore specified, the Board shall have the power to permit the following conditional uses and special exceptions:
(a) Non-conforming uses.
1. The substitution for a non- conforming use existing at the time of enactment of this chapter, another non-conforming use, if no structural alterations except those required by law or ordinance rare made; provided, however, that in an “R” District no change shall be . authorized by the Board to any use which is not a permitted or conditional use In any “R” District, and in a “C” District no change shall be authorized to any use which is not a permitted or conditional use in any “C” District.
2. The extension of a non- conforming building upon the lot occupied by the building or on an adjoining lot provided that the lot was under the same ownership of the lot in question at the time the use of the building became non-conforming and that the extension is necessary and incidental to the exiting non- conforming use; and provided that the area of the extension shall not exceed, in all, 20% of the existing ground floor area o6 the existing building devoted to a non-conforming use. Non-conforming mobile home park can be expanded by increasing the number of trailers by not more than 20% over the number at the date of the passage of this section.
(b) Extension of use on border of district. The extension of a use or building into a more restricted immediately adjacent thereto but not more than 25 feet beyond the dividing line of the two districts, under such conditions as will safeguard development in the more restricted district.
(c) Temporary structures and uses. The temporary use of a structure or premises in any district for a purpose or use that does not conform to the regulations prescribed elsewhere in this chapter for the district in which it is located, provided that such use be of a temporary nature and does not involve the erection of a substantial structure. A zoning certificate for such use shall be granted in the form of a temporary and revocable permit, for not more than a 12-month period, subject to such conditions as will safeguard the public health, safety, convenience and general welfare.
(B) Administrative review and variances.
(1) Administrative review. The Board shall have the power to hear and decide appeals, filed as hereinbefore provided, where it is alleged by the appellant that there is error in any order, requirement, decision, grant or refusal made by the Zoning Inspector or other official in the interpretation or of the provisions of this chapter.
(2) Variances. The Board shall have the power to authorize, upon appeal in specific cases, filed as hereinbefore provided, such variances from the provisions or requirements of this chapter as will not be contrary to the public interest but only in such cases where, owing to special conditions pertaining to a specific piece of property, the literal enforcement of the provisions or requirements of this chapter would cause undue and unnecessary hardship.
(3) Exceptions. Where, by reason of the exceptional narrowness, shallowness or unusual shape of a specific piece of property on the effective date of this chapter, or by reason of exceptional topographic conditions or other extraordinary situation or condition of such piece of property or of the use or development of property immediately adjoining the piece of property in question, the literal enforcement of the requirements of this chapter would involve practical difficulties or would cause undue hardship - unnecessary to carry out the spirit and purpose of this chapter - the Board shall have power to authorize a variance from such strict application so as to relieve such hardship and so that the spirit and purpose of this chapter shall be observed and substantial justice done. In authorizing a variance the Board may attach thereto such conditions regarding the location, character and other features of the proposed structure or use as it may deem necessary in the interest of the furtherance of the purpose of this chapter and in the public interest. In authorizing a variance with attached conditions the Board shall require such evidence and guarantee or bond as it may deem to be necessary that the conditions attached are being and will be complied with.
(4) General. In exercising its power the Board may, in conformity with the provisions of state statutes and 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 powers of the office from whom the appeal is taken.
(C) Performance requirements procedure. The Board shall have the power to authorize, upon application In specific cases filed as hereinafter provided, issuance of a zoning certificate for uses that are subject to performance requirements procedure under §§ 153.050 et seq., as provided in the following:
(1) Application. An application for a zoning certificate for a use subject to performance requirements shall be submitted in duplicate on a form prescribed by the Board. The applicant shall also submit in duplicate a plan of the proposed construction or development, including a description of the proposed machinery, processes and products, and specifications for the mechanisms and techniques to be used in restricting the emission of dangerous and objectionable elements as set forth in §§ 153.050 et seq.
(2) Review by Board. Within 30 days after the Board has received the aforesaid application or the aforesaid report, if a report was required, or within such further period as agreed to by the applicant, the Board shall decide whether the proposed use will conform to the applicable performance standards, and on such basis shall authorize or refuse to authorize issuance of a zoning certificate or require a modification of the proposed plan of construction or specifications, proposed equipment or operation.
(3) Continued enforcement. The Zoning Inspector shall investigate any purported violation of performance standards, and if there is reasonable ground the same, shall notify the Board of the occurrence or existence of a probable violation thereof. The Board shall investigate the alleged violation, and for such investigation shall employ qualified experts. If, after public hearing on due notice, the Board finds that a violation occurred or exists, a copy of the findings shall be forwarded to the Council.
(Ord. 76-43, passed 12-13-1976; Am. Ord. 1978-19, passed 6-12-1978)