Summerset City Zoning Code
BOARD OF
ADJUSTMENTS
§ 155.370 VARIANCES.
(A) The purpose of the variance is to modify the strict application of the specific requirements set out in each zoning district in conditions where such strict application would result in practical difficulty or unnecessary hardship depriving an owner of the reasonable use of his land.
(B) The variance shall be used only where necessary to overcome some condition which prevents an owner from using his or her lot as this chapter intended.
(Ord. passed 2-3-2011, § 2.40.010)
§ 155.371 BOARD ESTABLISHED.
There is hereby established a Board of Adjustment which may, in appropriate cases and subject to appropriate conditions and safeguards, grant variances, hear appeals, or make special exceptions to the terms of this chapter in harmony with its general purpose and intent and in accordance with the general or specific rules herein contained.
(Ord. passed 2-3-2011, § 2.40.020)
§ 155.372 MEMBERSHIP.
(A) If neither the Planning and Zoning Board or the Board of Commissioners are designated as the Board of Adjustments, then the Board of Adjustments shall consist of five persons to be appointed by the Mayor. The terms of all members shall be for three years each and so arranged that the term of at least one member will expire each year. Members of the Board shall be removable for cause by the mayor upon written charges and after a public hearing.
(B) Vacancies shall be filled for the unexpired term of any member whose term becomes vacant. The Mayor shall also appoint a first alternate and a second alternate for a term of three years each. If a member is unable to attend a meeting, the first alternate or second alternate, in turn, shall serve in that person’s place.
(Ord. passed 2-3-2011, § 2.40.030)
§ 155.373 RULES.
The Board shall organize and adopt rules to govern its proceedings; provided, however, that such rules are not inconsistent with the city’s ordinances, the Comprehensive Plan, or state or federal law.
(Ord. passed 2-3-2011, § 2.40.040)
§ 155.374 MEETINGS.
(A) All meetings of the Board shall be open to the public and held as the Board may determine.
(B) The Chairperson or, in her or his absence, the acting Chairperson may administer oaths, and the Board may compel the attendance of witnesses. All business of the Board shall be transacted at such meetings.
(C) 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 examinations and other official actions, all of which shall be immediately filed in the office of the Board and shall be a public record.
(Ord. passed 2-3-2011, § 2.40.050)
§ 155.375 APPEAL PROCEDURE.
(A) Any person aggrieved by any decision of the Administrator may make an appeal to the Board. The petitioner shall file an application for a variance, in writing, on a form furnished by the city. Every application shall contain the following information:
(1) Legal description of the land on which such variance is requested, together with local street address;
(2) Name and address of each owner of the property;
(3) Name, address, phone number, and signature of the applicant;
(4) Zoning district classification under which the property is regulated at the time of such application;
(5) The specific standard, regulation, or decisions which is being appealed;
(6) The specific remedy that is being requested; and
(7) Any drawings, plans, and other documentation requested by the Board.
(B) Upon the filing of any application for a variance with the Planning Department, the applicant shall pay to the city the appropriate fee as designated in § 155.400.
(C) Notification of surrounding property owners, tenants, and interested parties shall be accomplished by posting a sign on the property and/or by mailing notices of public hearing to neighboring property owners. Legal notice is the general circulation paper.
(1) (a) A sign noting the fact that a variance request is pending shall be posted on the site not less than ten calendar days before the public hearing before the Zoning Board of Adjustments. The sign shall be maintained on the site until the final action has taken action on the request or the petition is withdrawn.
(b) Approved signs shall be secured from the city who shall require a reasonable deposit sufficient to cover the cost of replacement of the sign or signs and who shall determine the number and location of the sign or signs to be posted on the site addressed in the petition for the variance.
(2) The petitioner shall submit postal receipts to demonstrate a good faith attempt to notify by certified letter with return receipt all property owners within 250 feet, inclusive of public right-of-way, of the site measured from the perimeter of the lot or lots which contain the buildings and area dedicated to the proposed use.
(3) The certified mailings shall include the date set for the hearing before the Zoning Board of Adjustments and variance requested, and shall be on a form provided by the Planning Department.
(4) The property owners listed shall be prepared by the city and based on the County Director of Equalization office records of ownership and addresses. Notices are to be sent by the applicant to all parties on the aforementioned list by certified mail with return receipt requested no less than ten calendar days prior to the public hearing on the request held by the Zoning Board of Adjustments.
(D) Upon the filing of an application for a variance, the city shall set a date for public hearing on the request. Said date for the public hearing shall be a day when the Zoning Board of Adjustments is regularly scheduled to meet as determined by the rules, policies, and regulations as adopted or which may hereafter be adopted by the Zoning Board of Adjustments for holding public hearings on such requests. The Zoning Board of Adjustments shall consider and decide the applications for variances within 30 days of the public hearing and in accordance with the following standards.
(1) Variances shall be granted only where special circumstances or conditions (such as exceptional narrowness, topography, or siting), fully described in the finding of the Board, do not apply generally in the district.
(2) Variances shall not be granted to allow a use otherwise excluded from the particular district in which requested.
(3) For reasons fully set forth in the findings of the Board, the aforesaid circumstances or conditions are such that the strict application of the provisions of this chapter would deprive the applicant of any reasonable use of his or her land. Mere loss in value shall not justify a variance; there must be a deprivation of beneficial use of land.
(4) Any variance granted under the provisions of this section shall be the minimum adjustment necessary for the reasonable use of the land.
(5) The granting of any variance is in harmony with the general purposes and intent of this chapter and will not be injurious to the neighborhood, detrimental to the public welfare, or in conflict with the Comprehensive Plan for development.
(E) Before the Board shall have the authority to grant a variance, the person claiming the variance has the burden of showing that:
(1) The granting of the variance will not be contrary to the public interest;
(2) The literal enforcement of this chapter will result in unnecessary hardship;
(3) By granting the variance contrary to the provisions of this chapter, the spirit of this chapter will be observed; and
(4) By granting the permit, substantial justice will be done.
(F) Every decision by the Board shall be accompanied by a written finding of fact based on testimony and other evidence, specifying the reason for granting or denying the variation. The concurring vote of three-fourths of the Members of the Board of Adjustment shall be necessary to reverse any order, requirement, decision, or determination of any such administrative official or to grant any variance.
(Ord. passed 2-3-2011, § 2.40.060)
§ 155.376 SIGNS.
The sign posting requirement as required by § 155.370, pertaining to variance applications, shall be satisfied provided the sign noting the fact that a variance request is pending is no smaller than 18 inches by 18 inches in size.
(Ord. passed 2-3-2011, § 2.40.61; Ord. 2.01C, passed 6-4-2015)
§ 155.377 LIMITATIONS.
Any order of the Board of Adjustment granting a variance shall be invalid unless substantially completed within two years from the date of such order, and such order shall expire without notice. For good cause, the Board may extend this.
(Ord. passed 2-3-2011, § 2.40.070)
§ 155.378 COURT REVIEW.
Any person or persons, jointly or severally, aggrieved by any decision of the Board of Adjustment, or any taxpayer, or any officer, department, board, or bureau of the city, may petition a court of record within 30 days after the filing of the Board’s decision, as provided by SDCL § 11-4-25.
(Ord. passed 2-3-2011, § 2.40.080)