There is hereby created within and for the city a board of adjustment with the powers and duties as provided herein.

(Code 1990, § 12-121; Code 2010, § 12-121; Code 2013, § 48-93)

(a)

The board of adjustment shall be composed of five members appointed by the mayor with confirmation by the city council. Appointments shall be for terms of three years, except that to establish staggered terms the first appointments shall be two members for one-year terms, two members for two-year terms and one member for a three-year term.

(b)

A member of such board of adjustment, once qualified, can thereafter be removed during his term of office only for cause upon written charges and after a hearing held before the appointing authority. In the event of death, resignation or removal of any such member before the expiration of his term, a successor shall be appointed by the mayor to serve his unexpired term. All members of the board of adjustment shall serve as such without compensation.

(c)

The board of adjustment shall elect its own chairperson and shall adopt rules or procedures consistent with the provisions of these regulations. The chairperson or, in his absence, the acting chairperson, may administer oaths and compel the attendance of witnesses. Three members of the board of adjustment shall constitute a quorum. Meetings of the board shall be held at the call of the chairperson and at such other times as the board may determine. All meeting of the board of adjustment shall be open to the public and a public record shall be kept of all proceedings.

(d)

The board of adjustment may, with the approval of the board and council, appoint such employees as may be necessary and may incur necessary expenses within the limits of the appropriations authorized by the council.

(Code 1990, § 12-122; Code 2010, § 12-122; Code 2013, § 48-94)

The board of adjustment shall have the power to:

(1)

Hear and decide appeals where it is alleged that there is error of law in any order, requirement, decision or determination made by the administrative officer in the enforcement of these regulations;

(2)

Hear and decide requests for map interpretations or for decisions on other special questions upon which it is authorized to pass by the regulations adopted by the city council;

(3)

Hear and decide special exceptions to the zoning ordinance, in conformance with this section and division 2 of this article and upon application in specific cases, provided the special exception together with such conditions as may be imposed by the board:

a.

Is determined to be consistent with the purposes and intent of the district within which the property is located;

b.

If granted would not tend to encourage further exceptions of a similar nature in the neighborhood which, when taken together, would be inconsistent with the purposes and intent of the district; and

c.

Is determined to be necessary to render appropriate relief to the applicant for a fair and reasonable use of his property;

(4)

Authorize in specific cases a variance from the terms, standards and criteria that pertain to an allowed use category within a zoning district as authorized by this chapter and subject to the provisions of division 2 of this article when such cases are shown not to be contrary to the public interest if, owing to special conditions, a literal enforcement of the provisions of this chapter will result in unnecessary hardship and so that the spirit of the ordinance shall be observed and substantial justice done; provided, however, the board of adjustment shall have no power to authorize variances as to use except as provided in subsection (5) of this section;

(5)

Hear and decide oil or gas applications or appeals unless prohibited throughout the city by ordinance. The board of adjustment shall be required to make the findings prescribed in section 48-120 in order to grant a variance as to use with respect to any such application or appeal.

(Code 1990, § 12-124(A); Code 2010, § 12-124(A); Code 2013, § 48-95)

In acting upon any appeal such board of adjustment shall, in its consideration of and decision thereon, apply the principles, standards and objectives set forth and contained in all applicable regulations, ordinances and resolutions and the general plan.

(Code 1990, § 12-124(E); Code 2010, § 12-124(E); Code 2013, § 48-119)

A variance or exception from the terms, standards and criteria that pertain to an allowed use category within a zoning district as authorized by this chapter may be granted, in whole, in part, or upon reasonable conditions as provided herein, only upon a finding by the board of adjustment that:

(1)

There are extraordinary and exceptional conditions pertaining to the particular piece of property in question because of its size, shape or topography;

(2)

The application of this chapter to this particular piece of property would create an unnecessary hardship, not self-imposed by the owner or developer;

(3)

Such conditions are peculiar only to the particular piece of property involved;

(4)

Relief, if granted, would not cause substantial detriment to the public good or impair the purposes and intent of this chapter or the comprehensive plan. No variance may be granted for a use of land or building or structure that is prohibited by this chapter.

(Code 1990, § 12-124(B); Code 2010, § 12-124(B); Code 2013, § 48-120)

(a)

A-1 districts.

(1)

Auxiliary single-family structure for owner's relative. Within the A-1 district, the board may permit not to exceed one auxiliary single-family structure on a lot for the purpose of housing a relative of the owner when it can be shown that such residence is necessary for the health, safety or care of the parties involved;

(2)

Home business. Within the A-1 district, the board may permit on a tract of not less than ten acres a home business employing persons other than the immediate family up to a maximum of ten persons, provided that the following provisions shall be met:

a.

The business shall deal with fabricating or manufacture for wholesale distribution off the premises of only those items which can be manufactured or assembled within an entirely enclosed structure;

b.

Because of the semirural nature of the general area of the application, the board shall make a determination that the proposed use is temporary in nature and that the location is appropriate for the use requested;

c.

The board shall determine that the property as it exists with improvements prior to the location of the proposed use is adequate for the use. No new structures shall be allowed to be constructed to make the use more permanent;

d.

The owner shall live on the premises. If it is determined that he fails to live on the premises, then the special permit shall be terminated;

e.

There shall be no outside storage of any material, either new or used, assembled or partially assembled, or of any raw material used in the manufacturing process;

f.

Any other provision deemed appropriate by the board;

g.

The granting of a special permit shall in no way be considered a permanent determination of the future land use pattern for this or adjacent properties.

(b)

A-2 districts. Within the A-2 district, the board may permit the construction of a residential structure without connecting to public water supply provided it is determined that public water supply is not available within a reasonable period and approval would not endanger the health, safety and protection of citizens of the area.

(c)

C-6 districts.

(1)

Within the C-6 district, the board may permit the construction of a canopy, marquee, awning, or any other architectural feature designed as an integral part of the building, to extend into the public right-of-way used for pedestrian purposes. However, the projection shall not extend over any public right-of-way to be used for vehicular traffic or closer to the curb or vehicular trafficway than 18 feet.

(2)

The encroachment shall be designed in such a manner as not to create a hazard or impediment to pedestrian or vehicular traffic. Such projection shall not overhang the sidewalk at a height of less than nine feet.

(3)

In considering the application, the board shall take into consideration the effect of the projection on the appearance, operation and compatibility of the projection on abutting property improvements, existing or proposed.

(Code 1990, § 12-124(C); Code 2010, § 12-124(C); Code 2013, § 48-121)

A petition to the board of adjustment may be filed by any person aggrieved or by a public officer, department, board or bureau affected by any decision of the city officials in administering the zoning regulations, building line and setback regulations. Such petition may be initiated by filing written notice with the board of adjustment and providing notice to the city, stating the grounds for the petition.

(Code 1990, § 12-123; Code 2010, § 12-123; Code 2013, § 48-141)

The petition shall stay the proceedings challenged unless the city official toward whom the petition is directed shall certify to the board of adjustment that, by reason of facts stated in the certificate, a stay would, in his opinion, cause imminent peril to life or property. In such case, the proceedings shall not be stayed otherwise than by a restraining order which may be granted by the board of adjustment or a court of record on application or notice to the city official toward whom the petition is directed, and for good cause shown.

(Code 1990, § 12-123; Code 2010, § 12-123; Code 2013, § 48-142)

The board of adjustment shall fix reasonable times for hearing matters referred to it and give public notice as required by law. Any party may appear and be heard in person or by agent or by attorney at such hearings.

(Code 1990, § 12-125; Code 2010, § 12-125; Code 2013, § 48-143)

Applicants for hearings or other matters to be heard by the board of adjustment shall pay a fee, in such sum as set by the city council by motion or resolution as provided in the city fee schedule, for the hearing, publications and other costs associated with the hearing. The fee shall be paid upon filing the appeal or request for hearing.

(Code 1990, § 12-125; Code 2010, § 12-125; Code 2013, § 48-144)

Exceptions or variances may be allowed by the board only after notice and hearing as provided by state law. The record of the meeting at which the variance or special exception was granted shall show that each element of variance or special exception was established at the public hearing on the question, otherwise the variance or special exception shall be voidable on appeal to the district court.

(Code 1990, § 12-124(D); Code 2010, § 12-124(D); Code 2013, § 48-145)

In exercising its powers, the board of adjustment may, in conformity with the provisions of this article, reverse or affirm, wholly or partly, or modify the order, requirement, decision or determination which initiated the action and may make such order, requirement, decision or determination as ought to be made and as necessary to resolve the issue before the board. The concurring vote of at least three members of the board shall be necessary to decide any matter presented to the board.

(Code 1990, § 12-126; Code 2010, § 12-126; Code 2013, § 48-146)

(a)

Filing of notice of appeal. An appeal to the district court from any decision, ruling, judgment or order of the board of adjustment may be taken by any person or persons, firm or corporation, jointly or severally aggrieved thereby, or any department, board or an official of government, by filing with the clerk of the board of adjustment within ten days a notice of such appeal.

(b)

Bond not required; costs. No bond shall be required for such appeal, but costs may be required in the district court as in other cases.

(c)

Transmittal of record. Upon filing of such notice, the clerk of the board of adjustment shall forthwith transmit to the clerk for the district court the originals or certified copies of all papers constituting the record in such case, altogether with the order, judgment or decisions of the board of adjustment.

(d)

Stay of proceedings. An appeal to the district court stays all proceedings in furtherance of the action appealed from unless the chairperson of the board or the administrative officer from which the appeal is taken certifies to the court clerk, after the notice of appeal is filed, that, by reason of the facts stated in the certificate, a stay would cause imminent peril to life or property. The proceedings shall not be stayed otherwise than by a restraining order issued by the court.

(e)

Review by district court; appeal to supreme court. The causes shall be tried in the district court and the court shall have the same power and authority as the board of adjustment, together with all other powers of the district court in law or in equity. An appeal to the supreme court from the decision of the district court shall be allowed as in other cases.

(Code 1990, § 12-127; Code 2010, § 12-127; Code 2013, § 48-147)