This article sets out the process to obtain relief from the requirements or interpretation of this zoning ordinance that may create practical difficulty or particular hardship in its enforcement or application to a specific property or situation.

(Ord. No. 0-00-106, § 2, 12-4-2000)

(a)

Initiation.

(1)

An appeal of an administrative interpretation may be initiated by any person aggrieved by such interpretation. Such appeal shall be taken within 30 days of the administrative interpretation by filing such appeal in writing with the director of the planning and zoning.

(2)

It is the intention of this zoning ordinance that all questions arising in connection with the interpretation of this zoning ordinance shall be presented first to the director of the planning and zoning department, from whom an appeal can then be taken to the city council.

(b)

Interpretations by city council. The city council, upon appeal of an aggrieved party or at the request of the planning and zoning director, is authorized to:

(1)

Interpret the use of words or phrases within the context of the intent of this zoning ordinance.

(2)

Determine the boundaries of the various zoning districts where uncertainty exists.

(3)

Decide appeals from any order, determination, decision or other interpretation by any person acting under authority of this zoning ordinance, where a misinterpretation or misapplication of the requirements or other provisions of this zoning ordinance is alleged.

(4)

Interpret such other provisions of this zoning ordinance as may require clarification or extension in specific or general cases.

(Ord. No. 0-00-106, § 2, 12-4-2000; Ord. No. 0-01-37, § 2(exh. B), 6-18-2001)

(a)

Initiation.

(1)

An appeal from the strict application of the provisions of the zoning ordinance to a property may be initiated by any party aggrieved by such application.

(2)

In no case, however, shall a variance be granted for any of the following:

a.

A change in the conditions of approval imposed through a zoning change granted by the city council.

b.

A use of land or buildings or structures that is not permitted by the zoning district that is applicable to the property.

c.

Any increase in the number of dwelling units or nonresidential building floor area otherwise permitted by the zoning district that is applicable to the property.

d.

To reduce any side yard building setback to less than seven and one-half feet.

(b)

Standards for approval of a variance.

(1)

General.

a.

Relief from the application of the provisions of this zoning ordinance may be granted only upon a finding that compliance with such provision will result in a hardship to the property or owner that is substantially unwarranted by the protection of the public health, safety or general welfare or that there is an extraordinary condition on the property.

b.

Such relief may be granted only to the extent necessary to alleviate such unnecessary hardship or extraordinary condition and not as a convenience to the applicant nor to gain any advantage or interest over other but similar properties.

(2)

Findings. A variance may be granted only upon a finding that:

a.

The variance, if granted, would not cause substantial detriment to the public good.

b.

The variance, if granted, would not be injurious to the use and enjoyment of the environment or of other property in the immediate vicinity.

c.

The variance, if granted, would not diminish and impair property values within the surrounding neighborhood.

d.

The variance, if granted, would not impair the purpose and intent of the zoning ordinance.

(c)

Administrative variances.

(1)

The planning and zoning director, following consultation with the affected departments, is authorized to grant a variance from certain requirements of this zoning ordinance, subject to the limitations and standards of this section. The authority to grant such variances shall be limited to variances from the following requirements to the extent indicated:

a.

Front yard setback. The variance is not to exceed 15 percent of the required setback.

b.

Side yard setback. The variance is not to exceed five feet.

c.

Rear yard setback. The variance is not to exceed five feet.

d.

Minimum building square foot requirements. The variance is not to exceed ten percent of the required floor area.

e.

Sign regulations. Dimensional requirements of the sign regulations article not to exceed ten percent.

f.

All other dimensional requirements of this ordinance. The variance is not to exceed 15 percent of the required dimension.

(2)

An appeal from an adverse decision of the planning and zoning director may be taken to the board of adjustments and appeals at the request of the applicant. Such request shall be filed in writing with the planning and zoning director within 30 days of the decision of the planning and zoning director.

(d)

Variances by the board of adjustments and appeals.

(1)

The board of adjustments and appeals is authorized to grant a variance from the requirements of this zoning ordinance, subject to the limitations and standards of this section. The authority to grant such variances shall be limited to variances from the following requirements to the extent indicated:

a.

Front yard setback. The variance is not to exceed 35 percent of the required setback.

b.

Side yard setback. The variance is not to exceed five feet.

c.

Rear yard setback. The variance is not to exceed five feet.

d.

Minimum building square foot requirements. The variance is not to exceed 35 percent of the required floor area.

e.

Sign regulations. Dimensional requirements of the sign regulations article not to exceed 35 percent.

f.

All other dimensional requirements of this zoning ordinance. The variance is not to exceed 35 percent of the required dimension.

(2)

An appeal from an adverse decision of the board of adjustments and appeals may be taken to the city council at the request of the applicant. Such request must be filed in writing with the director of planning and zoning within 30 days of the decision of the board of adjustments and appeals.

(e)

Variances by the city council. The city council is authorized to grant a variance from any requirement, term or provision of this zoning ordinance, subject to the limitations and standards of this section, and applicable provisions of state law.

(Ord. No. 0-00-106, § 2, 12-4-2000; Ord. No. 0-01-37, § 2(exh. B), 6-18-2001)

(a)

Receipt of appeal.

(1)

Upon receipt of an appeal or request for a variance, the planning and zoning director shall assemble such memos, papers, plans or other documents as may constitute the record for the appeal or as may provide an understanding of the issues involved.

(2)

An application for an appeal or variance shall include such descriptions, maps or drawings as needed to clearly illustrate or explain the action requested. The planning and zoning director may request such additional information from the appellant as necessary to provide a full understanding of the applicant's request.

(3)

Once the record has been assembled, the planning and zoning director shall consider the request for administrative approval. If approved, the applicant shall be notified in writing and no further action by the city shall be required.

(b)

Public hearing; when required. For all requests for variances other than administrative variances, and for appeals from an administrative interpretation or denial of a variance, the planning and zoning director shall schedule the request or appeal for public hearing at the next meeting of the board of adjustments and appeals or the city council (as appropriate to the request or appeal) for which adequate public notice can be given.

(c)

Public hearing notice.

(1)

At least 15 days, but not more than 45 days, prior to the public hearing on the interpretation by the city council or variance by the city council or the board of adjustments and appeals, notice shall be published in a newspaper of general circulation within the city. The notice shall state the time, place and purpose of the hearing.

(2)

A request specifically for an appeal or variance other than an administrative variance shall be heard at a public hearing as follows:

a.

The published notice also shall include the location of the property in issue, the present zoning classification of the property, and the nature of the requested action; and

b.

Where specific property is in issue, at least 15 days prior to the public hearing, the planning and zoning department shall post a sign or signs stating the date, time and place for the public hearing, the present zoning classification and the nature of requested action. One such sign shall be placed in a conspicuous location along each street frontage of the subject property. If the property has no street frontage, the sign shall be placed on each street from which access will be gained to the property.

(d)

Withdrawal of appeal. Any appellant wishing to withdraw an appeal prior to the public hearing shall file a written request for such withdrawal with the planning and zoning director. The appeal shall thereupon be withdrawn and the request shall have no further effect.

(e)

Public hearing procedures.

(1)

The public hearing shall be convened at the scheduled time and place by the appropriate body, as advertised.

(2)

The presiding official may administer oaths.

(3)

The planning and zoning director shall submit the assembled record of the appeal. The planning and zoning director shall provide such information or explanation as appropriate to the circumstances of the appeal.

(4)

It is required that the appellant or an agent for the appellant be present, and should the appellant or his agent fail to appear the appeal may be tabled.

(5)

At the public hearing concerning the appeal or variance the appellant, after being sworn in, shall be allowed to present evidence. Any parties in support of or in opposition to the appeal or variance shall also be allowed to present sworn testimony.

(6)

For each appeal or variance, the appellant and proponents of the request shall have no less than ten minutes for presentation of data, opinions and evidence at the public hearing, and opponents of the appeal or variance shall likewise have a minimum of ten minutes for presentation. The proponents of each appeal or variance shall have a collective maximum of 20 minutes for their presentations, and the opponents of each appeal or variance likewise shall have a collective maximum of 20 minutes for their presentations, unless these time limitations are waived at the discretion of the presiding official.

(7)

Hearsay testimony shall not be considered and shall be ruled out of order.

(8)

After the public hearing and any information presented by the planning and zoning director, action on the appeal or variance shall be considered.

a.

A motion to approve or deny an appeal or variance must be approved by an affirmative vote of a majority of the members in attendance in order for the motion to be approved.

b.

If a motion to approve an appeal or variance fails, the appeal or variance is automatically denied. If a motion to deny an appeal or variance fails, another motion would be in order.

c.

A tie vote on a motion for approval of an appeal or variance shall be deemed a denial of the appeal. A tie vote on any other motion shall be deemed to be no action, and another motion would be in order.

d.

If no action is taken on an appeal or variance request, it shall be considered tabled and action deferred to the next regular meeting.

(9)

In taking action on an appeal or variance request, the board of adjustments and appeals or city council may:

a.

Approve, approve with changes, or deny the request;

b.

Table the appeal for consideration at its next scheduled meeting; or

c.

Allow withdrawal of the appeal or variance at the request of the applicant.

(f)

Waiting period for refiling. If a request specifically for a variance is denied by the city council, another request for a variance affecting the same property shall not be considered by the city council for a period of six months from the date of denial; provided, however, that the city council may reduce the waiting period under extenuating circumstances or on its own motion.

(Ord. No. 0-00-106, § 2, 12-4-2000; Ord. No. 0-01-37, § 2(exh. B), 6-18-2001)