The city planning commission shall function as the board of appeals.

When functioning as the board of appeals, the city planning commission shall have the following powers:

(1)

To hear and decide appeals, where it is alleged there is error in any order, requirement, decision or determination made by an administrative official in the enforcement of this ordinance.

(2)

To hear and decide special exceptions to the terms of the ordinance upon which such board is required to pass under such ordinance.

(3)

To recommend the city council upon appeal in specific cases such variance from the terms of the ordinance, as will not be contrary to the public interest where, owing to special conditions, a literal enforcement of the provisions of the ordinance will in an individual case, result in unnecessary hardship, so that the spirit of the ordinance shall be observed, public safety and welfare secured, and substantial justice done. Such variance may be granted in such individual case of unnecessary hardship on a finding by the board of appeals that:

a.

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

b.

The application of the ordinance to this particular piece of property would create an unnecessary hardship, and

c.

Such conditions are peculiar to the particular piece of property involved, and

d.

Relief, if granted, would not cause substantial detriment to the public good or impair the purposes and intent of the ordinance provided however, the [that] no variance may be granted for a use of land or building or structure that is prohibited by the ordinance.

In exercising the above powers, the board of appeals may, in conformity with the provisions of this ordinance, reverse or affirm, wholly or partly, or may modify the order, requirements, decision or determination, and to that end shall have all the powers of the officer from whom the appeal is taken and may issue or direct the issuance of a permit.

In any instance where the board of appeals is required to consider a variance in the zoning ordinance or map in accordance with the provisions of this ordinance, the board shall, among other things:

(1)

Assure itself that the proposed change is consistent with the spirit, purpose and intent of the zoning ordinance and consider the effect upon the public interest of granting or denying the application.

(2)

Determine that the proposed change will not substantially injure or detract from the use of neighboring property or from the general character of the neighborhood, and that the use of the property adjacent to the area included in the proposed change or plan is adequately safeguarded.

(3)

Determine that the proposed change will serve the best interests of the city, the convenience of the community, where applicable, and the public welfare.

(4)

Consider the unnecessary hardship which will or may be inflicted upon the applicant by denial of his application.

(5)

Consider the presence or absence in the neighborhood of conditions or uses which are the same or similar in character to the condition or use for which the applicant seeks approval.

(6)

Consider the effect of the proposed change upon the logical, efficient and economical extension of public services and facilities such as public water, sewers, police and fire protection and public schools, and assure adequate arrangements for sanitation in specific instances.

(7)

Safeguard the development of highway frontage insofar as possible so as to limit the total number of access points and encourage the frontage of buildings on parallel marginal roads or on roads perpendicular to the highway.

(8)

Consider the suitability of the proposed location of an industrial or commercial use with respect to probable effects upon highway traffic, and assure adequate access arrangements in order to protect major highways from undue congestion and hazard.

(9)

Ascertain the adequacy of sanitation and public safety provisions, where applicable, and require a certificate of adequacy of sewage and water facilities from the department of health of the county in any case required herein or deemed advisable.

(10)

Impose such conditions, in addition to those required, as are necessary to assure that the general purpose and intent of the zoning ordinance is complied with, which conditions may include, but are not limited to, harmonious design of buildings, planting and its maintenance as a sight or sound screen, and the minimizing of noxious, offensive or hazardous elements.

(Ord. of 3-11-91, § 4)

The board of appeals shall make rules as to the manner of filing appeals or applications for special exceptions or for variance from the terms of this ordinance.

(1)

An appeal stays all legal proceedings in furtherance of the action appealed from unless the officer from whom the appeal is taken certifies to the board of appeals after the notice of appeal shall be filed with him, that by reason of facts stated in the certificate a stay would, in his opinion, cause imminent peril to life and property. In such case proceedings shall not be stayed otherwise than by a restraining order which may be granted by the board of appeals or by a court of record on application, on notice to the officer from whom the appeal is taken, and on due cause shown.

(2)

Whenever a person shall take an appeal to the board of appeals, he shall obtain the appropriate form therefor from the building inspector. It shall be the duty of the said person to complete the appeal form in its entirety; which form is then to be submitted to the city together with the appropriate fees.

(3)

In addition, a list of names and addresses of the owner, if he or his residence is known, or the occupier of every lot in the same street within five hundred (500) feet of the lot or building in question and of every lot not on the same street within one hundred and fifty (150) feet of said lot or building, shall be submitted with the appeal form; provided, however that failure to provide such list of names provided by this paragraph shall not invalidate any action taken by the board of appeals.

Meetings of the board shall be held at the call of the chairman and at such times as the board may determine. The chairman, or in his absence the acting chairman, may administer oaths and compel the attendance of witnesses. All meetings shall be open to the public. The board shall keep minutes of its proceedings and record of its examinations and other official actions, all of which shall be immediately filed in the office of the board and shall be public record.

In the exercise of the powers vested in it by this ordinance, the board of appeals may, in its discretion, refer to any other agency of the city, county or state for an advisory opinion on any matter properly before it with respect to which it believes that such advisory opinion would be helpful to it in reaching its own determination.

The board of appeals shall fix a reasonable time for the hearing of the appeal or other matter referred to it, and give public notice thereof, as well as due notice to the parties in interest, and decide the same within a reasonable time. Upon the hearing any party may appeal in person or by agent or by attorney. The board of appeals shall give at least fifteen (15) days notice of any required public hearing in the following manner:

(1)

By publishing a notice thereof in one (1) newspaper of general circulation in the city.

(2)

By mailing a notice to those persons identified as owners or occupiers under section 2703(3) by the person seeking relief from the board of appeals.

Unless otherwise specified by the city council, a variance shall expire if the applicant fails to obtain a building permit thereunder within six (6) months from the date of authorization thereof.

(Ord. of 3-11-91, § 4)

A charge or fee of one hundred fifty dollars ($150.00) shall be paid by each applicant upon the filing of an application with the board of appeals for a variance from the terms of this ordinance. The charge or fee shall be paid in advance to the secretary of the city council and shall be used to defray the necessary expenses of the board of appeals. If the applicant desires a stenographic record of the proceedings before the board of appeals, such stenographic services shall be the sole responsibility of the applicant.

(Ord. of 3-11-91, § 4; Ord. of 11-12-12(3) )

All appeals, requests for variances shall first be referred to the board of appeals for action. If the board of appeals fails to take action within thirty (30) days of the public hearing required under section 2706, the matter shall be referred to the city council for final determination as if the board of appeals had recommended approval.

(Ord. of 3-11-91, § 4)

Any decision, recommendation, or other action of the board of appeals shall be considered advisory in nature, and shall be referred to the city council for final determination within a reasonable time period. Actions of the board of appeals shall not be binding upon the city council, except that a favorable vote of two-thirds (⅔) of all members of the city council authorized to vote thereon shall be required to override any action proposed by the board of appeals. However the city council may by simple majority vote to impose any additional or more stringent safeguards or special conditions before granting any appeal, special exemption, or variance, so long as such safeguards or special conditions are reasonable and designed to protect the public health, safety, or welfare.