There is created within and for the city a board of adjustment to fulfill the duties as set forth in this chapter. It shall consist of five (5) members, one member from each ward and one member from the city at large. The nominations for ward vacancies shall be made by the respective ward council members. The at large member shall be filled ex officio by the chair of the planning commission or, in his/her absence, the vice chair of the planning commission, such ex officio member to have full voting rights. For the purpose of implementation of this section in 2015, the chair of the planning commission shall serve as a sixth member of the board (who shall only vote in the case of a tie) until such time as the current at large member vacates office through resignation, removal or expiration of the person's current term of office at which point in time the board's membership shall return to five (5) voting members with the chair of the planning commission taking over as the at large member. All nominations shall be confirmed by the city council. Members of the board of adjustment shall serve without compensation. All members shall be residents of the city and ward representatives shall serve for a term of three (3) years. If the chairman or any member shall be absent from more than one-half (1/2) of any four (4) consecutive meetings of the board of adjustment, he shall thereupon cease to be a member of the board of adjustment. A vacancy shall be declared and the subsequent appointment shall be for the remaining unexpired term of the former member. (Ord. 1152, 2015)

The board of adjustment shall elect a chairman from its membership to serve for a term of two (2) years. The board of adjustment may also adopt rules in accordance with the requirements of this chapter. (Ord. 832 §1, 1997)

The meetings of the board of adjustment shall be held at the call of the chairman and at such other 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, deliberations, and voting of the board of adjustment shall be open to the public. The minutes of its proceedings shall be maintained showing the vote of each member on each question, or if absent or failing to vote, indicating such fact, and such minutes shall be filed with the city clerk and become a public record. The concurring vote of four (4) members, or three (3) members if no protests are registered, shall be necessary to reverse any other requirement, decision or determination of any city official, or to decide in favor of the applicant on any matter upon which it is required to pass under any such ordinance or to effect any variation in such ordinance. (Ord. 832 §1, 1997)

A.   Appeals to the board of adjustment may be filed by any person aggrieved by any decision of an administrative official, the planning commission or the city council. Within thirty (30) days from the date of the decision, the aggrieved party shall pay a fee of seventy five dollars ($75.00), if appealing a residential ruling, or two hundred dollars ($200.00), if appealing a commercial ruling. The administrative official shall immediately transmit to the board of adjustment all papers constituting the record upon which the action being appealed was taken. An appeal delays all proceedings in furtherance of the action appealed from, unless the administrative official certifies to the board of adjustment that a delay would cause imminent peril to life or property. In such cases, the proceedings shall not be delayed except by a restraining order, which may be granted by the board of adjustment or by a court of record on the cause shown.

B.   The board of adjustment shall set a reasonable time for the hearing of the appeal, giving public notice as well as due notice to the parties in interest, and decide the appeal within a reasonable time. Any party may appear in person, or be represented by an agent, or an attorney. (Ord. 968 §1, 2002: Ord. 832 §1, 1997)

A.   The board of adjustment shall have the power to:

   1.   Hear and decide appeals if it is alleged there is an error in any order, requirement, decision or determination made by an administrative official, the planning commission or the city council in the interpretation or enforcement of this title.

   2.   Authorize, in specific cases, a variance from the terms, standards and criteria that pertain to a permitted use or use subject to review category within a zoning district, as authorized by the zoning ordinance, when such cases are shown not to be contrary to the public interest, if, owing to special conditions, a literal enforcement of the requirements of this title will result in unnecessary hardship so that the spirit of this title shall be observed and substantial justice done.

B.   Variances may be allowed by the board of adjustment only after notice and a hearing as provided for in this chapter.

C.   A variance may be granted upon a finding by the board of adjustment that:

   1.   The application of this title to the particular piece of property would create an unnecessary hardship;

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

   3.   Relief, if granted, would not cause substantial detriment to the public good, or impair the purposes and intent of this title or the city's comprehensive plan; and

   4.   The variance, if granted, would be the minimum necessary to alleviate the unnecessary hardship.

D.   The record of the meeting at which either a variance was granted or a ruling was overturned, shall show that each element of a variance or overturned ruling was established at the public hearing on the question, otherwise, said variance or overturned ruling shall be voidable on appeal to the district court. (Ord. 1136, 2014)

A.   In exercising the powers set out in this chapter, the board of adjustment may, in conformance with the provisions of this title, reverse or affirm, wholly or partially, or modify the order, requirement, decision or determination as ought to be made. To that end, the board of adjustment shall have all the powers of the administrative official, the planning commission or the city council from whom the appeal is filed. In considering all appeals from rulings under this title, the board of adjustment shall, in making its findings on any specific case, determine the effect of the proposed change upon:

   1.   The supply of light and air to adjacent property;

   2.   The congestion in the public streets;

   3.   The public safety from fire and other hazards;

   4.   The established property values within the surrounding area;

   5.   Other factors relating to the public health, safety, and general welfare of the city.

B.   Every ruling, made on any appeal to the board of adjustment, shall be accompanied by a written finding of fact based on the testimony received at the hearing. The ruling shall specify the reason for granting or denying the appeal. Every ruling or decision by the board of adjustment shall not be effective and no action can be taken until the appeal time as set forth in this chapter has lapsed. A copy of the ruling shall be mailed or delivered within five (5) working days to:

   1.   Each member of the city council;

   2.   Each member of the planning commission;

   3.   The mayor;

   4.   The administrative official;

   5.   The aggrieved party. (Ord. 968 §1, 2002: Ord. 832 §1, 1997)

A.   A notice of the public hearing before the board of adjustment shall be given by publication in a legal newspaper having general circulation within the city and by mailing a notice to all owners of property within a three hundred foot (300') radius of the exterior boundary of the subject property. A copy of the published notice may be mailed to the property owners in lieu of a written notice, however, the notice by publication and written notice shall take place at least ten (10) calendar days prior to the hearing. Additionally, a copy of the notice shall be delivered to each member of the city council and to the chair of the planning commission. The notice shall contain:

   1.   A legal description of the property and the street address or approximate location in the city;

   2.   The present zoning classification of the property and the nature of the variance or exception requested;

   3.   The date, time and place of the hearing.

B.   The board of adjustment shall be subject to the open meeting laws of this state. (Ord. 1136, 2014)

An appeal from any action, decision, ruling, judgment or order of the board of adjustment may be filed by any person or persons, jointly or severally, or any taxpayer, or any official of the city, to the district court by filing a notice of appeal with the city clerk and the board of adjustment within thirty (30) days from the issuance of the decision. The notice shall specify the grounds of the appeal. Upon filing of the notice of appeal the board of adjustment shall immediately transmit to the court clerk, the original or a certified copy of the original papers constituting the record in the case, together with the order, decision or ruling of the board of adjustment. (Ord. 832 §1, 1997)

An appeal to the district court from the board of adjustment delays all proceedings relating to the action appealed from, unless the chairman of the board of adjustment, from which the appeal is filed, certifies to the court clerk, after the notice of appeal has been filed, that by reason of facts stated in the certificate, a delay would, in his opinion, cause imminent peril to life or property. In such case, proceedings shall not be delayed other than by a restraining order, which may be granted by the district court upon application or notice to the city and upon notice to the chairman of the board of adjustment for which the appeal is filed, and upon due cause being shown, the court may reverse or affirm, wholly or partly, or modify the decision brought up for review. (Ord. 832 §1, 1997)