1.   Creation, Membership and Procedure. A Board of Adjustment consisting of five (5) members shall be appointed by the City Council, in accordance with provisions of Chapter 414 of the Code of Iowa. At least one such member shall be named from among the members of the West Burlington Planning and Zoning Commission. The appointing authority may remove any member of the Board of Adjustment for cause and after public hearing.

   A.   The Board shall elect its own Chairperson and shall have the power to adopt rules and regulations for its own government, not inconsistent with State law or with the provisions of this or any other City Ordinance. Meetings shall be held at the call of the Chairperson and at such other time as the Board may determine. The Chairperson may administer oaths and compel attendance of witnesses. The Secretary of the Planning and Zoning Commission shall act as the Board’s Secretary.

   B.   Meetings of the Board shall be open to the public. Minutes shall be kept of proceedings, showing the action of the Board and the vote of each member upon each question, or if absent or failing to vote, indicating that fact, and records shall be made of the Board’s examinations and other official actions, all of which shall be filed immediately in the office of the Board as public record.

   C.   Three members of the Board shall constitute a quorum. The Board shall act by resolution, and the concurring vote of three members shall be necessary to reverse any order, requirement, decision or determination of the Building Inspector, or to decide in favor of an applicant any matter upon which it is required to pass under the ordinance, or to effect any variation in the requirements of this Ordinance.

   D.   The Board may call on the City departments for assistance in the performance of its duties, and it shall be the duty of these departments to render such assistance to the Board as may reasonably be required.

2.   Applications and Appeals.

   A.   An application to the Board of Adjustment, in cases in which it has original jurisdiction under the provisions of this Ordinance, may be taken by any property owner, including a tenant, or by governmental officer, department, board or bureau.

   Such application shall be filed with the Building Inspector, who shall transmit all the fees, together with all plans, specifications and other papers pertaining to the application to the Board.

   Should the application be withdrawn prior to the publication of a legal notice, such fee will be returned upon written request of the applicant.

   B.   An appeal to the Board may be taken by any property owner, including a tenant, or by any governmental officer, department, board or bureau affected by any ruling of the Building Inspector. Such appeal shall be taken within 30 days of the Board’s decision, by filing with the Building Inspector a notice of appeal specifying the grounds thereof.

   The Building Inspector shall promptly transmit to the Board such notice of appeal, together with all the plans, fees, and papers constituting the record upon which the action appealed from was taken.

   Should the appeal be withdrawn prior to the publication of a legal notice, the fee will be returned upon written request of the applicant.

   C.   The Board shall fix a reasonable time for the hearing of an application or an appeal. It shall give at least seven (7) days’ notice of the time and place of such hearing by insertion in a newspaper of general circulation in the community. It shall also, at least five (5) days prior to the hearing, mail notices to the applicant or appellant, the Building Inspector, the owner(s) the property in question, as well as all other properties within 300 feet of that property. Any party may appear at such a hearing in person, or by agent or attorney. The Board shall decide the application or appeal within a reasonable time subsequent to the hearing.

   D.   Stay of Proceedings. An appeal shall stay all proceedings in furtherance of the action appealed from, unless the Building Inspector certifies to the Board that by reason of facts stated in the certification, a stay would cause imminent peril to life or property, in the opinion of this official. In such case, proceedings shall not be stayed, unless order may, on due cause shown, be granted by the Board on application, after notice to the Building Inspector, or by a court record.

3.   Powers of the Board of Adjustment. The Board shall have jurisdiction in matters discussed in this Ordinance, and shall have the specific and general powers described here.

   A.   Special Uses. In addition to permitting the special uses previously specified in this ordinance, the Board shall have authority to permit the following:

      (1)   Nonconforming Uses. The substitution for a nonconforming use, provided that no structural alterations are made, other than those required by law or ordinance. Any substituting use shall be of a classification that is equally restrictive, or more restrictive than the nonconforming use.

      (2)   Temporary Uses and Permits. In otherwise undeveloped areas of the City, a temporary use (as defined in Section 165.03) shall be incidental to, and encourage the future development of these areas. The permit granted shall be temporary and revocable for a period of no greater than 12 months, subject to such conditions necessary to safeguard the public health, safety, convenience, and general welfare.

      (3)   Access Management on Arterial Streets.

         a.   Along certain segments of arterial streets, no development or redevelopment of a directly adjacent property shall be permitted unless approved as a Special Use. The specific street segments are included in the figure below, and include portions of Agency Road, Gear Avenue, Mount Pleasant Street, and Division Street. These street segments are located in areas largely zoned for Business or Industrial uses. They also regularly carry high volumes of through traffic, or are projected to do so in the near future. As such, critical attention must be given to ensure the safety of access points for individual properties along these roadways.

         b.   Before authorizing such a Special Use, the Board shall give due consideration to the number, location, and design of existing and proposed driveway(s) of the property and their consistency with all applicable driveway construction standards, including the requirements of Chapter 140 of this Code of Ordinances.

         c.   The Board is authorized to impose such requirements and conditions as is deemed necessary for the protection of neighboring properties and the public interest, including, but not limited to:

            Shared access between 2 or more businesses in close proximity, including consolidation of driveways, or the use of shared access parking lots

            Construction of a frontage or backage road, parallel to the arterial street, for accessing multiple businesses

            Access restrictions in close proximity to a signalized intersection (within 300 feet)

   B.   Evaluation Process for Special Uses.

      (1)   Before authorizing a Special Use, the Board shall give due regard to the nature and condition of all adjacent uses and structures, and their consistency with the proposed use or development.

      (2)   The Board shall deny a Special Use if it determines any of the following conditions to be true:

         a.   The proposed use is inconsistent with the Comprehensive Plan.

         b.   The proposed use would be considered hazardous, harmful, or offensive, by reason of noise, smoke, odor, vibration, dust and dirt, cinders, noxious gases, glare and heat, fire and safety hazards, sewage wastes and pollution, transportation and traffic, aesthetic and psychological effects.

         c.   The proposed use would be substantially injurious to the present or future use and enjoyment of properties in the immediate vicinity.

         d.   The proposed use would substantially diminish or impair property values in the immediate vicinity.

         e.   The proposed use would be detrimental to, or otherwise endanger the public health, safety, comfort, morals or general welfare of the community.

      (3)   The burden of proof that the proposed Special Use meets the standards of this Ordinance rests solely with the applicant. If the applicant fails to provide sufficient information and documentation that this is the case, the Board shall deny the Special Use.

      (4)   The Board may utilize and give recognition to those performance standards which are available in model codes or ordinances, or have been developed by planning, engineering, or similar professional research organizations, and can be applied to the proposed use to assist it in reaching a fair and objective decision.

      (5)   Upon authorization, the Board may impose such requirements and conditions for the particular Special Use, as are deemed necessary for the protection of adjacent properties and the public interest.

      (6)   A Special Use granted by the Board shall become null and void if the use for which it was granted has ceased to be present for more than one year.

   C.   Interpretation of Map. Where the street or lot layout actually on the ground or as recorded, differs from the street and lot lines indicated on the Zoning Map, the Board, after notice to the owners of the property and after public hearing, shall interpret the map in such a way as to carry out the intent and purposes of this Ordinance for the particular section or District in question. Administrative Review. The Board has the power to hear and decide appeals where it is alleged by the appellant that there is error in an order, requirement, decision, grant or refusal made by the Building Inspector in the enforcement of the provisions of the regulation.

   D.   Variances. In specific cases on appeal, the Board may authorize a variance from the terms of the regulation, in situations where, owing to special conditions, a literal enforcement of the provisions of the regulation will result in unnecessary hardship for the applicant.

      (1)   A variance may be appropriate in the following situations:

         a.   A property is exceptionally narrow, shallow, or otherwise oddly shaped, at the time of enactment of this Ordinance.

         b.   The property has exceptional topographic conditions, such as an excessive slope, or low elevation area prone to flooding.

         c.   The property has any other extraordinary and exceptional conditions or characteristics, in which use or development of the property would be heavily restricted by the literal enforcement of the provisions of this ordinance.

      (2)   In authorizing a variance, the Board may attach such conditions as it may deem necessary to the enforcement of the Ordinance, regarding the location, character and other features or the proposed building, structure, or use.

      (3)   No such variance shall be authorized by the Board unless it finds beyond reasonable doubt that all of the following conditions exist:

         a.   The owner has been deprived of all beneficial or productive use of their land, which cannot yield a reasonable return from any uses permitted in that Zoning District.

         b.   The plight of the owner is due to unique circumstances, and not to the general conditions of the neighborhood or District.

         c.   The use to be authorized by the variance will not alter the essential character of the neighborhood or District.

      (4)   No grant of variance shall be authorized unless the Board finds the specific circumstance is not representative of a common occurrence, which is likely to result in additional variance requests, to the extent that an amendment to the Ordinance may be necessary, to address this matter.

      (5)   The Board shall have no power to authorize a variance for the establishment of a nonconforming use where none previously existed.

      (6)   In considering a request for a variance from the regulations concerning signs, the Board shall give consideration and arrive at a finding on the following:

         a.   Shape and area of the lot in question.

         b.   Bulk and floor area of the main building or structure.

         c.   Setback of proposed sign from all property lines.

         d.   Zoning and use of surrounding lots.

         e.   Unusual or exceptional topography.

         f.   Compatibility with general intent of the Zoning Regulation to encourage development without detracting from the use and enjoyment of surrounding property.

4.   Action of Board of Adjustment.

   A.   Appeals. Pursuant to a decision on appeal, in accordance with the provisions of the Code of Iowa and of this Ordinance, the Board may reverse or affirm – wholly or partly – or modify the order, requirement, decision or determination being appealed from. It may also make any order, requirement, decision or determination as ought to be made, in the opinion of the Board. To that end, the Board has all the powers of the officer from whom the appeal is taken.

   B.   Variances. When authorizing a variance, no such action of the Board shall become effective until it is reviewed by the Council, provided such review occurs within thirty (30) days of such action. The Council may remand any decision to the Board for further study. The effective date of any action so remanded shall be 30 days from the date of the remand.

5.   Judicial Review. All final administrative decisions of the Board of Adjustment shall be subject to judicial review pursuant to the provisions of, and all amendments and modifications to Chapter 414 of the Code of Iowa.