Williston City Zoning Code
SECTION 28
Board of adjustments/appeals.
[Ord. No. 613, Ord. No. 840, Ord. No. 850]
A.
Establishment. The City Commission may establish a Board of Adjustments which shall consist of five members to be appointed by the City Commission, each for a term of three years. Members of the Board of Adjustments may be removed from office by the City Commission for cause upon written charges and after public hearing. Vacancies shall be filled by resolution of the City Commission for the unexpired term of the member affected. The City Commission shall sit as the Board of Adjustments if the City Commission does not establish a Board of Adjustments.
It is the intent of this ordinance that all questions of interpretation and enforcement shall be first presented to the Building Official concerning enforcement issues and to the City Planner for administration issues, and that such questions shall be presented to the Planning and Zoning Board only on appeal from the decision of the Building Official or City Planner and after review and written findings are first made by the Planning and Zoning Commission, and that recourse from the decisions of the Board of Adjustments shall be to the courts as provided by law and particularly by Chapter 40-47, North Dakota Century Code.
It is further the intent of this ordinance, that if the City Commission appoints a separate Board of Adjustments, the duties of the City Commission in connection with this ordinance shall not include hearings and deciding questions of interpretation and enforcement that may arise. The procedure for deciding such questions shall be as stated in this section and this ordinance. If a separate Board of Adjustments is appointed, the City Commission shall have only the duties of:
B.
Powers and duties. The Board of Adjustments shall adopt rules necessary to the conduct of its affairs and in keeping with the provisions of this ordinance. Meetings 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 shall be open to the public. The Board of Adjustments shall keep minutes of its proceedings, showing the vote of each member upon each question, or if absent or failing to vote indicating such fact, and shall keep record of its examinations and other official actions, all of which shall be a public record and be immediately filed in the office of the Board.
The Board of Adjustments shall have the following powers and duties:
1.
Administrative review. To hear and decide appeals where it is alleged there is an error in any order, requirements, decision, or determination made by the Building Official or City Planner or the Planning and Zoning Commission in the administration or enforcement of this ordinance.
2.
Variances. To authorize upon appeal in specific cases such variance from the terms of this ordinance as will not be contrary to the public interest where, owing to special conditions, a literal enforcement of the provisions of this ordinance would result in unnecessary hardship.
a.
A variance from the terms of this ordinance shall not be granted by the Board of Adjustments unless and until a written application for a variance is submitted demonstrating:
(i)
The special conditions and circumstances exist which are peculiar to the land, structure, or building involved and which are not applicable to other lands, structures, or buildings in the same district.
(ii)
That literal interpretation of the provision of this ordinance would deprive the applicant of rights commonly enjoyed by other properties in the same district under the terms of this ordinance.
(iii)
That the special conditions and circumstances do not result from the actions of the applicant.
(iv)
That granting the variance requested will not confer on the applicant any special privilege that is denied by this ordinance to other lands, structures, or buildings in the same district.
b.
No nonconforming use of neighboring lands, structures, or buildings in the same district, and no permitted or nonconforming use of lands, structures, or buildings in other districts shall be considered grounds for the issuance of a variance. The procedure by which a variance shall be considered is as follows:
(i)
Notice of Public Hearing shall be given by the Planning and Zoning Commission. Notice of said Public Hearing shall be published once a week for two successive weeks prior to the time set for said hearing in the official paper of the City of Williston.
(ii)
The Public Hearing shall be held by the Planning and Zoning Commission. Any part may appear in person, or by agent, or by attorney.
(iii)
The Planning and Zoning Commission shall make written findings that the requirements of Section 28.B.2 have been met by the applicant for a variance.
(iv)
The Planning and Zoning Commission shall further make a written finding that the reasons set forth in the application justify the granting of the variance, and that the variance is the minimum variance that will make possible the reasonable use of the land, building, or structure.
(v)
The Planning and Zoning Commission shall further make written findings that the granting of the variance will be in harmony with the general purpose and intent of this ordinance, and will not be injurious to the neighborhood, or otherwise detrimental to the public welfare.
(vi)
Upon receipt of the written findings of the Planning and Zoning Commission, or in the event of the failure of the Planning and Zoning Commission to so report within 90 days after receipt of the written application for the variance, the Board of Adjustments shall hold a hearing to decide the variance. Any party may appear at the hearing in person, by agent, or by attorney. If the decision of the Board should differ from the findings of the Planning and Zoning Commission, the Board of Adjustments shall prepare a written report stating the findings on which their decision was made.
c.
In granting any variance, the Board of Adjustments may prescribe the appropriate conditions and safeguards in conformity with this ordinance. Violation of such conditions and safeguards, when made a part of the terms under which the variance is granted, shall be deemed a violation of this ordinance and punishable under Section 26.F of this ordinance. Under no circumstances shall the Board of Adjustments grant a variance to allow a use not permissible under the terms of this ordinance in the district involved, or any use expressly or by implications prohibited by the terms of this ordinance in said district.
3.
Board of adjustments having powers of the planning and zoning commission on appeals. In exercising the above-mentioned powers, the Board of Adjustments may, so long as such action is in conformity with the terms of this ordinance, reverse or affirm, wholly or partly, or may modify the order, requirement, decision, or determination as ought to be made, and to that end shall have the powers of the Planning and Zoning Commission from whom the appeal is taken.
The concurring vote of 4 members of the Board of Adjustments shall be necessary to reverse any order, requirements, decision, or determination of the Planning and Zoning Commission, or to decide in favor of the applicant on any matter upon which it is required to pass under this ordinance, or to affect any variation in the application of this ordinance.
C.
Remedies.
1.
Hearings, appeal, and notices. Appeals to the Board of Adjustments concerning interpretation or administration of this ordinance may be taken by any person aggrieved or by any officer or bureau of the Governing Body of the City affected by any decision of the Building Official or City Planner or Planning and Zoning Commission. Such appeals shall first be reviewed by the City of Williston Planning and Zoning Commission unless they made the decision being appealed. The City Planner shall present to the Planning and Zoning Commission all papers constituting the record upon which the appealed action was taken. Written findings on the appeal shall be forwarded to the Board of Adjustments within a reasonable time, not to exceed 30 days after the receipt of the appeal. The City Planner shall forthwith transmit to the Board of Adjustments the final report of the Planning and Zoning Commission and all other papers constituting the record upon which the appealed action was taken. The Board shall fix a reasonable time for the hearing of appeals, give public notice thereof, as well as due notice to the parties in interest and decide the same in reasonable time. At the hearing, any party may appear in person, or by agent or attorney.
2.
Stay of proceedings. An appeal stays all proceedings in furtherance of the action appealed from, unless the City Planner certifies to the Board of Adjustments, within 10 days after the notice of appeal is filed, that by reason of facts stated in the certificate, a stay would, in the Planner's opinion, cause imminent peril to life and property. In such case, proceedings shall not be stayed other than by a restraining order which may be granted by the Board of Adjustments or by a court of record on application, on notice to the City Planner or Planning and Zoning Commission from whom the appeal is taken and on due cause shown. Upon satisfactory proof that delay caused by the appeal will result in financial loss to any person, the Board of Adjustments shall fix a bond or cash deposit in an amount to be determined by the Board of Adjustments but no less than the amount shown by the party harmed by the delay. This provision shall not apply to the City, its department heads, employees, or representatives. Should appellant not prevail, the bond or cash deposit may be used to offset financial losses caused by the appeal as directed by the Board of Adjustments.
3.
Appeals from the Board of adjustments. Any person or persons, or any board, taxpayer, department, board or bureau of the City who has a legal interest which is immediately, directly and adversely affected by any decision of the Board of Adjustment may seek review by the court of record of such decision, in the manner provided by the laws of the State of North Dakota and particularly by Chapter 40-47, North Dakota Century Code.
4.
An appeal must be filed with the City Auditor within 15 days of the date the order or decision being appealed is served upon an aggrieved party. If no service is made, the aggrieved party shall have 30 days from the date such order or decision is signed to file a written notice of appeal. The Auditor shall deliver the appeal notice to the chairman of the Planning and Zoning Commission and a copy of such appeal to the City Planner.
5.
Notice of appeal shall describe the order being appealed; the basis of such appeal; the name, address and telephone number of the appealing party; and the right or interest which has been adversely affected.