Chapter 17-5
BOARD OF ADJUSTMENT
Sections:
17-5-1 Appointment—Term.
17-5-2 Powers and duties.
17-5-3 Organization.
17-5-4 Variance.
17-5-5 Building permits.
17-5-6 Notice to council of variance or building permit issuance.
17-5-7 Zone boundary adjustment.
17-5-8 Vote required for reversal.
17-5-9 Decision on appeal.
17-5-1 Appointment—Term.
The board of adjustment shall consist of five members and two alternates, each to be appointed by the mayor with the advice and consent of the city council from among qualified electors of the city for a term of five years, provided that the term of one member shall expire each year. Any member may be removed for cause by the appointing authority upon written charges and after public hearing, if such public hearing is requested. Vacancies shall be filled for the unexpired term of any member whose term becomes vacant. (Ord. 12-11-2001C § 2 (part), 2001)
17-5-2 Powers and duties.
The powers and duties of the board of adjustment shall be as follows:
A. To hear and decide special exceptions to the terms of the ordinance upon which such board is required to pass under such ordinances; and
B. To authorize upon appeal 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 result in unnecessary hardship, provided that the spirit of the ordinance shall be observed and substantial justice done. (Ord. 12-11-2001C § 2 (part), 2001)
17-5-3 Organization.
The board of adjustment shall elect a chair and may adopt such rules for its own proceedings as are deemed necessary. Meetings of the board shall be held at the call of the chair and at such other times as the board may determine. The chair, or when absent, the acting chair, may administer oaths and compel the attendance of witnesses. The board 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 records of its examinations and other official actions, all of which shall immediately be filed in the office of the recorder/clerk, which shall be the office of the board, and shall be a public record. (Ord. 12-11-2001C § 2 (part), 2001)
17-5-4 Variance.
Any person or entity desiring a waiver or modification of the requirements of the zoning ordinance as applied to a parcel of property that he owns, leases, or in which he holds some other beneficial interest may apply to the board of adjustment for a variance from the terms of the zoning ordinance.
A. Standards. The board of adjustment may grant a variance only if:
1. Literal enforcement of the zoning ordinance would cause an unreasonable hardship for the applicant that is not necessary to carry out the general purpose of the zoning ordinance;
2. There are special circumstances attached to the property that do not generally apply to other properties in the same district;
3. Granting the variance is essential to the enjoyment of a substantial property right possessed by other property in the same district;
4. The variance will not substantially affect the general plan and will not be contrary to the public interest; and
5. The spirit of the zoning ordinance is observed and substantial justice done.
B. Unreasonable Hardship. In determining whether or not enforcement of the zoning ordinance would cause unreasonable hardship, the board of adjustment may not find an unreasonable hardship unless the applicant proves that the alleged hardship:
1. Is located on or associated with the property for which the variance is sought;
2. Comes from circumstances peculiar to the property, not from conditions that are general to the neighborhood. Special circumstances must:
a. Relate to the hardship complained of; and
b. Deprive the property of privileges granted to other properties in the same district.
C. Additional Requirements. In granting a variance, the board of adjustment may impose additional requirements on the applicant that will:
1. Mitigate any harmful affects of the variance; or
2. Serve the purpose of the standard or requirement that is waived or modified. (Ord. 12-11-2001C § 2 (part), 2001)
17-5-5 Building permits.
The building official shall not issue any building permit for any building, construction or repair of any building unless such fully conforms to all zoning regulations or ordinances of this municipality in effect at the time of application. No permit shall issue for any building or structure or part thereof on any land located between the mapped lines of any street as shown on any official street map adopted by the governing body. However, the board of adjustment shall have the power, upon an appeal filed with it by the owner of any such land, to authorize the grant of a permit for a building or structure or any part thereof within any mapped street located in any case in which the board of adjustment upon the evidence finds: (1) that the property of the appellant of which such mapped street location forms a part will not yield a reasonable return to the owner unless such permit be granted; or (2) that balancing the interest of the municipality in preserving the integrity of the official map and the interest of the owner in the use and benefits of the property, the grant of such permit is required by consideration of justice and equity. Before taking any such action, the board of adjustment shall hold a public hearing thereon. In the event that the board of adjustment decides to authorize a building permit, it shall have the power to specify the exact location, ground area, height, and other details and conditions of extent and character and also the duration of the building, structure, or part thereof to be permitted. (Ord. 12-11-2001C § 2 (part), 2001)
17-5-6 Notice to council of variance or building permit issuance.
Before any application for a variance or building permit shall be issued, the board of adjustment shall give the governing body at least fifteen days’ notice of the application. The governing body shall have the opportunity to respond and comment on the application within the fifteen days. (Ord. 12-11-2001C § 2 (part), 2001)
17-5-7 Zone boundary adjustment.
Where a zone boundary line divides a lot in a single ownership at the time of the passage of this title, the board may permit a use authorized on either portion of such lot to extend not more than fifty feet into the other portion of the lot. (Ord. 12-11-2001C § 2 (part), 2001)
17-5-8 Vote required for reversal.
The concurring vote of three members of the board shall be necessary to reverse any order, requirement or determination of any such administrative official, or to decide in favor of the appellant on any matter upon which it is required to pass under any such ordinance, or to effect any variation in such ordinance. (Ord. 12-11-2001C § 2 (part), 2001)
17-5-9 Decision on appeal.
In exercising the above-mentioned powers, the board may in conformity with the provisions of this title affirm, wholly or partly, or may modify the order, requirement, decision or determination as ought to be made, and to that end shall have all the powers of the officer from whom the appeal is taken. (Ord. 12-11-2001C § 2 (part), 2001)