Chapter 18.145
BOARD OF ADJUSTMENT
Sections:
18.145.010 Creation, membership, terms of office, and vacancies.
18.145.040 Appeals, hearings, and notices.
18.145.050 Stay of proceedings.
18.145.060 Powers and duties of the board.
18.145.070 Decisions of the board.
18.145.080 Limitations of the powers of the board.
18.145.090 Appeals from the board.
18.145.100 Fees and notice of publication.
18.145.110 Deliberations of the board.
18.145.010 Creation, membership, terms of office, and vacancies.
A. There is hereby created a board of adjustment to be composed of the six members of the town council and the mayor.
B. The members will concurrently be appointed to the board of adjustments upon being sworn into office as a town council member or mayor.
C. The members of the board of adjustment shall serve on the board for the duration of their elected council or mayoral term of office. (Ord. 06-10, 2006; prior code § 17-30-1)
18.145.020 Procedures.
A. The board of adjustments shall meet on an as needed basis when an application for remedy is received and presented to the board of adjustments by the town’s building official. Appropriate notice shall be given to all concerned parties.
B. The mayor shall serve as the chairperson of the board of adjustments. In the mayor’s absence, the mayor pro tem shall serve as the chairperson of the board of adjustments.
C. The chairperson shall vote on matters before the board of adjustments only in the event of a tie vote.
D. A record of its findings, decisions, and actions shall be kept and reported at the next regular or special town council meeting.
E. Any findings, rulings or decisions of the board relating to this title shall be an order of business at a regular or special town council. (Ord. 06-10, 2006; prior code § 17-30-2)
18.145.030 Powers.
The authority of the board shall extend to interpretation of this title and to the granting of variances and to the adjustment of regulations to overcome practical difficulties and prevent unnecessary hardship in the application of this title. The board of adjustment shall have the power to:
A. Interpret this title when the meaning of any word or phrase of a section is in doubt, when there is dispute as to such meaning between the appellant and the enforcing officer, or when the location of a zone boundary is in doubt.
B. Allow the extension of a zone where the boundary line thereof divides a lot in one ownership at the time of enactment of this title.
C. Hear and decide appeals where it is alleged by the appellant that there is error in any order, requirement, decision, grant or refusal made by the building inspector in the enforcement of the provisions of this title.
D. Allow a reduction of building site area and yard requirements where, in its judgment, the shape of the building site, topography, the location of existing buildings, or other conditions make a strict compliance with said regulations impossible without practical difficulty or hardship, but in no case, except as hereinafter provided, shall these regulations be reduced in such manner as to violate the intent and purpose of this title.
E. On recommendation of the planning and zoning commission, to authorize a variance of area requirements for portions of a new subdivision presented to the planning and zoning commission for its approval after the effective date of this title, wherein because of special problems of terrain and topography, it is economically unfeasible and physically impractical to enforce the minimum area requirements of the zone applied to said subdivision, provided the total substandard areas do not exceed 10 percent of the area of said subdivisions.
F. Allow the construction of commercial buildings with sidewalks, arcades or similar architectural features where such construction requires a variance of front yard regulations and is in conformity with a general architectural plan applicable to the entire frontage of a block or where such construction would permit the widening of the adjacent street or thoroughfare.
G. Permit in any zone such modification of the requirements of this title as said board may deem necessary to secure an appropriate development of a building site, where adjacent to such site there are buildings or uses that do not conform to regulations prescribed by this title for the zone in which these buildings or uses are located.
H. Authorize the temporary use of a building or premises in any zone, for a purpose or use that does not conform to the regulations of this title; provided, that such use be of a true temporary nature and does not involve the erection of a substantial building. Such permit shall be in the form of a temporary and revocable permit, normally not to exceed one year, subject to such conditions as will safeguard the public health, safety, convenience and general welfare. A specific limitation of time for which such permit shall be valid will be stipulated by the board. Violation of any such condition shall be a violation of this title, and such violation shall render the conditional permit null and void. This chapter does not apply to the use of a house trailer in any residential zone, where the use of such trailers for permanent residential purposes is prohibited.
I. Rules of Procedure. The board shall adopt rules as necessary to the conduct of its affairs, and in keeping with the provisions of these regulations. (Ord. 06-10, 2006; prior code § 17-30-3)
18.145.040 Appeals, hearings, and notices.
A. Appeals. Appeals to the board concerning interpretation or administration of these regulations may be taken by any person aggrieved, by any officer of the municipality, or by any federal, state or county agency, or school board, affected by any decision of the building official. Such appeals shall be filed within 30 days with the board through the building official and shall specify the grounds thereof. The building official shall forthwith transmit to the board all papers constituting the record upon which the action appealed was taken.
B. Hearings. The board shall fix a reasonable time for the hearing of an appeal, give public notice thereof as well as due notice to the parties in interest, and reach its decision within a reasonable time. At the hearing, any party may appear in person or by agent or attorney. Parties to an appeal shall have the right to present their case by oral or documentary evidence, to submit rebuttal evidence, and to conduct such cross-examination of witnesses as may be required for a full and true disclosure of the facts; provided, that:
1. The submission of documentary evidence shall not, by reason of its written form, prejudice the interest of any party.
2. The board shall, as a matter of policy, provide for the exclusion of irrelevant, immaterial, or unduly repetitious evidence, and in furtherance of this policy, may limit cross-examination. (Ord. 06-10, 2006; prior code § 17-30-4)
18.145.050 Stay of proceedings.
An appeal stays all proceedings in furtherance of the action appealed from, unless the building official certifies to the board after the notice of appeal is filed with him, that by reason of facts stated in his certificate, a stay would, in his 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 or by a court of record on application, on notice to the building official, and on due cause shown. (Ord. 06-10, 2006; prior code § 17-30-5)
18.145.060 Powers and duties of the board.
It shall be the duty of the board to interpret the provisions of the planning and zoning regulations and to grant special exceptions to and variances from the provisions of the planning and zoning regulations, as hereinafter specified.
A. Interpretation. The board shall:
1. Hear and decide appeals where it is alleged that there is error in any order, requirement, decision, or determination made by the building official in the enforcement of these regulations.
2. Hear and decide all matters referred to it by the building official on which it is authorized to pass as prescribed by the planning and zoning regulations.
3. Render an advisory decision or opinion on any matter referred to it by the building official, when in his judgment such action is necessary or desirable in carrying out the spirit and intent of these regulations.
B. Special Exceptions. The board shall:
1. Hear and decide only such special exceptions on which it is specifically authorized to pass, as prescribed by these regulations.
2. Decide those questions which are involved in determining whether a special exception should be granted.
3. Grant special exceptions under such conditions and safeguards as are deemed appropriate under these regulations, or deny same when not in harmony with the purpose and intent of the planning and zoning regulations.
4. In granting a special exception, impose such conditions and safeguards as are appropriate to ensure that the purpose and intent of these regulations will be carried out. Failure to fulfill such conditions and safeguards, when made a part of the terms under which a special exception is granted, shall be deemed a violation of these regulations and punishable under the penalties section of these regulations. In determining the conditions and safeguards under which a special exception will be granted, the board shall ensure that:
a. All proposed buildings, structures, and uses will be readily accessible for fire and police protection.
b. The proposed use will not cause traffic congestion or movement which will seriously affect the character of the district in which it is proposed.
c. Sufficient space, in conformance with provisions of these regulations, will be provided for the off-street parking of all vehicles attracted to the premises.
d. A proposed building will not, by reason of its size, character, location or intended use, be essentially out of harmony with the predominant type of building or use permitted in the district.
5. Prescribe a time limit within which the action for which a special exception is granted shall be begun, or completed, or both. Failure to begin or complete, or both, such action within the time limit prescribed, shall void the special exception.
6. Grant a special exception only when and after:
a. A written application for a special exception is submitted indicating the section of these regulations under which the special exception is sought and stating the grounds on which it is requested.
b. A public hearing has been held.
c. Notice of public hearing has been posted on the property in question and at the Town Hall, and the owner and applicant or his agent shall have been notified by certified mail at least 15 days in advance.
d. The board specifically finds that it is empowered under the section of these regulations described in the application to grant the special exception, and that granting the special exception will not adversely affect the public interest.
C. Variances. Upon appeal in specific cases, the board shall authorize such variances from the terms of these regulations as will not be contrary to the public interest where, owing to special conditions, a literal enforcement of the provisions of these regulations would result in unnecessary hardship. A variance shall not be granted by the board unless and until:
1. A written application for variance is submitted demonstrating:
a. That 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.
b. That literal interpretation of the provisions of these regulations would deprive the applicant of rights commonly enjoyed by other properties in the same district under the terms of these regulations.
c. That the alleged hardships caused by literal interpretation of the provisions of these regulations do not result from the actions of the applicant.
d. That granting the variance requested will not confer upon the applicant any special privilege that is denied by these regulations to other lands, structures, or buildings in the same district.
e. That granting the variance requested will not interfere or injure the rights of other properties in the same district.
2. A public hearing has been held.
3. Notice of public hearing has been given in accordance with requirements set forth under subsection (B)(6)(c) of this section.
4. The board finds 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 land, building, or structure.
5. The board finds that granting of the variance will be in harmony with the general purpose and intent of these regulations, and will not be injurious to the neighborhood, or otherwise detrimental to the public welfare.
In granting any variance, the board may prescribe appropriate conditions and safeguards in conformity with these regulations. Failure to fulfill such conditions and safeguards, when made a part of the terms under which a variance is granted, shall be deemed a violation of these regulations.
No nonconforming use of neighboring lands, structures, or buildings, in the same district, and no permitted use of lands, structures or buildings in other districts, shall be considered grounds for issuance of a variance.
Under no circumstances shall the board grant a variance to allow a use not permissible under the terms of these regulations in the district involved, or any use expressly or by implication prohibited by the terms of these regulations in said district. (Ord. 06-10, 2006; prior code § 17-30-6)
18.145.070 Decisions of the board.
In exercising its powers and duties, the board may, so long as such action is in conformity with the terms of these regulations, reverse or affirm, wholly or partly, or may modify the order, requirement, decision, or determination appealed from and may make such order, requirement, decision, or determination as ought to be made, and to that end shall have the powers of the building official from whom the appeal is taken to reverse an order, requirement, decision, or determination of the building inspector, or grant a variance or a special exception. The concurring vote of three members shall be required in all decisions of the board. (Ord. 06-10, 2006; prior code § 17-30-7)
18.145.080 Limitations of the powers of the board.
Nothing herein contained shall be construed to empower the board to change the terms of these regulations, to affect changes in the zoning map, or to add to the uses permitted in any district.
Every decision of the board shall be based upon findings of fact, and every finding of fact shall be supported in the record of its proceedings. The enumerated conditions required to exist on any regulations shall be construed as limitations on the power of the board to act. A mere finding or recitation of the enumerated conditions, unaccompanied by the findings of specific fact shall not be deemed findings of fact, and shall not be deemed in compliance with these regulations. (Ord. 06-10, 2006; prior code § 17-30-8)
18.145.090 Appeals from the board.
A person aggrieved by a decision of the board, or a taxpayer, or municipal officer may, at any time within 30 days after the filing of the decision in the office of the board, petition a writ of certiorari for review of the board’s decision. Allowance of the writ shall not stay proceedings upon the decision appealed from, but the court may, on application, on notice to the board and for good cause shown, grant a restraining order, and on final hearing may reverse or affirm, wholly or partly, or may modify the decision reviewed. (Ord. 06-10, 2006; prior code § 17-30-9)
18.145.100 Fees and notice of publication.
A. Upon filing an application or appeal, the applicant shall pay a filing fee to the town clerk in accordance with a schedule established, and posted in the office of the building official. No part of any such fee shall be returnable after an application is filed and such fee paid.
In the case of an application for a variance or special exception to more than one provision of these regulations, the filing fee shall be the total for all provisions.
B. The petitioner(s) are also responsible for the costs associated with the necessary publications and notifications of property owners by certified mail. A deposit shall be collected in accordance with a schedule established, in addition to the application fee, to cover such costs. (Ord. 16-17 § 2, 2016; Ord. 06-10, 2006; prior code § 17-30-10)
18.145.110 Deliberations of the board.
Inasmuch as the deliberations, opinions and findings of the board in all matters which may come before it for action are similar to that of a court, the minds of its several members should remain unbiased and free to act upon the evidence and arguments submitted at the hearing. No member of this board shall hold conversation with any person concerning the merits of any matter pending before it at any time until final action thereon, except at an open hearing of said board and shall so advise any person unbiased and free to act upon the evidence and arguments submitted at the hearing, no member of this board shall hold conversation with any person concerning the merits of the matter pending before it at any time. (Prior code § 17-30-11)