2-2-1: CREATED:
2-2-2: MEMBERSHIP:
2-2-3: ORGANIZATION:
2-2-4: MEETINGS:
2-2-5: APPEALS:
2-2-6: VARIANCES:
2-2-7: SPECIAL PERMITS:
2-2-8: INTERPRETATION:
2-2-9: EXEMPTIONS FOR PUBLIC CONVENIENCE AND WELFARE:
2-2-10: JUDICIAL REVIEW:
2-2-1: CREATED:
In order to carry out the provisions of state law relating to planning and zoning, there is created a board of adjustment, which shall act as the municipal appeal authority. (1991 Code § 2.44.010, as amended; amd. 2009 Code)
2-2-2: MEMBERSHIP:
A. Number; Prohibited Appointments: The board of adjustment shall consist of five (5) members. Elected city officials or members of the planning commission cannot be appointed to the board of adjustment.
B. Appointment, Vacancies, Removal: Members of the board of adjustment shall be appointed by the mayor, with the advice and consent of the city council. Any member may be removed for cause by the city council upon written charges and after public hearing, if such public hearing is requested by the member. Vacancies shall be promptly filled by appointment for the unexpired term of any member whose term becomes vacant.
C. Term Of Office: The term of service on the board of adjustment shall be five (5) years, except that the term of service for the first board of adjustment shall be such that the term of one member shall expire each year during the first five (5) years. One member shall be appointed on or before the second Thursday in February of each year. (1991 Code § 2.44.020, as amended)
2-2-3: ORGANIZATION:
A. Chairperson: The mayor, with the advise and consent of the city council, shall, on or before the second Thursday in February of each year, appoint one of the board members to serve as chairperson.
B. Adopt Rules And Regulations: The board members may adopt rules and regulations for the transaction of business and conducting meetings of the board.
C. Acting Chairperson: The board shall select from the board an acting chairperson to serve in the absence of the chairperson. (1991 Code § 2.44.030, as amended)
2-2-4: MEETINGS:
A. Open And Public Meetings: Meetings of the board shall be held at the call of the chairperson and at such other times as the board may determine. All meetings of the board shall be open to the public and shall convene only when a quorum of at least three (3) members are present.
B. Witnesses, Oaths: The chairperson of the board or, in his absence, the acting chairperson may compel the attendance of witnesses and administer oaths.
C. Public Records; Reports: Reports of official acts of the board of adjustment shall be public and a report shall be made to the governing body by the city manager. The city manager shall be responsible for the taking and keeping of the minutes of the proceedings of all meetings, and preserving said minutes.
D. Fees: All fees associated with functions of the board of adjustment shall be set by resolution or ordinance of the city council. (1991 Code § 2.44.040, as amended; amd. 2009 Code)
2-2-5: APPEALS:
A. Authorized: The board of adjustment shall hear appeals from any person or from any officer, department, board or bureau of the city affected by any decision of an administrative officer applying the municipal land use ordinances, wherein it is alleged that there has been any error in any order, requirement, or decision or determination made by such officer in the enforcement of the land use ordinance, except for an appeal of a decision under subsection 10-15-2G of this code. (1991 Code § 2.44.050, as amended; amd. 2009 Code)
B. Filing Appeal: Such appeal shall be taken within a reasonable time as provided by the rules of the board by filing with the officer from whom the appeal is taken and with the board of adjustment a notice of appeal specifying the grounds thereof. The officer from whom the appeal is taken shall forthwith transmit to the board of adjustment all the papers constituting the record upon which the action appealed from is taken.
C. Notice Of Hearing: The board of adjustment shall fix a reasonable time for the hearing of the appeal, give public notice thereof as well as due notice to the parties in interest, and shall decide the same within a reasonable time. Upon the hearing, any party may appear in person or by agent or by attorney.
D. Decision: Upon appeal and after due consideration of evidence, the board may reverse, affirm or modify an order or decision of the administrative officer as necessary to correct any error and bring the order or decision into conformity with the provisions of the land use ordinances. To this end, the board shall have all the powers of the officer from whom the appeal is taken.
E. Vote Necessary: The concurring vote of three (3) members of the board shall be necessary for a decision.
F. Stay Of Proceedings; Exception: An appeal stays all proceedings in furtherance of the action appealed from, unless the officer from whom the appeal is taken certifies to the board of adjustment after the appeal shall have been filed with him that by reason of facts stated in the certificate a stay would in his opinion cause imminent peril to life or property. In such case, proceedings shall not be stayed otherwise than by restraining order which may be granted by the board of adjustment or by the district court on application and notice and due cause shown. (1991 Code § 2.44.050, as amended)
2-2-6: VARIANCES:
A. Application: The applicant for a variance shall submit an application in writing to the city recorder. Such application shall describe the variance requested, and present all applicable information regarding measurements and uses and, in particular, shall state how each of the requirements for a variance is met.
B. Notice Of Hearing: The board of adjustment shall fix a reasonable time for hearing of the application, give public notice thereof, as well as due notice to the parties in interest, and shall hold the hearing and render a decision within a reasonable time. At the hearing, any party may appear in person or by agent or by attorney.
C. Conditions And Limitations: After due consideration of applicable facts and circumstances, the board of adjustment may grant a variance from the terms of a land use ordinance, provided all of the following conditions and limitations are met:
1. The variance will not be contrary to the public interest;
2. Owing to special conditions, a literal enforcement of the provisions of a land use ordinance will result in unnecessary hardships and difficulties;
3. The spirit of a land use ordinance will be observed;
4. Substantial justice shall be done;
5. The variance will not substantially affect the comprehensive plan of zoning in the city;
6. Special circumstances are attached to the property covered by the application which do not generally apply to the other property in the same district;
7. Because of special circumstances, property covered by the application is deprived of privileges possessed by other properties in the same district, and that the granting of the variance is essential to the enjoyment of a substantial property right possessed by other property in the same district. Variances shall not be used to circumvent the provisions of a land use ordinance, or to grant benefits and advantages generally denied by a land use ordinance.
D. Vote Necessary: The concurring vote of three (3) members of the board shall be necessary for approval of a variance. (1991 Code § 2.44.060, as amended)
2-2-7: SPECIAL PERMITS:
A. Extension Of Uses: Where a zone boundary line divides a lot in single ownership at the time of the passage of the zoning ordinance, the board may permit a use authorized on either portion of such lot to extend not more than one hundred fifty feet (150') into the other portion of the lot.
B. Building Permitted Where No Frontage On Public Street: The board may permit the building of a dwelling upon a lot which does not have a frontage on a street, provided:
1. The owner of the lot also owns or has a permanent easement for a right of way at least twelve feet (12') wide connecting the lot to a street;
2. Area and distance between buildings and adjacent property lines meet area and distance requirements for the zone in which the lot is located;
3. A storm drain is installed or determined by the city engineer to be unnecessary to protect adjoining property from additional water runoff due to the buildings and associated hard surfacing under ordinary storm conditions.
C. Parking Reduction1: The board may reduce the amount of off street parking required, where acquisition of land for such use would cause exceptional hardship. (1991 Code § 2.44.070, as amended)
D. Lot Division: In all residential zones, except the R-1 zone, where an existing parcel of land is at least one and one-half (11/2) times as wide and one and one-half (11/2) times as large in area, as required for a lot in the zone, the board may permit the subdivision of the parcel into two (2) equal lots. (Ord. 2006-03, 6-7-2006)
E. Nonconformities2: The board may permit the enlargement of or addition to or relocation on a lot of a nonconforming or noncomplying building or structure, or a building or structure occupied by a nonconforming use, provided: (1991 Code § 2.44.070, as amended; amd. 2009 Code)
1. After the enlargement or addition, the percentage of total lot occupied by buildings will not exceed sixty (60), and the percentage of rear yard occupied by accessory buildings in a residential zone will not exceed twenty five (25);
2. If a nonconforming or noncomplying building already occupies required yard space required by the zone in which nonconformance is located, the distance between the building and the property line bordering such required yard space shall not be decreased;
3. Any associated expansion of a nonconforming use shall not involve any increase in intrusion of adjacent or surrounding properties with objectionable smoke, dust, noise, odors or fumes, or of heat, light or electromagnetic energy intensities above the existing ambient levels.
F. Temporary Buildings: The board may permit a temporary building or trailer for commerce or business or residential use, which building is incidental to a permitted use, such permit to be issued for a period of not more than one year. An additional one year extension may be permitted after reapplication to the board.
G. Vote Necessary: A concurring vote of three (3) members of the board shall be necessary for approval of a special permit. (1991 Code § 2.44.070, as amended)
2-2-8: INTERPRETATION3:
The board shall interpret the location of zone boundaries only when uncertainty exists and the rules for boundary location, as delineated in title 10 of this code, do not clarify their exact location. (1991 Code § 2.44.080, as amended)
2-2-9: EXEMPTIONS FOR PUBLIC CONVENIENCE AND WELFARE:
A. Application: An application for a public convenience and welfare exemption shall be submitted to the board of adjustment by the applicant. The application shall show the proposed location, description and use of the building or structure proposed for exemption from the zoning ordinance, and in particular shall explain why the building or structure is considered reasonably necessary for the convenience and welfare of the public.
B. Notice Of Hearing: The board of adjustment shall receive the application, set a reasonable time for a hearing, give public notice as well as due notice to the parties in interest, conduct the hearing, and render a decision within a reasonable period of time.
C. Grant Of Exemption: The board may grant an exemption from the zoning ordinance to any building or structure for which satisfactory proof shall be presented to the board that such building or structure is reasonably necessary for the convenience or welfare of the public.
D. Vote Necessary: A concurring vote of three (3) members of the board shall be necessary for a decision. (1991 Code § 2.44.090, as amended)
2-2-10: JUDICIAL REVIEW:
The city or any person aggrieved by any decision of the board of adjustment may have and maintain a plenary action for relief therefrom in any court of competent jurisdiction; provided, petition for such relief is presented to the court within thirty (30) days after the filing of such decision in the office of the city recorder. (1991 Code § 2.44.100, as amended)
Footnotes
Footnote 1: See title 10, chapter 13 of this code for parking regulations.
Footnote 2: See title 10, chapter 12 of this code.
Footnote 3: See also subsection 10-4-4C of this code.